*1 courts, repeated multiple but also it in instance, Pennsylvania,
motions the same court. For COMMONWEALTH of jurisdictional Appellee Father’s while issue was pending prior panel before the of this Court, Father raised the same issue in his CALDWELL, Appellant. Dominic
application prior for remand before the (First panel at least twice Motion and Superior Court of Pennsylvania. Motion) Second before the trial court. appealed Father When the Second Mo- Argued March 2015. tion, prior panel of this Court had not May Filed yet addressing rendered its decision jurisdictional differently, issue. Put
Father filed this appeal, already appeal pending
another in this Court issue, ie.,
concerning the same lack of
subject jurisdiction. matter prior panel
After the of this is- Court jurisdic-
sued its decision addressing the issue,
tional Father continued appeal this 1925(b)
by filing raising a Rule statement again
once before the trial court the re- jurisdictional
solved Additionally, issue.
he filed a Petition for Appeal Allowance of Supreme
in the challenge Court decision,
prior panel’s raising the same currently
issues that are before us. Given prior
the fact that the panel of this Court jurisdictional
resolved Father’s issue and Supreme
our ensuing ap- Court denied his
peal, appeal we conclude the instant
wholly frivolous. Accordingly, we deem it
appropriate to award Mother counsel fees
to deter Father from filing ap- frivolous
peals in the future. We thus remand this
matter to the trial court for calculation of
reasonable counsel fees.
Order affirmed. Case remanded. Ju- relinquished.
risdiction
Judge joins opinion. MUNDY
Justice FITZGERALD concurs in the
result. *3 Marryshow, Philadelphia, P.
Michael appellant. *4 Martin, At-
Ashley District N. Assistant Commonwealth, torney, Philadelphia, for appellee. DONOHUE, BOWES,
BEFORE: OLSON, SHOGAN, LAZARUS, MUNDY, WECHT, JENKINS, STABILE, JJ. and JENKINS, BY OPINION J.: (“Appellant”) appeals Caldwell Dominic judgment of sentence entered from Philadelphia County of Common Court following aggra- his Pleas convictions assault, robbery, by theft unlawful vated taking, possession an instrument (“PIC”), an- recklessly endangering crime (“REAP”), to person firearms not be other license, carrying fire- carried without streets, not to public persons arms on and firearms.1 We affirm. possess procedural facts and histo- The relevant July are ry appeal of this as follows. On 2010, approximately at 4:15 in the af- Reese, ternoon, friend, Appellant and his request- apartment came to Sean Williams’ N.T., 8/28/12, car. at a ride in his ing Appellant’s family lived across Williams, from and Williams street two given Appellant one or previously Williams, car. Id. who rides in his at 20. 3921(a), 3701(a)(1), 2702(a), tively. §§ 1. 18 Pa.C.S. 2705, 6106, 6108, 907(a), respec- Appellant
was home with his wife and three children after right exercised his to allo- time, went into a different room of cution, the court Appellant sentenced to 9 /¿-18 apartment speak to his wife about years’ incarceration for aggravated give Appellant whether he could a ride. assault, years’ incarceration for rob /&-18 Id. at 19. When Williams returned to the bery, years’ incarceration for carry 1/-7 room, Reese fled Appellant apart- ing license, a firearm without a 21/-5 $2,000.00 ment with from Williams’ wife’s years’ PIC, incarceration for 1-2 years’ N.T., 8/27/12, purse.2 at 70. Williams REAP, incarceration for years’ and 5-10 Appellant chased and Reese onto the persons incarceration for not to possess street that full of was adults and children firearms.3 imposed The court the sen fired two shots toward tences consecutively, which resulted N.T., 8/27/12, Neighbor Williams. at 70. aggregate sentence of 31-62 years’ incar Floyd, standing Gail who was outside con- ceration. brother, versing with her heard the shots Appellant timely post-sentence filed mo- ear, neck, and felt debris hit her and arms. tions supplemental post-sentence mo- N.T., 8/29/12, at 8. After she realized she tions on November and November bleeding, Floyd police. called the 2012, respectively. 21, 2013, On March all at 8-9. Appellant’s post-sentence motions were responded, Police to the scene and ob- denied operation of law pursuant *5 tained a from statement Williams that 720(b)(3). 17, 2013, Pa.R.C.P. On April prompted them to search Appellant. for Appellant timely a filed notice of appeal. N.T., 8/27/12, 45, 52, 5, at 72. April On Both Appellant and the trial court com- 2011, police Appellant apprehended when plied with Pa.R.A.P. 1925.4 passenger they
he was a vehicle that Appellant following raises the issues for N.T., stopped for unrelated reasons. our review: 8/29/12, at 29-38. DID THE COURT ERR IN SEN- 4, 2012, September jury On convicted TENCING APPELLANT TO AN EX- assault, Appellant aggravated robbery, of CESSIVE SENTENCE OF 31 TO 62 PIC, REAP, taking, theft unlawful fire YEARSf] INCARCERATION license, arms not to be carried without a THE WHERE COURT FAILED TO street, carrying public and firearms on a CONSIDER REHABILITA- [THE acquitted Appellant conspiracy of TIVE] NEEDS OF APPELLANT? simple assault. day, That same the court Appellant persons convicted not to DID THE TRIAL pos COURT ERR IN 14, 2012, sess firearms. On November FAILING TO GRANT A MISTRIAL 11, 2013, large quantity 2. had a Williams of cash in his 4. Appel- On June the court ordered apartment personal injury from a settlement. lant to file a concise statement of errors com- N.T., 8/28/12, kept 15. His wife some plained appeal pursuant of on to Pa.R.A.P. money purse of the in her that was on the 1925(b). Appellant requested After an exten- Appellant couch when and Reese came to time, Appellant sion of the court ordered apartment. Williams’ Id. at 24. Detectives days a concise statement within 21 file its Appellant’s fingerprints money found on July Appellant timely 2013 order. com- $2,000.00 wrapper missing for plied August on N.T., 8/30/12, apartment. Williams’ at 31. charge merged sentencing pur- 3. The theft for poses, imposed pen- and the court no further alty carrying public for firearms on a street. upon appeal relied for allowance of reasons THE PROSECUTOR USED
WHERE discretionary aspects respect DEFENDANT with OF ANALOGY [AN] 2119(f). Pa.R.A.P. pursuant THE his sentence A AT JU- GUN [POINTING] Appellant’s Brief at 8. now must See We RORS? Appellant presents whether determine Brief at 3. Appellant’s ap- question substantial that the sentence issue, Appellant challenges In his first appropriate from is not under the pealed of his discretionary aspects sentence. Sentencing Code. consid- argues the court failed to fashioning upon needs er his rehabilitative con “The determination what only considered safe- his sentence must be question stitutes a substantial Further, Appellant con- ty public. of the case-by-case on a basis.” Com evaluated that, anyone, he did not kill although tends Prisk, 13 A.3d monwealth kill him as if he did the court sentenced (Pa.Super.2011). Further: Appellant concludes someone. only question A substantial exists re- imposition consecutive of his sentences argu- appellant advances colorable excessive, unduly aggre- harsh sulted an judge’s actions sentencing ment that the appropriate gate sentence that was (1) spe- were either: inconsistent with a disagree. the crimes he committed. We Code; provision Sentencing cific of the discretionary (2) Challenges to the contrary to the fundamental sentencing peti do not entitle a aspects norms which underlie right. to review as of Common process. tioner Allen, 24 A.3d wealth v. (internal omitted). citations Before this Court can address per.2011). appellant making “An an excessive discretionary challenge, appel such a question ness claim raises a substantial comply following with the re lant must *6 man sufficiently articulates the quirements: in either a ner which the sentence violates appellant challenging An the discretion- sentencing of the scheme specific provision invoke ary aspects of his sentence must Sentencing in or a set forth the Code jurisdiction by satisfying a this Court’s underlying norm particular fundamental (1) appellant whether has four-part test: sentencing process.” the Commonwealth timely appeal, notice of see Pa. filed a (Pa.Su Raven, 1244, 97 A.3d 1253 v. (2) 903; whether the R.A.P. 902 - denied, Pa. -, per.2014), appeal 105 properly preserved sentenc- issue (internal omitted). (2014) citations A.3d 736 in a motion to reconsider and ing or sentence, [720]; modify see Pa.R.Crim.P. sentence, imposing a “When (3) a fatal appellant’s whether brief has court must consider the factors (4) 2119(f); defect, Pa.R.A.P. and wheth- 9721(b), is, § in 42 set out [Pa.C.S.] question a er there is substantial of protection public, gravity of the appro- from is not appealed the sentence impact offense in relation to on victim and Sentencing Code. priate under of the community, and rehabilitative needs And, course, of the court must defendant. sentencing guidelines.” Com Presently, timely a notice consider Appellant filed Fullin, 843, in a v. 892 A.2d 847-48 preserved his issues monwealth appeal of (internal omit Further, (Pa.Super.2006) citations Appel- motion. post-sentence ted). brief includes a concise statement lant’s
769
743,
(2009) (claim
A court’s
of discretion
Pa.
exercise
ing
has been
to
needs
failed
consider his rehabilitative
clarity
consistency.”
Commonwealth
sentence,
its
a
upon fashioning
presents
842
A.3d
Seagraves,
v.
103
Thus,
his
question.
grant
substantial
we
supra).
In
(citing Dodge,
per.2014)
and ad-
petition
appeal
for allowance
Dodge, this
de
v.
Court
Commonwealth
dress
of his
the merits
claim.
an
claim that
the
appellant’s
termined
sentencing
“disregarded rehabilita
court
reviewing challenge to
a
When
and the nature and circumstances of
tion
sentencing, we
discretionary aspects
the
its
handing
offense
down
sentence”
the trial court has
determine whether
question. Dodge,
a substantial
presented
at
Seagraves, supra
abused
discretion.
its
supra at 1273.
842. We observe:
held that “an exces
This Court has also
matter
in the
Sentencing is a
vested
conjunction with
sive sentence claim—in
judge,
the sentencing
sound discretion of
the court failed to consid
an assertion that
and a
will not
on
be disturbed
a
mitigating
er
factors —raises
substantial
appeal
of dis-
absent manifest abuse
Raven,
v.
question.” Commonwealth
context,
cretion.
In this
an abuse of
(Pa.Super.2014), appeal
A.3d
merely by
not shown
discretion is
-
(2014)
denied,
Pa. -,
In whether substantial its judgment partiality, for reasons of exists, not ex- question this Court does will, or ill at a prejudice, bias or arrived amine the merits of whether the sen- manifestly unreasonable decision. Rather, actually tence is we excessive. Raven, supra (quoting at 1253 Common appellant to has for- look whether Shugars, wealth v. 895 A.2d plausible argument warded (Pa.Super.2006)). sentence, the guideline it within is Here, right his Appellant exercised ranges, clearly unreasonable. Con- sentencing hearing, allocution at the before comitantly, question the substantial de- spoke the trial court sentenced him. He require termination does not childhood, about his difficult time to decide the merits of whether the sen- father, growing up pov- without his is clearly tence unreasonable. erty, ill- neighborhood, his his brothers’ (internal supra citations Dodge, at 1270 nesses, previous juvenile his adult and con- omitted). victions, willingness ability his forego Based review of the do better himself and his life. improve on our N.T., 11/14/12, Appel See The court ing precedents, we conclude 24-43. challenge imposition of his then exceed- lant’s sentenced without unduly excessive, ing guidelines.5 imposing consecutive Before sentences *8 nine, parties Appellant's prior gravity agreed 5. The that the offense score for PIC was N.T., four, 11/14/12, gravity score score REAP was a record was a RFEL. the offense for three, gravity carry- parties agreed 3. The also that the offense and the offense score for assault, ing gravity aggravated robbery public scores a five. Id. for firearms on streets was Further, that, parties agreed persons possess and at 3-4. us- firearms were ten, Matrix, gravity ing Deadly Weapon aggra- each a the offense score for fire- Used robbery to be without a was a vated and each warranted 90 arms not carried license assault consecutively, trial you sentences what did is any unthinkable without reasoned: regard you for who could injured. have you’re
I think misguided. And it sounds Look at Floyd, Ms. if she had moved her you background like did have a difficult head, if she had sneezed she could have I my and understand that. But concern killed, paralyzed, been anything could agree and I everything almost happened have to her. But for the said, Commonwealth almost all of her grace of that God no one is dead and arguments.[6] My you concern is that that we’re here in this situation and I basically completely were unconcerned don’t think you fully that get that. I safety people about of the on the don’t think you that take responsibility street, possible in children the area at for that. These your are despite actions 4:30 in day, the afternoon on a summer your childhood and understand what gun play, shooting gun on the street. you’re saying. people grow Lots of up You could have killed someone. But for neighborhood you that grew inup grace of God that no one was killed. they and don’t path take the that you amazing It’s that this is not in the homi took. my That’s concern. You decided cide room. compelling And what’s so go that way. Most of people you for me is that I don’t think really neighborhood you that grew inup do understand shocking that. What’s not commit crimes. fallacy. That’s a you that really intelligent are an young People think that you because person. you’re I believe that live and so neighborhoods articulate certain eloquent you and and that compelling see many in so regards, you but for to do certain things every day you’re that go incarceration, to 102 plus months' burglary, trespass, or minus robbery, criminal parties N.T., 12. Id. at additionally agreed, 11/14/12, 5. The selling drugs. at 18-19. Fur- Matrix, using Sentencing per- ther, the Basic that the Commonwealth stated: possess sons not to firearms warranted 72 to Judge, thing the third that Your Honor incarceration, plus 84 months’ or minus should consider in is the reha- carrying firearms without a license war- bilitative needs of the defendant. From his incarceration, plus ranted 60-72 months’ juvenile record counsel is correct a lot of minus that PIC warranted 21-30 months' juvenile his cases did come to court. How- incarceration, three, plus or minus that REAP ever, goes that also to the fact that he has incarceration, plus warranted 12-18 months’ multiple opportunities where he has three, carrying or minus and that firearms in juvenile justice system been taken into the public warranted 24-36 months’ incarcera- purpose [the sole of which] is to rehabilitate tion, Thus, plus or minus three. Id. at 6. people they so that when become *¿-18 adults Appellant’s years’ sentences of 9 incar- they don’t continue to commit crimes. He's aggravated robbery ceration for assault and been committed to ... at least three differ- aggravated range, were in the his sentence of juvenile ent institutions.... Instead of actu- years’ persons 5-10 incarceration for not to ally taking help following the rec- possess mitigated range, firearms was in the ¡4-7 things they and the years’ and his ommendations sentence of 3 incarceration trying were carrying pro- to teach him to become a for a firearm without a license was mitigated society ductive member of range. Appellant’s below the he decided that sen- going drugs PIC he got tences for and REAP were both to sell and he ar- within range, imposed the standard [CJlearly and the court no rested twice.... he has had an penalty carrying further opportunity firearms on a to be rehabilitated and it has public street. not worked. He has not chosen to take the help system that this has offered him. In- stead, The Commonwealth advised the has chosen to continue a life trial court had been arrested nine crime. times ages between the of 13 and 23 for crimes such Id. at 20-21. *9 criminal, him as if he they’re that trial court sentenced grow to to be a the ing up killed job. just That not when had not going not to have a killed someone he I know that’s not true. does not anyone Appellant true. know. indicates that neighborhood the average in person The his convic appreciate the seriousness of every to work you grew up [goes] that in tions. numerous ser Appellant committed rent, day, they they pay their for pay crimes, aptly ious the court and as trial they right. live The av groceries, their kill observed, only reason did not despite that what erage person does do grace Ap for “the of God.” someone was media, despite you you hear on what $2,000 neighbor’s pellant stole from his make you think and didn’t the decision apartment, neighbor then fired shots at his my You right to live and that’s concern. gun with an on a street at illegal crowded continually right deci [make don’t not 4:30 in the afternoon. was Appellant a long for time you and] sions haven’t these entitled to a volume discount for get you you to it and and still don’t seem numerous and serious crimes. See Mas I’m put people really and worried risk tromarino, supra at 587. public safety you out on the about court ignore Because the trial did not you’re and think rehabili- street I don’t law, judgment for misapply the exercise its you you and like tátive don’t seem want ill partiality, prejudice, bias or reasons to be rehabilitated. will, manifestly not arrive at a and did 11/14/12, N.T., at 43^15. decision, that unreasonable we hold trial specifically The court considered impos- court did not abuse its discretion in that make Appellant the fact continued to ing Appellant’s aggregate sentence. short
poor spent periods decisions after he previ- of time correctional facilities issue, ar Appellant In his next this, crimes. on and the fact ous Based gues grant failing the court erred to Appellant willing still not to take was prosecutor mistrial because used actions, trial responsibility for his improper analogy argument. in her closing did not want Appellant court determined Appellant prosecutor claims the inflamed himself, to rehabilitate he would jurors by depicting them as the victims likely during do a short period so Further, Appellant’s Appellant crimes. Further, incarceration. the court ordered contends the court’s curative instruction Appellant complete program his GED that, inadequate and concludes be said, you job “I like enter would trial, cause he is deprived he was a fair If all of training. you can take that ener- Again, now entitled to a new one. we you gave today speak- in court in gy disagree. ing you apply job and use for a that when has Initially, we note that you you get do will out get out properly waived this issue for failure to day, you energy per- one into apply object during trial. See Commonwealth suading employer I think [prospective] Baumhammers, 599 Pa. obtaining you’ll employment.” be fíne with (2008), denied, cert. 130 S.Ct. U.S. Thus, Id. at 47. trial court considered (2009)(“the 175 L.Ed.2d absence needs Appellant’s rehabilitative sen- before specific objection ren contemporaneous tencing him. waived.”). ders claim appellant’s Further, trial acted brief, imposing Appellant objects its In within discretion consecu his prosecutor’s following remarks: Appellant’s closing tive sentences. contention *10 bank, Honor, made, objection A into a “Your defendant comes he the last three, up juror points comes number objection to the to the following lan- vault, gun juror, says open at the the guage, exact, and I don’t have the but vault, juror opens the number three now effect, counsel, what what the Common- into the vault goes the defendant wealth an suggest did was example that money. the himself and takes all Mean my juror client shot number ten or shot at while, gun away puts the as he’s juror number That’s completely ten. im- stealing money, gun longer the the is no permissible, my is for motion a mistrial.” being displayed juror number three N.T., 8/30/12, Although at 153. Appellant location....[7] is now in a different objected to prosecutor’s analogy the in- bank, goes up Defendant comes into the ten, volving juror object number he did not five, juror points gun to number at prosecutor’s analogies involving ju- says open him holds the gun.on the vault juror ror number three number five. juror five, him number walks with to Thus, Appellant waived has his issue itas vault, gether juror into the number five pertains See jurors appeal. to those on defendant, is now the vault with the 302(a) (“Issues Pa.R.A.P. not raised in the juror gun is at pointed still number lower court are waived and cannot be money five the grabs defendant appeal.”) raised for the first time on hand....[8] the other Further, the court offered a curative Example number three defendant comes instruction Appellant accepted into the only juror bank number ten is applied portions to all of the prosecu- bank, present inside the somehow the tor’s argument. explained The court gets defendant the vault into walks out Appellant’s just “I basically counsel: want with his he’s bag walking and as out of to call attention to the fact that there was juror the bank number ten realizes that objection during an made the Common- just money the defendant stole out wealth’s closing argument they and that vault, goes after the defendant they’re are instructed that not allowed to says yo, stop give money me the picture as the victim pulls back and themselves in the the defendant out the ten, gun juror may case points to number and if because it interfere with their talking N.T., we’re about this case would actu ability impartial.” to be fair and him.[9] ally shoot at 8/30/12, Appellant’s at 156. counsel re- sponded: okay “I’m with that language.” N.T., Appellant’s (quoting Brief at Appellant may challenge not now this 8/30/12, 147-48). trial, During at Appel- 647(B) (“No instruction. See Pa.R.Crim.P. objected point closing lant at this portions charge nor argument, omissions from any explanation. without After charge assigned error, completed may its be un- closing Commonwealth argument, Appellant objection: specific objections clarified his less are made thereto overruled, objection Appellant's 7. omits the Commonwealth's 9. After next from his "That’s a brief: threat of explains: Commonwealth "That is a threat of bodily injury attempt or in serious before bodily person injury serious while the is flee theft, during. robbery.” to commit Bank ing after has the theft been committed.” N.T., 8/30/12, at 147. N.T., 8/30/12, at 148. “Robbery, The stated: 8. Commonwealth next N.T., 8/30/12, during threats the theft.” deliberate”); taint may A trial court remove jury see retires
before *11 through curative instructions. Common 302(a), supra. also Pa.R.A.P. Manley, 985 266-67 wealth v. A.2d Moreover, Appellant proper- even if consider (Pa.Super.2009). “Courts must issue, merits his it no relief. ly preserved find surrounding all circumstances before ing were insuffi that curative instructions of review of a Our standard a mistrial remedy cient and the extreme for mistrial is as court’s denial a motion required.” is Id. at 267. follows: Here, analogy prosecutor the used the for mistrial is within the A motion a to generic robbing a a bank “defendant” court. A of the trial mistrial discretion explain jury the elements of rob- parties the motion is upon of one bery. suggest that prosecutor The did not only an incident is of required himself, robber, Appellant, was the bank its unavoidable effect such a nature that might the suggestion impeded have of a deprive appellant is to the fair and jury’s weigh objec- ability to the evidence trial. It is within the trial impartial tively render a verdict. See true to determine court’s discretion whether Further, Judy, gave the court supra. by inci- prejudiced a defendant was jury a curative instruction to ensure of a dent that is the basis motion for jury picture themselves as did our appeal, mistrial. On standard of victims. the trial court
review whether abused that, contends further that discretion. although to agreed the court’s curative Akbar, 91 A.3d 236 instruction, v. actually Commonwealth the court failed to ref (Pa.Super.2014) (quoting prosecutor’s improper Commonwealth erence the remarks (Pa.Su put jurors proper why to into context Tejeda, v. 834 A.2d may have felt like address victims. When per.2003)). ing jury, the court stated: prosecutor It is well that a has settled objection during There was an made during closing considerable latitude ar- closing argument the defense and I if guments arguments and his are fair just clarify objec- you wanted to to they supported by are the evidence or grounded analogy tion in an that the reasonably use inferences that can be just prosecution made. wanted to tell Further, from derived the evidence. you are not you picture allowed to does prosecutorial misconduct not take yourselves you a victim if do because unless the unavoidable effect of place that, may your tend to it interfere prejudice the comments at issue was ability impartial. to be fair and jurors by in their forming minds N.T., 8/30/12, at 160. the court Although toward hostility fixed bias and the de- specifically prosecutor’s does not state the fendant, ability thus their impeding words, analogy actual it referenced weigh objectively and ren- evidence Thus, placed Ap- init sufficient context. a true verdict. Prosecutorial mis- der pellant’s issues merit no relief. under a conduct is evaluated harmless Judgment of sentence affirmed. error standard. Judy, 978 A.2d Commonwealth v. BOWES, DONOHUE, Judge Judge . (Pa.Super.2009) (quoting SHOGAN, LAZARUS, Common Judge Judge Holley, Judge join wealth and Judge OLSON STABILE Opinion. per.2008)).
Judge Concurring WECHT files ceration. His earliest puts release date Opinion. him on the fifty-four years street at age; his maximum releases him at age eighty-
Judge MUNDY concurs the result. five. CONCURRING OPINION BY Our Assembly General instructs Penn WECHT, J.: sylvania that: Courts “the im The which conduct led to Dominic Cald- posed call should for confinement that is aggravated well’s conviction for assault protection consistent with the pub of the *12 and other crimes was It wanton. was lic, gravity of the offense as it relates dangerous. reckless. It was put It lives impact on the life of the victim and at risk. It punished, deserved to be and on the community, and the rehabilitative punished severity. Did it a merit needs of the defendant.” 42 Pa.C.S.A. sentence that would result in confinement 9721(b). § A trial court abuses its discre decades, for over three and perhaps for tion when it an aggregate orders “ Perhaps life? not. my have doubts. ‘clearly is unreasonable’ within the sentencing But in vested the sound dis- 9781(c).” meaning § of 42 Pa.C.S. Com cretion of the sentencing judge, and is Coulverson, 135, monwealth v. 34 A.3d 139 only assailable for a manifest abuse there- (Pa.Super.2011) (vacating remanding of. Accordingly, with considerable discom- where, alia, for resentencing inter “90- fort, I am constrained to concur. year aggregate maximum potentially con signs 19-year-old majority,
Like the I believe that defendant with mental Cald health problems well to life in question prison raises substantial without even a trial nod to court abused its discretion in fac ordering relevant tors”). 9781(c)(2) § 42 his sentences to run See also Pa.C.S.A. consecutively, with (stating that appellate insufficient court should mitigating consideration of cir vacate a sentence when “the sentencing cumstances. See court Commonwealth v. Ed wards, (Pa.Su 323, sentenced within the sentencing guidelines 71 A.3d 330-31 but the case per.2013). entirely I am not involves circumstances where satisfied that application guidelines the trial court would fashioned a sentence that be unreasonable”). clearly adequately considered Caldwell’s individu alized rehabilitative needs and mitigating We have determined a trial court I am circumstances. concerned that oversteps discretionary its ag bounds trial court’s order is somewhat inconsistent gregating nonviolent offenses into what is internally, rejecting prospects for rehabili See, effectively e.g., a life sentence. Com hand, tation on the one ordering 1198, Dodge, monwealth v. 957 A.2d 1200 job Caldwell obtain his GED and training (Pa.Super.2008) (holding that life sentence on the other. forty receiving proper counts of stolen
At sentencing,
twenty-
ty
excessive);
Caldwell was
see also Commonwealth
years,
three
age.
He was sentenced in v. Dodge, 77 A.3d
1278
aggregate
to a
thirty-one
per.2013) (Wecht, J.,
minimum of
dissenting).1 On an
sixty-two years’
basis,
and a maximum of
incar-
individualized
we have extended this
Supreme
(1983)
1. The
Court
(holding
States has
77 L.Ed.2d
United
that it
Eighth
Eighth
found that a trial court violated the
was a violation of the
Amendment to
Amendment when it ordered a defendant to
sentence defendant to life for a seventh non-
felony
writing
serve a life sentence for nonviolent crimes.
violent
a bad
check for
Helm,
See Solem v.
463 U.S.
103 S.Ct.
$100).
Although
at 1200.
crimes,
ation.
as well.
to violent
consideration
Coulverson,
report,
as well
(reversing
at 139
had the benefit of PSI
See
aggregate sen
to observe
ninety-year
ample opportunity
eighteen-
as
assault,
alia,
for,
rape, sexual
defendant,
inter
the defendant’s
tence
and cited
excessive). As
rehabilitation,
assault as
aggravated
we found
history of
failed
in
explained
we
Coulverson:
“irration-
sentencing decision
the court’s
Id. at
Supreme
“clearly
Court’s
unreasonable.”
accordance with our
al” and
In
v.
trial court’s
citing
pronouncement
Specifically
[Commonwealth
Walls,
A.2d 957
592 Pa.
keeping
purpose
“fixed
(2007)],
acknowledge
the inherent
life,”
we
we es-
jail for his
id.
inquiry
fluidity of the “reasonableness”
emphasis
the court’s excessive
chewed
nuaneed discretion that
well as the
expense
at the
of other
on retribution
sentencing process. See
hallmarks the
considerations,
statutorily mandated
[id,.]
In accordance with our
at 963.
9781(d)(1) (“The na-
e.g.,
[§ ]
Pa.C.S.
[Commonwealth
own decision
the offense
circumstances of
ture and
*13
1198, 1200
Dodge, 957 A.2d
history and characteristics
and the
on re
applied Walls
per.2008)], which
defendant”),
mat-
and remanded the
mand,
recognize that individual
we also
truly
of a
individual-
imposition
ter for
controlling
remains the
sentencing
ized
judge’s
shorn of the trial
ized sentence
sentencing process and
norm of the
agenda.
evident
may
befitting one defendant
a sentence
Coulverson,
“[T]he
court’s focus on the (thankfully
possibility that someone could have been Pennsylvania, COMMONWEALTH of
killed Caldwell’s criminal actions. Per- Appellee haps the job mandate for a GED and training is a or backhanded unstated nod hope rehabilitation, some for Caldwell’s perhaps service, it lip or surplusage. Anthony REID, Appellant.
The on point record this is somewhat Superior Pennsylvania. Court of
opaque. all, Still in faithful precedent, to our Submitted March 2015. am unable to conclude that Caldwell’s sen- Filed June “clearly tence is or that it unreasonable” represents a manifest abuse of discretion. Coulverson,
Compare 147-48; 34 A.3d at
Malovich,
1253; Dodge,
observes, court had the record,
benefit of pre- Caldwell’s arrest investigation, and Caldwell’s allo-
cution fashioning Maj. his sentence.
Opinion at 771-72. The record reflects
that the sentencing only court considered
minimal appropriate amount of the sen-
tencing factors specific to Caldwell and the Notes injury here.” our deci Dodge in do not inform crimes Nonetheless, (“N.T.”), 11/14/2012, at 22. here, the defendant had commit sion as focused, unreasonably, on the the court crimes rather property ted numerous shooting gun on the street. “gun play, against person.” than Id. “crimes But for have killed someone. You could however, guidance, find at 1201. We do was killed.” grace of God no one [] that the trial panel’s recognition in the (“But 43; gráce at see id. at Id. nu- not on a judge imposed sentence dead[.]”). The court that no one is of God statutory fac aneed consideration of the aggregate sentence of then announced an in sections 9721 and tors delineated incarceration, sixty-two years’ thirty-one to purpose keep “a fixed 9781 but with and stated: life.” In ing Appellant jail for his you complete ordering I’m also here, imposed the trial court Dodge, you’re already your program that GED commencing in the standard sentences I in. I think that’s wonderful. enrolled ordered range guidelines of the but job training. If you like to enter would run consecutive to one another them to you energy all that you can take counts, rendering aggregate on 37 use today speaking in court in gave incarcer- years’ to 124 sentence 58 1/2 you job that when for a apply you hand; facts nonetheless, at minimal con- get you get do out and out day, will one sideration is all that is required. See you apply energy into persuading Walls, Moreover, had the perspective employer you’ll I think [sic] explained further itself appro- be fíne with obtaining employment. priate deliberation and discussion on the record, Caldwell’s Id. at 47. sentence would have been per neither excessive se nor an abuse sentencing The court declared Caldwell that, discretion. I conclude cannot incapable of rehabilitation. Id. at 45. It is instance, this court violated difficult to bearing reconcile the sentencing process or abused its dis- thirty-one years’ minimum term of incar- cretion in fashioning Caldwell’s sentence. ceration with an order that Caldwell com- The court’s consideration of the relevant plete job training. his GED and Presum- minimal, factors was as noted above. ably, job training the GED and have some consider the court’s barely efforts ade- rehabilitative purpose. perhaps they Or quate But, law, to affirm. as a matter of just keep are calculated to Caldwell occu- barely adequate adequate enough. pied. doWe not know. The sentencing events, court does not tell us. At all I am Accordingly, I concur. hard-pressed imagine what rehabilita- purpose job tive training may Caldwell’s him upon serve release three decades from minimum, now at a if ever his lifetime.