Commonwealth v. Dodge

DISSENTING OPINION BY

WECHT, J.

Over nine years, in three separate decisions, this Court has reviewed the sentences imposed upon Timothy Dodge (“Appellant”) in the Court of Common Pleas of Bradford County. See Commonwealth v. Dodge, 859 A.2d 771 (Pa.Super.2004) (“Dodge I”), vacated, 594 Pa. 345, 935 A.2d 1290 (2007); Commonwealth v. Dodge, 957 A.2d 1198 (Pa.Super.2008) (“Dodge II”); Commonwealth v. Dodge, 26 A.3d 1204 (Pa.Super.2011) (unpublished memorandum) (“Dodge III”). In each and every instance, this Court determined that the trial court had abused its discretion by imposing consecutive sentences based upon non-violent property crimes to the extent that the sentences amounted to virtual life sentences.

On each remand, the Court of Common Pleas of Bradford County ignored the bases and binding authorities offered by this Court in vacating the sentences. Instead, the trial court opted to reduce Appellant’s sentence incrementally, in the apparent hope that someday this Court would apply its stamp of approval to these sentences. The practical effect of the sentence that we review today differs in no material way from the one that we first rejected nine years ago, and then again five years ago, and yet again two years ago. Nonetheless, today the learned majority implicitly condones the trial court’s defiance of our prior decisions, and applies that heretofore elusive stamp of approval. See Dodge I, 859 A.2d at 779 (“We do not, and indeed cannot, rubber stamp all consecutively-run sentences!)]”).

I respectfully, but adamantly, dissent.

Initially, I agree with the majority that Appellant has presented a substantial question warranting our discretionary review of his sentence. See Maj. Op. at 1273. The majority correctly determines that the consecutive nature of Appellant’s sentence, as it relates in proportion to the nature of the crimes to which Appellant pleaded guilty, raises a substantial question. Id. The consecutive nature of Appellant’s sentence has been at the core of each of our prior decisions, but not only in the context of the substantial question analysis. To be sure, the consecutive nature of Appellant’s sentence has been the sole reason that this Court thrice has held that Appellant’s sentence was a patent abuse of the trial, court’s discretion. Yet, the majority departs in substance from the prior decisions authored by our learned colleagues. A review of those cases is necessary to comprehend fully the majority’s unwarranted deviation from our prior decisions.

In Dodge I, we reviewed Appellant’s fifty-eight and one-half to one hundred and twenty-four year sentence. The sentence, in part, was comprised of thirty-seven consecutive sentences for receiving stolen property. 859 A.2d at 779. At the time that the sentence was imposed, Appellant was forty-two years old. Thus, at his minimum release date, Appellant would have been one hundred and one-half years old. Id. With the utmost clarity, we held that the consecutive nature of the sentence was “clearly unreasonable” and an abuse of the trial court’s discretion. Id. at 781; see 42 Pa.C.S. § 9781(c)(2) (requiring an appellate court to vacate a sentence when “the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable”). In doing so, we noted, inter alia, that the trial court “appears to have a fixed purpose of keeping Appellant in jail for his life.” Id. We further noted that the trial court failed to “engage in a meaningful analysis of the gravity of the offenses,” principally because the receiving stolen property offenses involved property with little to no monetary value, and because the two burglaries did not involve any violence to a person. Id. Any thought that our decision was not predicated upon the consecutive nature of the sentences imposed is quickly disabused upon review of the instructions we assigned the trial court to follow on remand. We specifically directed the trial court “to address, when fashioning the sentence for the [forty] counts of receiving stolen property, whether some, if not many, of these sentences more appropriately should run concurrently] to others.” Id.

The trial court did not get an immediate opportunity to resentence Appellant. Our Supreme Court granted allocatur and, by order, vacated our Dodge I order. The Court remanded the case to this Court with directions to consider the High Court’s decision in Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957 (2007). Commonwealth v. Dodge, 594 Pa. 345, 935 A.2d 1290 (2007) (per curiam).

On remand, in Dodge II, we considered Walls, and the Supreme Court’s clarification of the standard of review in challenges to the discretionary aspects of a sentence, and we again concluded that Appellant’s sentence was an abuse of discretion. We reiterated that the trial court properly had considered the sentencing guidelines, Appellant’s prior history and attempts at rehabilitation, and the impact that Appellant’s crimes had on the victims of his crimes. Dodge II, 957 A.2d at 1201. We further noted that we had no inherent problem with the trial court’s conclusion that Appellant’s excessive criminality warranted a lengthy term of incarceration. Id. at 1202. However, we nonetheless concluded that the consecutive nature of Appellant’s sentence, imposed in large part for receiving stolen property convictions which stemmed from, inter alia, Appellant’s retention of stolen costume jewelry that lacked any significant monetary value, was clearly unreasonable in that it essentially guaranteed life imprisonment for Appellant. Id.

At resentencing, the trial court, having the benefit of our clear explanation of what we determined to be the justification for finding that the trial court abused its discretion, nonetheless sentenced Appellant to an aggregate term of fifty-one years, four months and thirty days to one hundred and twenty-two years’ imprisonment. In effect, the trial court again sentenced Appellant to a life sentence. In other words, the trial court ignored our decisions in Dodge I and Dodge II, and fashioned a materially indistinguishable sentence from that which we found to be clearly unreasonable.

On appeal, in Dodge III, an unpublished decision, we once again held that the trial court abused its discretion. We stated that “we find no meaningful distinction between the trial court’s imposition of a [fifty-one years, four months and thirty days to one hundred and twenty-two years] year life sentence on remand and the [fifty-eight year to one hundred and twenty-four] year life sentence previously found excessive and irrational by this Court in Dodge [II ].” Dodge III, slip op. at 4.

Our prior decisions in this case make one thing perfectly clear: the consecutive nature of Appellant’s sentence, which resulted in virtual life sentences largely for non-violent property crimes (including monetarily worthless costume jewelry), was disproportionate and clearly unreasonable pursuant to 42 Pa.C.S. § 9781(c)(2). No other reading of these cases is sustainable, and the trial court could not reasonably have been confused as to what we found problematic in this case. We repeatedly made clear that the specific problem that we found which constituted an abuse of discretion was the consecutive nature of the receiving stolen property sentences, and not the individual sentence imposed upon each receiving stolen property count. Appellant’s most recent sentence is forty years and seven months to eighty-one years and two months of incarceration. The trial court again sentenced Appellant to consecutive sentences on thirty-seven receiving stolen property counts. The fact that each sentence was in the lower end of the standard range of the sentencing guidelines is of little moment. It is clear to me that, when the trial court resentenced Appellant on the first remand to another virtual life sentence, the trial court disregarded yet again the essence of our rationale for ordering re-sentencing. Now that the court has done the same thing a second time, I must infer that the trial court has no intention of taking our rulings seriously. The sentence that we review today is yet another attempt by the trial court to keep Appellant in prison for life, reflecting the trial court’s obstinate determination to defy the plain, repeated substance of our prior orders.

As disconcerting as that is, I am even more troubled that the majority has now given in. When Appellant reaches his minimum release date, he will be approximately eighty-four years old. Astoundingly, the majority determines that this sentence no longer amounts to a virtual life sentence. See Maj. Op. at 1275-76. The majority draws a distinction between the prior sentence that we vacated, which would have held Appellant in prison until he was ninety-three, and the trial court’s latest attempt to circumvent our prior decisions. Needless to say, the majority provides no medical or scientific evidence to substantiate its exceedingly fine distinction. Common sense dictates the contrary conclusion. While they certainly do their best to deliver services under difficult circumstances, prisons do not have a reputation for prolonging a person’s life. Nonetheless, I cannot discern any principled basis, in common sense or in our case law, for distinguishing between holding a prisoner until that person is eighty-four and until that person reaches the age of ninety-three, particularly in light of the character of the crimes for which Appellant was sentenced. The majority provides nothing of substance to support its contrary conclusion.

Appellant argues, inter alia, that his consecutive sentences continue to amount to a virtual life sentence and that the trial court abused its discretion because the sentence is disproportionate to the nature and circumstances of his offenses. Brief for Appellant at 22-25. We recently addressed the proportionality between a sentence and the convicted offenses in Commonwealth v. Williams, 69 A.3d 735 (Pa.Super.2013). In Williams, we reviewed a twenty-four and two month to forty-eight year and four month sentence, which was imposed after the appellant violated her probation on multiple burglary convictions. The sentence was also ordered to run consecutively to a hew seven to twenty-year sentence imposed on the appellant’s convictions of new criminal charges. Id. at 738-39.

Addressing proportionality, we stated the following:

[42 Pa.C.S. § 9721(b) ] constrains a sentencing court’s discretion in that it requires that any sentence imposed be “consistent with the protection of the public, the gravity of the offense[,] ... and the rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b) (emphasis added). A sentence that disproportionally punishes a defendant in excess of what is necessary to achieve consistency with the section 9721(b) factors violates the express terms of 42 Pa.C.S. § 9721(b), as would a sentence that is disproportionately lenient. Certainly consistency with section 9721(b) factors does not require strict proportionality in sentencing, and the nonquantifiable nature of the factors considered would not permit- such a rule in any event. However, a sentence that is clearly and excessively disproportionate is, by definition, inconsistent with “the protection of the public, the gravity of the offense[,] ... and the rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b).

We agree [with the trial court] that [the appellant’s] recidivism required an escalation of sanctions. The issue is one of proportionality. That principle does not undermine the sound reasoning that escalating penalties are required to deter recidivism, but instead strengthens it by preventing unreasonable interpretations that undermine public confidence in the criminal justice system as a whole. Tolerance of such incongruities on the grounds of appellate deference to trial court discretion undermines our commitment to individualized sentences, and renders the noble penological goal of sentence individualization indistinguishable from arbitrary justice.

Williams, 69 A.3d at 742-43.

The Williams panel of this Court ultimately concluded that, even though the burglaries for which the appellant was sentenced involved a small amount of violence to at least two people, the sentence was disproportionate to the appellant’s crimes, and, therefore, manifestly excessive. Id. at 744.

In the instant case, I would first hold that Appellant’s sentence is “clearly unreasonable” pursuant to 42 Pa.C.S. § 9781(c)(2), as my learned colleagues have done on multiple prior occasions. I also would hold that Appellant’s sentence was disproportionate to his crimes pursuant to 42 Pa.C.S. § 9721(b), as this Court did in Williams. In Williams, the appellant committed seven burglaries, two of which involved at least some violence to people. By contrast, Appellant’s two burglaries did not involve any violence. Indeed, no people were present when the burglaries occurred. The shockingly excessive portion of Appellant’s sentence was imposed on the receiving stolen property counts, which this Court previously has characterized largely as involving property having little to no monetary value. While every situation is different, and while each sentence requires consideration of individual characteristics, I nonetheless find Williams to be particularly persuasive in this case.

As noted frequently above, the trial court appears determined to defy our prior decisions with regard to the consecutive nature of the sentences. Its defiance seems calculated to achieve what the Dodge I and Dodge II panels manifestly concluded to be an improper outcome in this case: the imposition of a sentence that ensures that Appellant, a serial but nonviolent petty thief, remains incarcerated for the rest of his natural life. This being the trial court’s unmistakable goal, I also would hold that Appellant’s sentence was an abuse of discretion because it was the product of “partiality, prejudice, bias or hi will[.]” Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa.Super.1999) (en banc).

The trial court willfully ignored the clear rationale underlying our prior decisions. That court reduced the amount of time imposed upon each individual count, which plainly was not the sentencing problem that we identified in our prior decisions. The trial court failed to alter the consecutive nature of the sentences, which, we made plain, was the ongoing problem. Thus, what resulted is yet another virtual life sentence for multiple non-violent property offenses. The majority now embosses its stamp of approval upon a sentence that differs in no significant way from the ones we have struck down in the past. In doing so, the majority vindicates the trial court’s defiance and intransigence. The majority does so without offering a meaningful distinction, other than its own bald and arbitrary declaration that a minimum release date from prison at eighty-four years old is not akin to a life sentence. I cannot agree. Therefore, I respectfully dissent.