Commonwealth v. Dodge

DISSENTING OPINION BY

STEVENS, J.:

¶ 1 I respectfully dissent and would affirm the sentencing court.

¶2 In the case at bar, Appellant was convicted of over forty separate charges, and his criminal activity, which occurred over many months, encompassed two states and several counties within Pennsylvania. Despite this, the Majority seeks to remand this matter for a more “reasonable” sentence, finding that the sentencing court did not engage in “a meaningful analysis of the gravity of the offenses.” (Maj. p. 781). I disagree.

¶ 3 The sweeping policy decision of the Majority will hamper the ability of our trial judges to exercise their discretion in sentencing. In short, the Majority is taking away the discretion of sentencing judges to impose consecutive sentences in the standard range merely because the crime involves property offenses.

¶4 Relying on a plurality opinion in Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002), the Majority holds that consecutive sentences for property crimes, although each within the standard range, are, as a matter of law “excessive” because the crimes are not violent. Yet, Mouzon itself does not make any such declaration, and merely holds that a claim that a sentence that is within the statutory limit can raise a substantial question as to whether the sentence is excessive. Mouzon, 571 Pa. at 435-36, 812 A.2d at 627-28.

¶ 5 The plurality in Mouzon did not find that Mr. Mouzon had raised a substantial question as to the excessiveness of his sentence, or that his sentence was excessive, but only held that this Court could *785not adopt a per se rule that such claim could never raise a substantial question. Id. There is simply nothing in Mouzon that leads to the sweeping change in our law announced by the Majority and the Majority can cite to no law, or even to our Constitution, which would justify this change. It is for the legislature, not the courts, to set the range of sentences for crimes, and it is for the sentencing judge, not the appellate court, to make, within the bounds of the law, the decision as to what sentence the criminal shall receive. The bounds of the law were not broken in the within case. There is a valid conviction for each and every sentence ordered by the sentencing judge in the instant matter.

¶ 6 It is not the role of the appellate court to engage in fact-finding, in large part, because we are not in a position to make assessments of credibility. Yet, the Majority here, as in Commonwealth v. Walls, 846 A.2d 152 (2004),15 and Commonwealth v. Caraballo, 848 A.2d 1018 (2004),16 substitutes its own findings of fact for those facts found by the sentencing judge, determines which of the factors enumerated in 42 Pa.C.S.A. § 9721(b) should be accorded the most weight, and offers personal viewpoints about the appropriate lengths of sentence for certain crimes.

¶ 7 The Majority implies that the sentencing judge was biased against Appellant but points to nothing in the record to justify that conclusion. (Maj. p. 781). The trial judge appropriately pointed out in the record that the crimes were serious, that there were victims, that Appellant had an extensive record extending back over twenty-six years, that Appellant had not proved amenable to rehabilitation, that the charges against him included two charges relating to his escape, that he had involved members of his family in his escape, leading to charges being filed against them, and that he did not show remorse.

¶ 8 Clearly, appropriate, albeit negative, comments by the sentencing judge about the defendant’s crimes do not by themselves rise to bias. Otherwise, trial judges could never explain their reason for the sentence, thus risking reversal for not putting on the record the reasons for the sentence. See 42 Pa.C.S.A. § 9721(b).

¶ 9 The Majority makes much of the fact that Appellant was convicted of non-violent offenses17 and that the property involved had little monetary value. However, the Majority fails to acknowledge the sentencing court’s observation that “victim after victim took the stand and broke down because of the sentimental value of many of these things that were taken.” N.T. 2/19/02 at 28-34. Thus, that lack of monetary value does not mean that the victims suffered no harm. In the instant case the sentencing judge found Appellant to be a career criminal and fashioned a sentence for each particular conviction, a matter within the discretion of the sentencing judge.18

*786¶ 10 The Majority denigrates the seriousness of property offenses and ignores the fact that Appellant received a lengthy sentence not because he committed property offenses, but because he made a career of committing property offenses and showed himself to not be amenable to rehabilitation. In upholding the constitutionality of life sentences for repeat offenders, the United States Supreme Court noted “it is in the interest ... in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.” Rummel v. Estelle, 445 U.S. 263, 276, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). More recently, the United States Supreme Court upheld the life sentence given to Gary Ewing, whose “third strike” came after he stole three golf clubs. Ewing v. California, 538 U.S. 11, 17-18, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003).19 Mr. Ewing was a career criminal with a record of property and drug offenses that is strikingly similar to Appellant’s. Id. When discussing the application of the “three strikes” law to a nonviolent, property offender, Justice O’Con-nor noted:

California’s justification is no pretext. Recidivism is a serious public concern in California and throughout the Nation. According to a recent report, approximately 67 percent of former inmates released from state prisons were charges with at least one “serious” new crime within three years of their release. See U.S. Dept, of Justice, Bureau of Justice Statistics, P. Langan & D. Levin, Special Report: Recidivism of Prisoners Released in 1994, P. 1 (June 2002). In particular, released property offenders like Ewing had higher recidivism rates than those released after committing violent, drug, or public-order offenses. Id., at 8. Approximately 73 percent of the property offenders released in 1994 were arrested again within three years compared to approximately 61 percent of the violent offenders, 62 percent of the public-order offenders, and 66 percent of the drug offenders. Ibid.

Ewing, 538 U.S. at 26, 123 S.Ct. 1179.

¶ 11 Thus, the Majority’s sweeping conclusion that “a total sentence that amounts to a life sentence is ‘clearly unreasonable,’ ”20 ignores the record that: 1) Appellant is a career criminal; 2) there is a valid conviction for each crime; 3) there are victims to the crimes; 4) the sentencing court gave a reason for each and every separate sentence; and 5) each of the sentences is within the standard range. In effect, the Majority opinion will require sentencing judges to offer discounts on sentencing for nonviolent crimes, a policy decision better left to the duly elected members of the legislature.

*787¶ 12 In concluding as a matter of law that standard range sentences in a consecutive fashion are “clearly unreasonable”, the Majority severely hampers our sentencing judges in Pennsylvania. Moreover, the Majority offers no guidance to the sentencing judge as to how many years, in the instant case, the judge can sentence consecutively for each crime without the sentence being “clearly unreasonable”.

¶ 13 Further, this attack on the ability of the trial judge to order that a sentence be served consecutively reflects a significant departure from Pennsylvania law. In a recent decision, Commonwealth v. Boyer, 856 A.2d 149, 153 (Pa.Super.2004), the Honorable Michael T. Joyce, relying on long-standing Pennsylvania law, wrote, “[t]he imposition of consecutive as opposed to concurrent sentences is solely within the discretion of the trial court, and does not in and of itself even rise to the level of a substantial question.” Boyer, 856 A.2d at 153. The Majority provides no legal justification for this departure and provides no guidance for trial judges who wish to impose consecutive sentences.

¶ 14 The “clearly unreasonable” test can become but a reflection of the subjective predilection of an appellate court judge for leniency based merely on the type of crime. Again, such a policy matter on the type of crime is for the legislature to decide, not the courts. And such a decision qn length of incarceration is for the sentencing judge, not the appellate courts.

¶ 15 The Majority also faults the sentencing court for failing to take into account Appellant’s rehabilitive needs and for failing to discuss whether the sentence was appropriate as a function of the particular circumstances of the offenses involved. (Maj. p. 781). In sentencing Appellant, the sentencing court made a specific factual finding that Appellant was not amenable to rehabilitation. N.T. 2/19/02 at 28-34. The sentencing judge supported this position by noting Appellant’s over twenty-year criminal career, his failure to ever hold significant employment, and the failure of repeated prior attempts at rehabilitation. Id.

¶ 16 It is well within the discretion of a sentencing court, who is in a far better position to make such a determination, to conclude, based upon the record, that a particular individual is not amenable to rehabilitation and to decline to waste limited resources on an individual who has no interest leading a law-abiding life-style. Further, the sentencing court certainly discussed why the sentence was appropriate as a function of the particular circumstances of the offenses involved. The sentencing court particularly noted the number of offenses, the geographic range, Appellant’s attempt to escape, and the fact that he involved members of his family in his criminal activities. N.T. N.T. 2/19/02 at 28-34.

¶ 17 In the instant matter, each and every requirement of Commonwealth v. Drumgoole, 341 Pa.Super. 468, 491 A.2d 1352, 1354 (1985), cited in the Majority Opinion at p. 778, was met. In fact, the Majority ignores the impact of its own references to “the defendant’s background... the sentencing court’s opportunity to observe the defendant.. .the pre-sentence investigation report...” Id., all of which were carefully met and considered by the sentencing court.

¶ 18 In summary, the Majority may well have a “gut feeling” the sentence is excessive in this particular case. However, the trial judge has followed the law and exercised appropriate discretion. Our appellate court should not make a sweeping policy decision that consecutive sentences *788in a non-violent set of crimes are per se “clearly unreasonable.” I would affirm.

. In Walls, the defendant was sentenced on three separate charges, two of the sentences were above the aggravated range and one was in the standard range; the sentences were to be served consecutively. Walls, 846 A.2d at 154.

. In Caraballo, the defendant was sentenced above the aggravated range on two charges; the sentences were to be served consecutively. Caraballo, 848 A.2d at 1020.

. While Appellant was not convicted of any crimes of violence, the Majority ignores the fact that among the stolen property received by Appellant were firearms. The traffic in illegal firearms, and the violence caused by those in possession of illegal firearms, is a serious problem in our society. Appellant’s role in that traffic and its facilitation of violent crime should not be minimized.

. I note that neither Walls nor Caraballo is directly on point because, unlike in Walls and Caraballo, Appellant was sentenced in the *786standard range on each offense and the length of his sentence was due to the fact that the sentences were ordered to be served consecutively. See Commonwealth v. Boyer, 856 A.2d 149, 153 (Pa.Super.2004).

. The Majority claims that Ewing is inappo-site because Pennsylvania does not have a three strikes law. (Maj. p. 779, n. 11). I disagree. Ewing's discussion of the harm caused by offenders such as Appellant is certainly pertinent, as is its holding that a life sentence for a property offender is not constitutionally excessive.

. Indeed, the sentencing judge in the within case said:

Relative to Count II, the sentence imposed was not excessive considering the number of offenses for which the Defendant was sentenced. In fact, the sentence was within the standard range of the sentencing guidelines.”

March 5, 2002 Order, p. 2 as quoted in the Majority Opinion p. 779.