Background
Dakota Proctor-Burch took control of his wife’s Snapchat account, posed as her, distributed intimate images without consent, and tried to persuade another man to break into her home and force sex on her while she resisted. According to the criminal complaint, he admitted acting because he was angry with her. Prosecutors charged solicitation of rape, unlawful computer use, criminal use of a communication facility, and unlawful dissemination of an intimate image.
Proctor-Burch entered an open guilty plea to criminal use of a communication facility and one dissemination count. The Commonwealth withdrew the remaining charges. During the plea colloquy, however, the factual basis expressly stated that he used the phone both to distribute the images and to solicit another man to rape the victim, and Proctor-Burch admitted that conduct.
The Warren County court imposed an aggregate sentence of 24 to 48 months, above the standard guideline range. Proctor-Burch argued that the court improperly punished him for solicitation of rape, an offense that had been withdrawn, and imposed an excessive sentence without adequately considering mitigation.
The Court’s Holding
The Superior Court affirmed in a nonprecedential memorandum. President Judge Emeritus Bender explained that a sentencing court may consider the circumstances surrounding the offenses of conviction and is not confined to the bare statutory elements. The court did not treat the withdrawn count as a separate conviction; it evaluated conduct that Proctor-Burch personally admitted as the factual basis for his guilty plea.
The admission mattered because the communication-facility count encompassed use of the phone to facilitate criminal conduct, including the effort to arrange the assault. Proctor-Burch did not explain why a judge had to ignore that acknowledged purpose merely because the Commonwealth withdrew a separately charged solicitation count. Sentencing information may be broader than facts necessary to establish guilt, so long as it is reliable and the defendant has an opportunity to respond.
The trial court also placed adequate reasons for the upward departure on the record. It considered the presentence report, victim impact, the calculated nature of impersonating the victim, distribution of her images, and the grave danger created by inviting another person to commit an assault. The sentence remained within the statutory maximum and was not manifestly unreasonable.
Key Takeaways
- A sentencing judge may consider reliable conduct surrounding the offenses of conviction, including facts admitted during the plea colloquy.
- Withdrawal of a related charge does not erase conduct that the defendant expressly acknowledged as part of another count.
- The court may not impose punishment for an unproven crime, but it may assess the real circumstances and danger of the admitted offense.
- An above-guideline sentence requires record-based reasons and remains subject to the statutory maximum.
Why It Matters
Proctor-Burch highlights why the factual-basis portion of a Pennsylvania plea colloquy deserves close attention. Admissions made to support a negotiated reduction in charges can still shape the eventual sentence, especially after an open plea with no agreed term. Counsel should identify disputed allegations before the defendant adopts a broad narrative in court.
For prosecutors, the decision supports use of admitted surrounding conduct without converting every dismissed count into an aggravator. The safer approach is to tie the conduct directly to the counts of conviction and to a reliable record. Defense lawyers should distinguish between an admitted circumstance and an allegation that was neither proved nor accepted.
The case is also relevant to technology-facilitated abuse. The harm was not limited to dissemination of private images; impersonation exposed the victim to a potentially real physical attack. Sentencing courts may evaluate that danger when measuring gravity and protection of the public. A clear explanation prevents the sentence from appearing to rest simply on the label of a withdrawn offense.