Commonwealth v. Hall , 622 Pa. 396 ( 2013 )

Justice, EAKIN,

dissenting.

The majority finds two “difficulties” with the condition imposed here: the first involves transferring child support factors into probationary factors, and the second suggests the award here is speculative to the point of potential arbitrariness. See Majority Op. at 1215-17. I respectfully dissent, as there is no “award of child support” here. Appellant has introduced the Straw Man of child support laws and procedures into the considerations of criminal sentencing, as if the former was the purpose of the order, thus shifting perception away from the actual rehabilitative goals of the probationary sentence. When the Straw Man enters the argument, the wrong question gets answered.

The payments ordered were to be rehabilitative in nature — they are not imposed as a means of realistically supporting the children. They were meant as a contribution toward their maintenance which in turn will foster some therapeutic realization by the defendant of the magnitude and range of damage caused by his violent act. As such, it is misleading to analyze this payment as an award made under our child support laws. The factors that bear on the amount of a child support award do not play into the stated goal of Judge Sarmina here, and attempting to “transfer” the factors of the former into the goal of the latter is like transferring the proverbial square peg into the round hole.

I agree the amount imposed may be called speculative, but this was necessary, as the payments were not to take effect until the defendant was released. It was to be based on ability to pay, but no one knew at the time of sentence what that would be — beyond setting a minimum, the judge could not fix a proper amount at the time of sentence. The judge noted that problems paying the minimum would be reviewable. I see no error in deferring the actual payments until the court knew if the defendant was working at Wal-Mart or Wall Street, particularly where the focus is on rehabilitative effect rather than actual needs of the children. Since it is not intended to serve the same purpose as a “regular” support order, the amount was not dependent on guidelines, for “child support matters” were not the aim of the order.

If this were a judge entering a support order against a parent, the present order would be improper, but that is not what the judge was doing. Ergo, there is no error in failing to consider what statutes require for an order designed to apply to someone with a natural obligation to support their child. There is no need for “transference” of concepts, nor to invite legislative involvement in enunciating factors relevant to judicial sentencing options. As such, I respectfully dissent.