Com. v. Caldwell, R.
189 WDA 2017
| Pa. Super. Ct. | Oct 19, 2017Background
- Robert David Caldwell II pled nolo contendere to two counts of possession of child pornography, one count of display of obscene and other sexual materials, and one count of criminal use of a communication facility; sentencing occurred December 22, 2016.
- Dr. Allen Pass, a psychotherapist who treated Caldwell, testified about treatment, post‑treatment supervision (including reliance on probation/parole officers and inter‑jurisdictional compacts), and risk factors for relapse.
- The court questioned Dr. Pass about Florida supervision because Caldwell had moved to Florida during the case and about Caldwell’s potential employment at his father’s frozen yogurt business, expressing concern that such employment might expose him to children.
- The court sentenced Caldwell to consecutive and concurrent prison terms (1–7 years on one possession count; concurrent 1–7 on the communications count; consecutive 1–5 on the display count) and denied a post‑sentence reconsideration motion.
- On appeal Caldwell argued the sentencing court abused its discretion by considering impermissible factors: (1) the adequacy of supervision/training in the supervising jurisdiction, (2) Caldwell’s proposed post‑release employment, and (3) treating him differently because he resided outside Pennsylvania.
- The Superior Court found Caldwell waived the discretionary‑sentencing challenge by not raising these specific grounds below, and alternatively held the court did not rely on impermissible factors in any event.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sentencing court relied on impermissible factors (supervision/training of probation/parole) | Caldwell: Court considered inadequacy of supervision and training, which is impermissible and places impossible burden on defendant to prove adequate supervision | Commonwealth/Court: Court’s questioning was to understand treatment continuity and how violations would be handled; not used to increase sentence | Waived for failure to preserve; alternatively, no abuse — court only educated itself and did not rely on supervision level |
| Whether court improperly considered proposed employment (working at frozen yogurt shop attracting children) | Caldwell: Court impermissibly considered employment context; every job exposes people to children so irrelevant | Commonwealth/Court: Employment was considered only as it related to fluid risk factors and need for continuing treatment, not employability | Waived; alternatively, court did not rely on employment as an improper sentencing factor |
| Whether residence outside Pennsylvania affected sentencing | Caldwell: Court treated him differently due to Florida residency and uncertainty about supervision there | Commonwealth/Court: Court only inquired about interstate supervision mechanisms to assess treatment continuity | Waived; alternatively, no abuse — residency not a factor in sentence |
| Procedural preservation for discretionary aspects of sentencing | Caldwell: Raised claim on appeal | Commonwealth/Court: Claim was not raised in post‑sentence motion or at sentencing, so sentencing court lost opportunity to reconsider | Claim waived for failure to preserve; failure to include Rule 2119(f) statement not fatal here because brief addressed issues and Commonwealth did not object |
Key Cases Cited
- Commonwealth v. Allen, 24 A.3d 1058 (Pa. Super. 2011) (discretionary aspects of sentencing review prerequisites)
- Commonwealth v. Austin, 66 A.3d 798 (Pa. Super. 2013) (requirements for challenging discretionary aspects of sentencing)
- Commonwealth v. Malovich, 903 A.2d 1247 (Pa. Super. 2006) (preservation and review standards for sentencing claims)
- Commonwealth v. Mann, 820 A.2d 788 (Pa. Super. 2003) (need to present issues to sentencing judge to allow reconsideration)
- Commonwealth v. Bullock, 948 A.2d 818 (Pa. Super. 2008) (waiver where issue not raised at sentencing or by motion)
- Commonwealth v. Crump, 995 A.2d 1280 (Pa. Super. 2010) (standard: sentencing reviewed for abuse of discretion)
- Commonwealth v. Smithton, 631 A.2d 1053 (Pa. Super. 1993) (discussion of impermissible sentencing factors and when reliance requires vacatur)
- Commonwealth v. Bethea, 379 A.2d 102 (Pa. 1977) (examples of impermissible factors in sentencing)
- Commonwealth v. Calvert, 344 A.2d 797 (Pa. Super. 1975) (prior constitutionally infirm convictions as impermissible factor)
- Commonwealth v. Berrigan, 535 A.2d 91 (Pa. Super. 1987) (impermissible reliance on defendant's ideology)
- Commonwealth v. Penrod, 578 A.2d 486 (Pa. Super. 1990) (presumption trial courts can disregard improper evidence unless prejudicial)
- Commonwealth v. Dugan, 483 A.2d 965 (Pa. Super. 1984) (status as naturalized citizen as impermissible factor)
- Commonwealth v. Brougher, 978 A.2d 373 (Pa. Super. 2009) (Rule 2119(f) technical defects may be excused where Commonwealth does not object)