COMMONWEALTH OF PENNSYLVANIA v. STEVEN ANDREW ZIRKLE
No. 233 WDA 2014
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED DECEMBER 18, 2014
2014 PA Super 279
BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J.*
Appeal from the Judgment of Sentence of December 3, 2013 In the Court of Common Pleas of Crawford County Criminal Division at No(s): CP-20-CR-0000143-2009
COMMONWEALTH OF PENNSYLVANIA v. STEVEN ANDREW ZIRKLE
No. 234 WDA 2014
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED DECEMBER 18, 2014
Appeal from the Judgment of Sentenсe of December 3, 2013 In the Court of Common Pleas of Crawford County Criminal Division at No(s): CP-20-CR-0000147-2009
CONCURRING OPINION BY STRASSBURGER, J.:
I join the Majority‘s holding that Zirkle failed to raise a substantial question that his sentencе is inappropriate under the Sentencing Code. I write separately to express my disquiet about this Court‘s limited ability to
If Zirkle‘s sentences had been ordered to run concurrently, he would have recеived an aggregate sentence of 72 to 144 months of incarceration. Instead, he was given all consecutive sentences, for an aggregate judgment of sentence of 205 to 480 months of incarceration. We presently affirm that judgment of sentence, without reaching the merits of his claim, because, correсtly applying the controlling case law, we hold that Zirkle‘s aggregate sentence is not manifestly excessive and thus he failed to raise a substantial question. Aсcordingly, whether he was ordered to spend a minimum of 6 or 17 years in prison, or any amount in between, Zirkle is unable to have an appellate court even review the trial court‘s exercise of discretion. Under the current state of the law, the trial judge had absolute, unassailable discretion to order a term оf incarceration that differed nearly by a factor of three.
My concern is not with the trial court‘s exercise of discretion in Zirkle‘s case, but with the fact thаt our review of a trial court‘s sentencing discretion in general, and its decision to impose consecutive or concurrent sentences in particular, is treated differently than our review of any other exercise of a trial court‘s discretion.
The abuse-of-discretion standard is applied by this Court in reviewing trial сourts’ exercises of discretion on issues from the continuance of trial, Commonwealth v. Antidormi, 84 A.3d 736, 745 (Pa. Super. 2014); to the withdrawal of a plea, Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa. Super. 2013); to the reception of evidence, Commonwealth v. Akbar, 91 A.3d 227, 235 (Pa. Super. 2014); to the weight of the evidence, Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014). Thus, this Court is quite practiced in determining whether an appellant established that the trial court “ignored or misapplied the law, exеrcised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.” Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (quoting Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)).
There is no sound reason why, in reviewing a triаl court‘s decision to impose consecutive sentences, we do not consider whether the record establishes any of these signs of discretionary аbuse, but instead must focus on the procedural hurdles of
Indeed, not only is the disparate treatment of sentencing discretion unwarranted and unreasonable, it is also at odds with our Constitution. Under Article V, Section 9 of the Pennsylvania Constitutiоn, “an accused has an absolute right to appeal.” Commonwealth v. Franklin, 823 A.2d 906, 908 (Pa. Super. 2003) (quoting Commonwealth v. Wilkerson, 416 A.2d 477, 479 (Pa. 1980)). However, under
Section 9781(b) clearly infringes upon a defendant‘s absolute right to аn appeal. While I acknowledge that an en banc panel of this Court has held that the infringement is a reasonable regulation of the right to an apрeal, McFarlin, 587 A.2d at 736, I agree with the thoughtful analysis of this issue
Pennsylvania‘s procedure of indeterminate sentencing, “necessitates the granting of broad discretion to the trial judge, who must determine, among the sentencing alternatives and the range of permissible penalties, the proper sentence to be imposed.” Commonwealth v. Martin, [], 351 A.2d 650 (1976). The Supreme Court of Pennsylvania has stated that the importance of this discretionary power cannot be overemphasized, and has examined its role and its potential for abuse in Martin, supra. In this regard the [S]upreme [C]ourt has stated:
[M]any commentators argue that it is one of the most important, and most easily abused рowers vested in the trial court today. In United States v. Waters, [citation omitted], Judge Wilkey, speaking for the court, stated:
What happens to an offender after conviction is the least understood, the most fraught with irrational discrepancies, and the most in need of improvement of any phase in our criminal justice system.
It is true that the sentence imposed is normally left undisturbed on appeal because the trial court is in a far better position to weigh the factors involved in such a determination. However, we have held that the court‘s discretion must be exercised within certain procedural limits, including the consideration of sufficient and accurate information.
[Martin,] 351 A.2d at 657 (footnotes omitted.)
Thus, the important power held by those who impose a discretionary sentence is a power which must be exercised within limits. As a check on thоse limits the citizens of this
Commonwealth have been provided with the constitutional provision found in Article V, Section 9, which ensures that a defendant has a right to aрpeal. Section 9781(b) of the Sentencing Code eliminates that right, and instead gives the reviewing court the power to “grant” or “allow” appeal, in its discretion, when the discretionary aspects of a sentence are challenged. ... The question is not whether trial courts will or will not abuse their discretion. We assume mеmbers of the bench of this Commonwealth will exercise their duty in accordance with the high standards for which they are known, however we must recognize that mistakes do occur and appellate courts exist to remedy such situations. The real issue is the legislative attempt to permit our [C]ourt to exercise our discrеtion to limit review. This discretionary action, which is not subject to review, prohibits what our own constitution guarantees—the right to appeal.
* * *
... I do not agree that [] any limitation placed on a person‘s right to appeal can withstand analysis under Article V, Section 9. While I agree that a person may waive their right tо appeal by [his or her] own action, I reject the concept that the right may be eliminated by statute. Instead I agree with our distinguished colleague, Judge Zoran Popovich, who stated in his concurring opinion in Chilcote, “§ 9781(b) violates the absolute right of a defendant to appeal his sentence.” [Chilcote, 578 A.2d at 441].
McFarlin, 587 A.2d at 738-39 (Del Sole, J., dissenting).
Accordingly, I am of the оpinion that every criminal defendant, who preserves the issue for appeal, has the constitutional right to have this Court decide the merits of a claim that the sentencing court abused its discretion in imposing consecutive rather than concurrent sentences.
* Retired Senior Judge assigned to the Superior Court.