Commonwealth v. Dodge

957 A.2d 1198, 2008 Pa. Super. 174, 2008 Pa. Super. LEXIS 2321, 2008 WL 2942130

• Court: Superior Court of Pennsylvania
• Decided: August 1, 2008
• Docket: 543 MDA 2002
• Status: Published

Opinions

OPINION BY

LALLY-GREEN, J.:

¶ 1 Appellant, Timothy Dodge, appeals from the trial court’s February 19, 2002 judgment of sentence. We vacate and remand.

¶ 2 This appeal is before us on remand from our Supreme Court. In our prior opinion, we recited the relevant facts and procedural history:

The Court of Common Pleas of Bradford County convicted Appellant on 37 counts of receiving stolen property, two counts of burglary, criminal trespass, possession of a small amount of marijuana, possession of drug paraphernalia, and unauthorized use of a motor vehicle.

On December 14, 1999, Pennsylvania State Trooper Russell Jenkins went to interview Appellant, at his home, in regards to an automobile accident. Trooper Jenkins detected a strong odor of marijuana on Appellant, and when Appellant refused to allow Jenkins to enter his home, Jenkins immediately obtained a search warrant for the residence and for Appellant’s automobile. During the searches, the police discovered large amounts of stolen property in Appellant’s residence and automobile. Appellant, who fled the jurisdiction, was ultimately arrested in Lancaster County, Pennsylvania in February 2000. At the time, Appellant was driving a stolen vehicle.

Criminal complaints were filed against Appellant in 2000 and ultimately consolidated for trial. Appellant’s jury trial commenced on October 8, 2001. On October 19, 2001, Appellant was found guilty of the aforementioned charges. On February 25, 2002, the trial court sentenced Appellant to an aggregate sentence of 58/6 to 124 years. On March 1, 2002, Appellant filed a post-sentence motion which was denied on March 8, 2002.

Commonwealth v. Dodge, 859 A.2d 771 (Pa.Super.2004), appeal denied, 584 Pa. 672, 880 A.2d 1236 (2005), vacated and remanded, 594 Pa. 345, 935 A.2d 1290 (2007).

¶ 3 Appellant received a lengthy aggregate sentence because the trial court chose to impose consecutive, standard range sentences on Appellant’s convictions. The total aggregate sentence for the 37 counts of receiving stolen property was approximately 52/6 to 111 years’ incarceration, comprised of 37 consecutive, standard range, 17 to 36 month sentences. None of the offenses, including burglary, involved violence against a person.

¶ 4 In Dodge, this panel vacated Appellant’s judgment of sentence as “clearly unreasonable” within the meaning of 42 Pa. C.S.A. § 9781(c)(2) and remanded for re-sentencing. We relied in part upon Commonwealth v. Walls, 846 A.2d 152 (Pa.Super.2004), vacated and remanded, 592 Pa. 557, 926 A.2d 957 (2007).¹ The Supreme Court, after it vacated Walls, vacated Dodge and remanded this matter to us for reconsideration in light of the Supreme Court’s opinion in Walls.2 We note that the trial court’s original sentence has effectively remained intact throughout the appellate process. The trial court has not re-sentenced Appellant.

¶ 5 On remand from the Supreme Court, Appellant once again argues that the trial court abused its discretion in imposing an excessive sentence. We will analyze Appellant’s argument in light of the Supreme Court’s analysis in Walls. We begin with the definition of abuse of discretion:

Our Court has stated that the proper standard of review when considering whether to affirm the sentencing court’s determination is an abuse of discretion. [A]n abuse of discretion is more than a mere error of judgment; thus, a sentencing court will not have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. In more expansive terms, our Court recently offered: An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.

Walls, 926 A.2d at 961 (internal citations and quotation marks omitted).

¶ 6 The sentencing court enjoys broad discretion in part because it has the opportunity to make in-person observations of the defendant. Id. at 962. The sentencing guidelines “inform” the trial court’s sentencing decision rather than “cabin” it. Id. see also Commonwealth v. Wilson, 2008 PA Super 64, at ¶ 5, 946 A.2d 767. Moreover, the sentencing court must fashion a sentence that is “consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b).

¶ 7 Where the sentencing court imposes a sentence within the guideline range, we must review to determine whether the trial court’s sentence is “clearly unreasonable.” 42 Pa.C.S.A. § 9781(c)(2).³ An “unreasonable” decision from the sentencing court would be one that is “‘irrational’ or ‘not guided by sound judgment.’ ” Walls, 926 A.2d at 963, quoting The Random House Dictionary of the English Language, 2084 (2nd ed. 1987).

¶ 8 The reasonableness inquiry is to be a “fluid” one, based in part on the factors set forth in § 9781(d) of the sentencing code:

(d) Review of record. — In reviewing the record the appellate court shall have regard for:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d); Walls, 926 A.2d at 963; Wilson, 2008 PA Super 64, at ¶¶ 7-8, 946 A.2d 767. In addition, a sentence may be unreasonable if the sentencing court fails to consider the factors set forth in § 9721(b). Walls, 926 A.2d at 964. The Supreme Court anticipated that reversal of a trial court’s decision as “unreasonable” would occur “infrequently.” Id.

¶ 9 The Supreme Court emphasized that the guidelines are advisory and non-binding, and that the sentencing court is not required to impose the “minimum possible confinement” consistent with the guidelines. Id. at 965; Wilson, 2008 PA Super 64, ¶ 12-13, 946 A.2d 767. The Supreme Court rejected any notion that the trial court must sentence within the guidelines unless the circumstances are atypical of other, similar crimes. Id. at 966-967.

¶ 10 In vacating Appellant’s sentence, we did not suggest that the trial court failed to impose the minimum possible confinement consistent with the sentencing guidelines. Also, we did not reason that the circumstances of Appellant’s offenses were typical and thus did not warrant an extraordinarily long sentence. Rather, we reasoned that the Appellant, 42 years old at the time of sentencing, would remain in prison under the minimum term until age 1001/2. Dodge, 859 A.2d at 779. The minimum sentence for the receiving stolen property counts would, by itself, keep Appellant in prison until age 94. Id. Furthermore, much of the stolen property at issue was costume jewelry.⁴

¶ 11 We addressed the trial court’s reasoning as follows:

First, the judge appears to have had a fixed purpose of keeping Appellant in jail for his life. [... ] Second, while the trial court addressed the impact of the crimes on the victims and the community, the court does not, on the record, engage in a meaningful analysis of the gravity of the offenses. Here, the court imposed a minimum sentence of 52 years for 37 counts of receiving personal property, all property crimes, many of which involved property of little monetary value. These were not crimes against the person, and the two burglary convictions involved no violence involving a person. Third, while the trial court did address the recidivism of Appellant, it did not address the rehabilitative needs of Appellant. The record further fails to reflect whether this sentence was appropriate as a function of the particular circumstances of the offenses involved. We are thus constrained to conclude that the sentence was clearly unreasonable.

Id. at 781 (internal citations and quotation marks omitted).

¶ 12 We acknowledge that the sentencing court took account of the guidelines and the factors set forth in § 9721(b). We also acknowledge that the sentencing court had ample opportunity to observe Appellant, and the court had the benefit of a pre-sentence investigation report. The sentencing court noted that Appellant has been essentially a career criminal despite prior attempts at rehabilitation. Also, the court noted Appellant’s lack of regard for the victims and for his family members, from whom he sought aid in evading the police. The sentencing court concluded that long-term incarceration was appropriate.

¶ 13 We do not quibble with the sentencing court’s conclusion that Appellant’s multiple offenses and long criminal history-warrant a lengthy period of incarceration. Nonetheless, the court did not acknowledge that its sentence essentially guarantees life imprisonment for Appellant. Likewise, the court did not acknowledge that the life sentence is comprised largely of consecutive sentences for receiving stolen costume jewelry. We acknowledge that many of the stolen items, though of little monetary value, were of significant sentimental value to the victims. The sentimental value of these items is an appropriate consideration in imposing a sentence. Nonetheless, we conclude that, based on the record before us, the trial court abused its discretion in imposing a life sentence for non-violent offenses with limited financial impact.

¶ 14 Thus, we again conclude that the sentencing court’s exercise of discretion in imposing a life sentence was irrational, not guided by sound judgment, and therefore clearly unreasonable within the meaning of § 9781(c)(2). See Walls, 926 A.2d at 963. In reaching this conclusion, we do not disregard or overturn the sentencing court’s findings of fact, per our Supreme Court’s admonition in Walls. Rather, we reach a legal conclusion that, based on the facts before us, an aggregate sentence of 58/6 to 124 years’ incarceration is clearly unreasonable -within the meaning of § 9781(c)(2). Accordingly, we vacate the judgment of sentence and remand for re-sentencing in accordance with this memorandum and our Supreme Court’s opinion in Walls.5

¶ 15 Judgment of sentence vacated. Case remanded for re-sentencing. Jurisdiction relinquished.

¶ 16 Judge STEVENS files a Dissenting Opinion.

1 . We also cited Commonwealth v. Caraballo, 848 A.2d 1018 (Pa.Super.2004), vacated and remanded, 593 Pa. 658, 933 A.2d 650 (2007), another case the Supreme Court has remanded for reconsideration in light of Walls.

2 . In Dodge, 859 A.2d at 775-776, we concluded that Appellant properly preserved his challenge to the discretionary aspects of his sentence and raised a substantial question. Id. at 775-776. Nothing in the Supreme Court’s Walls opinion undermines those conclusions, and we will not revisit them here.

3 . We recognize that the sentence at issue in Walls was outside the guideline range and therefore subject to the "unreasonable” standard of § 9781(c)(3) rather than the "clearly unreasonable” standard of § 9781(c)(2). The Walls Court's method of applying the "unreasonable” standard is, nonetheless, highly instructive in the instant matter. See also Commonwealth v. Moore, 420 Pa.Super. 484, 617 A.2d 8, 12 (1992).

4 . We noted the following in Dodge:

The record reflects that the stolen property ... included medals, tools, guns, real and costume jewelry, among other items. Indeed, the Commonwealth produced as a witness a jeweler who testified that 90 [percent] of the jewelry he reviewed was costume jewelry with a value of less than $20.00 per item.

Dodge, 859 A.2d at 779 n. 10. We agree with the dissent that trafficking in illegal firearms is a serious matter. However, trafficking is not at issue in this case. The record makes clear that the vast majority of the stolen items at issue were not guns, but small personal items not associated with violent crime. The record reflects that three shotguns — two of them more than 50 years old — and one pellet gun were among the stolen property at issue. N.T., 10/11/01, at 50; N.T., 10/15/01, at 127-128; N.T., 10/16/08, at 59-60, 62; N.T., 10/18/01, at 80-81.

5 . In Dodge, Appellant argued that he did not receive the results of a court-ordered psychiatric evaluation in time to prepare for sentencing. We directed that, on remand, Appellant be provided any report in sufficient time to prepare for the new sentencing hearing, per Pa.R.Crim.P. 703. Dodge, 859 A.2d at 774-775. Our Supreme Court's opinion in Walls does not undermine that portion of the Dodge opinion. Therefore, that directive remains in effect.