Commonwealth v. MouzonCommonwealth v. Mouzon
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- Before:
- Zappala
Lead Opinion
Traditionally, the trial court is afforded broad discretion in sentencing criminal defendants “because of the perception that the trial court is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it.” Commonwealth v. Ward, 524 Pa. 48, 568 A.2d 1242, 1243 (1990). Under Pennsylvania’s Sentencing Code,
The Sentencing Guidelines enumerate aggravating and mitigating circumstances, assign scores based on a defendant’s criminal record and based on the seriousness of the crime, and specify a range of punishments for each crime.3 “In every case in
Appellate review оf sentences is governed by § 9781 of the Pennsylvania Sentencing Code, which makes clear that there is no absolute right to appellate review of the discretionary aspects of a sentence.5 See
Pursuant to § 9781(f) of the Sentencing Code, “[n]o appeal of the discretionary aspects of the sentence shall be permitted beyond the appellate court that has initial jurisdiction for such appeals.”
Here, Appellant’s sentence was imposed after he was convicted for committing several armed robberies and related offenses in Philadelphia over an eleven-day period in October 1997. The crimes involved three separate incidents where Appellant and several co-conspirators entered two food markets and a restaurant and, at gunpoint, stole money from customers and the establishments’ cash registers. A policе investigation of the crimes led to the arrest of one co-conspirator on November 14, 1997. Later that same day, the police obtained and executed an arrest warrant for Appellant and a search warrant for his residence, which resulted in the recovery of an old .44 magnum revolver from the basement, which witnesses later identified as the one used in the robberies. On November 15, 1997, Appellant gave a statement to the police acknowledging his involvement in one of the robberies and admitting that he had brandished the .44 magnum handgun. Following further police investigation, on December 19, 1997, Appellant gave a second inculpatory statement regarding his involvement in one of the other robberies.
Upon the completion of the police investigation, Appellant was charged with numerous crimes stemming from his involvement in the three robberies. Following a three-day trial, on December 22, 1998, a jury found Appellant guilty of eight counts of robbery, eight counts of possessing an instrument of crime, and seven counts of conspiracy.7 On June 23,1999, the trial court imposed a prison term of ten to twenty years for each of five robbery convictions, ten to twenty years for each of two conspiracy convictions and two and one-half to five years for one possessing an
On appeal to the Superior Court, Appellant alleged that the trial court abused its discretion in sentencing him to the absolute maximum penalty for each offense, arguing that under the circumstances of the case, sentencing him to what amounted to a life sentence was arbitrary, excessive, unreasonable, shocking to the conscience and disproportionate to the crimes committed. Appellant pointed out that he was a twenty-year-old first-time offender with neither an adult or juvenile record, and that he did not discharge a gun or injure anyone during the robberies. According to Appellant, the sheer magnitude of the trial court’s deviation from the Sentencing Guidelines presented a substantial question of excessiveness that warranted the Superior Court’s review.
In a memorandum opinion filed May 23, 2001, the Superior Court concluded that Appellant failed to raise a substantial question warranting appellate review, and therefore, declined to review the merits of his claim. Slip. Op. at 6-8. In so concluding, the Superior Court relied upon cases holding that, under
On appeal here, Appellant essentially argues that the Superior Court violated his right to appeal by concluding that, under
Even before the Guidelines were enacted, this Court recognized that a trial court could abuse its discretion by imposing a sentence that was “manifestly excessive,” even when that sentence was within the statutory limits. For example, we stated that sentencing lies “within the sole discretion of the trial court, and the sentence imposed will not be reviewed by an appellate court, unless it exceeds the statutorily prescribed limits or is so manifestly excessive as to constitute too severe a punishment.” Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78, 81 (1971) (emphasis added); see also Commonwealth v. Garramone, 307 Pa. 507, 161 A. 733, 735 (1932) (applying “manifestly excessive” exception to conclude trial court abused its discretion in imposing death sentence). Similarly, in Commonwealth v. Person, 450 Pa. 1, 297 A.2d 460, 462 (1972), we concluded that when a trial court imposes a sentence that is within the statutory limits, “there is no
In keeping with this standard, when the General Assembly amended the Sentencing Code in 1980 it stated in clear language that “an appellate court shall vacate the sentence and remand the case” where it finds that the trial court:
(2) sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would, be clearly unreasonable; or
(3) sentenced outside the sentencing guidelines and the sentence is unreasonable.
In fact, in applying the statutory provisions of
While it is undoubtedly true that the legislature granted the Superior Court discretion to decide whether it will review a challenge to the discretionary aspects of sentencing,
If an appellant, like Appellant here, complies with all statutory and procedural requirements regarding a challenge to the discretionary aspects of sentencing, and articulates in his Rule 2119(f) statement a substantial question so as to warrant appellate review,
Based on the above, we conclude that the Superior Court erred in finding that Appellant’s excessiveness chаllenge failed to raise a substantial question as a matter of law because his sentence was within the statutory limits.15 Thus, we reverse the order of the Superior Court and remand this case to the Superior Court for proceedings consistent with this opinion.
Justice NEWMAN and Justice SAYLOR concur in the result. Justice CASTILLE files a dissenting opinion. Justice EAKIN files a dissenting opinion in which Justice CASTILLE joins.Notes
. To that end, Pennsylvania’s statutory scheme specifies the grade and degree of each particular crime. See, e.g.,
. In 1978, the General Assembly empowered the Pennsylvania Commission on Sentencing to formulate Sentencing Guidelines, which the General Assembly subsequently adopted. This Court has recognized that the Sentencing Guidelines were promulgated in order to structure the trial court’s exercise of its sentencing power and to address disparate sentencing. See Ward, 568 A.2d at 1243-44; Sessoms, 532 A.2d at 776-77. Legislative history alsо indicates that the Guidelines were enacted “to make criminal sentences more rational and consistent, to eliminate unwarranted disparity in sentencing, and to restrict the unfettered discretion we give to sentencing judges.” Commonwealth v. Gause, 442 Pa.Super. 329, 659 A.2d 1014, 1016 (1995) (quoting Pennsylvania House Journal, 3130 (September 21, 1978)) (emphasis added in cited text).
. Essentially, the Guidelines set forth a recommended standard range (“standard range”) in which any given defendant‘s sentence should fall, based on the gravity of the defendant’s offense and the defendant’s prior record. For each standard range that corresponds to a particular offense committed by a particular defendant, the Guidelines also sets forth an “aggravated range” and a “mitigated range” to guide the court should it believe that a sentence in the standard range would be inappropriate under the circumstances. See
. A sentence outside of the Guidelines is one imposed outside of all the recommended ranges, i.e., either below the mitigated range or above the aggravated range for a particular crime. Of course, a court may not legally impose a sentence that exceeds the statutory limits. See supra, n. 1.
. Under the statute, however, a challenge to the legality of a sentence can be brought as of right. See
. Specifically, subsection (b) provides:
(b) The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initiаl jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.
This Court has exclusive jurisdiction of appeals from final orders of the courts of common pleas in cases where the death penalty is imposed. See
.
. Each sentence imposed was the maximum permitted by law for the crime.
. See also, e.g., Commonwealth v. Nixon, 718 A.2d 311, 315 (Pa.Super.1998) (quoting Commonwealth v. Dungan, 372 Pa.Super. 323, 539 A.2d 817 (1988)); Commonwealth v. Nelson, 446 Pa.Super. 240, 666 A.2d 714, 720 (1995); Commonwealth v. Canfield, 432 Pa.Super. 496, 639 A.2d 46, 48 (1994); Commonwealth v. Breter, 425 Pa.Super. 248, 624 A.2d 661, 662 (1993); Commonwealth v. Jones, 418 Pa.Super. 93, 613 A.2d 587, 593 (1992) (en banc).
Significantly, the Superior Court below ignored a number of conflicting cases in which it has reviewed excessiveness challenges to sentences within the statutory limits just like any other challenge to the discretionary aspects of sentencing. See, e.g., Commonwealth v. Cunningham, 805 A.2d 566, 574-75 (Pa.Super.2002); Commonwealth v. Eby, 784 A.2d 204, 206 (Pa.Super.2001); Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc); Commonwealth v. Davis, 737 A.2d 792, 798 (Pa.Super. 1999); Commonwealth v. Smart, 387 Pa.Super. 518, 564 A.2d 512, 514 (1989); Commonwealth v. Quier, 366 Pa.Super. 275, 531 A.2d 8, 11-12 (1987); Commonwealth v. Simpson, 353 Pa.Super. 474, 510 A.2d 760, 761-62 (1986).
. The Commonwealth contends that Appellant waived this claim because he did not raise it in his
First, although ordinarily “[ijssues not raised before the lower court are waived and cannot be raised for the first time on appeal,”
Moreover, to the extent the Commonwealth now argues that Appellant filed his 1925(b) statement in an untimely manner, the Commonwealth only asserted this issue after this Court granted allocatur. The Commonwealth did not raise in the lower courts a claim that Appellant failed to comply with
. In its entirety, subsection (c) states:
(c) The appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds:
(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the sentence imposed by the sentencing court.
. Although each state employs its own distinctive sentencing scheme, and this Court is not bound by decisions from the courts of our sister states, we note that other jurisdictions have provided for appellate review of excessiveness claims, even where the challenged sentence is within the range permitted by law. See, e.g., State v. Johnson, 136 Idaho 701, 39 P.3d 641, 645 (2001) (an appellant challenging a sentence as excessively harsh can establish a clear abuse of discretion if he shows the sentence is unreasonable upon the facts of the case; the appellate court conducts an independent review of the record and focuses on the nature of the offense and the character of the offender); State v. Wisehart, 569 A.2d 434, 436-37 (R.I.1990) (although sentencing is a matter of discretion for the trial judge, appellate court may set aside clearly excessive sentence within the statutory limits); State v. Pillot, 115 N.J. 558, 560 A.2d 634, 636-38 (1989) (even if a sentence falls “within the discretionary parameters of” the sentencing code, an appellant can sustain an excessiveness claim by demonstrating an abuse of discretion); see also State v. Cunningham, 236 Kan. 842, 695 P.2d 1280, 1284 (1985); Johnson v. State, 447 N.E.2d 1072, 1075-76 (Ind. 1983). But see State v. Slade, 291 N.C. 275, 229 S.E.2d 921, 927 (1976) (where sentence is within statutory limits, the punishment actually imposed by the trial court is a discretionary matter); Awkard v. Commonwealth, 21 Va.App. 40, 461 S.E.2d 419, 420 (1995) (same).
. If this Court were to adopt the per se rule applied by the Superior Court below, it would have the far-reaching effect of denying all future challengers like Appellant the opportunity to establish that the trial court abused its discretion because any such claim would automatically be dismissed, without review on the merits, for failing to raise a substantial issue as a matter of law. In fact, this per se rule would preclude an appellate court from even considering whether an appellant’s 2119(f) statement raised a substantial question for appellate review, and would simply require dismissal as a matter of course.
Moreover, in arguing that the Superior Court properly applied this per se rule, the Commonwealth attempts to have it both ways. The Commonwealth wants appellate review when it believes the trial court has imposed a sentence that is less than what the statutory Guidelines recommend, but wants this Court to prohibit appellate review of a defendant’s claim that his sentence, though within the statutory limits, is more that what the Guidelines recommend. See, e.g., Smith, 673 A.2d at 896 (in challenging the trial court’s imposition оf an unreasonably “lenient” sentence, the Commonwealth argued that “if a sentence improperly deviates from the established guidelines, the sentence must be vacated”). A defendant, however, shares an equal right to demand that a trial court properly consider the Sentencing Guidelines and impose a reasonable sentence. Indeed,.just as the Superior Court properly grants review of sentences wherein the Commonwealth raises a substantial question regarding the trial court‘s exercise of its discretion in imposing a sentence that was more lenient than that recommended by the Sentencing Guidelines, see, e.g., Commonwealth v. Childs, 445 Pa.Super. 32, 664 A.2d 994, 996 (1995) (citing cases), defendants should have the same opportunity for appellate review of an appeal from a discretionary aspect of sentencing if they establish that their challenge involves a substantial question suitable for appellate review.
. The Commonwealth argues that the Superior Court did conduct appellate review when it applied the per se rule and dismissed Appellant’s claim because he failed to make out a prima facie case showing an abuse of discretion. However, the Commonwealth’s broad view of what constitutes appellate review is contrary to case law, the plain language of § 9781, and our Rules of Appellate Procedure.
This Court has made clear that there are two distinct levels of a challenge to the discretionary aspects of sentencing: (1) raising a substantial question and (2) arguing the merits of the challenge. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17, 18 (1987). Section 9781(b) “merely requires an appellant to indicate how the trial court abused its discretion before the appellate court will consider the merits of his contentions as to the discretionary aspects of his sentence.” Commonwealth v. McFarlin, 402 Pa.Super. 502, 587 A.2d 732, 735 (1991) (emphasis added). This first level of review is further clarified in
. Appellant argues that § 9781 unconstitutionally violates his, and all appellants‘, right to appeal an unreasonably harsh and excessive sentence. See
Dissenting Opinion
dissenting.
I join the Dissenting Opinion of Mr. Justice Eakin, but write separately to address some additional points.
Like Justice Eakin, I have no quarrel with the lead opinion’s comprehensive descriрtion of the workings of the Sentencing Code and the availability of appellate review of discretionary sentencing decisions. I also agree with the lead opinion that a claim that a sentence is excessive, but which falls within the statutory maximum allowable for the crime at issue is not categorically barred from appellate review under the Sentencing Code. Having said that, however, I agree with Justice Eakin that merely invoking the term “excessive sentence” or “manifestly excessive sentence” does not raise a substantial question that there was an unreasonable application of governing sentencing precepts in a particular sentence. Where, as in the case sub judice, the Superior Court determines that an excessive sentencing claim is mere boilerplate and thereby fails to raise a substantial question, I do not believe there has been a denial of the right to appeal an alleged excessive sentence. Instead, there has been a failure to identify a specific claim qualifying for review in an area where, by necessity, deference must be accorded the sentencing judge’s exercise of discretion.
In the late 1980s, two decisions from this Court — Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) and Commonwealth v. Devers, 519 Pa. 88, 546 A,2d 12 (1988) — had the effect of significantly restricting review of discretionary sentencing decisions. In the years since those cases were decided, the Superior Court has had much practical experience in implementing the holdings of those cases and the statutory framework they effectuate, i.e., in identifying what sort of showing is necessary to demonstrate a substantial question that discretion was abused, as is required to warrant an appeal under
The fact that the sentencing court in the case sub judice imposed some maximum, consecutive sentences, and the fact that the overall schеme effectively amounts to a life sentence does not, in my mind, automatically raise a substantial question that the sentence was unreasonable under the Code. Appellant played an active role in three separate gunpoint robberies of business establishments, conducted with conspirators. In each case, there were multiple victims. People who commit multiple violent felonies against many separate victims run a very real and deserved risk of lengthy incarceration without there being anything remotely unreasonable about it. As the sentencing court noted, on the eight robbery convictions and three criminal conspiracy convictions alone, appellant faced a possible maximum sentence — if all sentencеs were the maximum statutorily allowable and they were all imposed consecutively — of 110 to 220 years. Appellant did not receive anywhere near that “maximum allowable sentence.”
Although the overall sentence here has the effect of being a life term, no one component sentence was unlawful. Rather, as is often the case, it is the cumulation of sentences consecutively imposed which leads to appellant’s complaint of excessiveness. But appellant is not entitled to a volume discount for his many violent crimes. There were three separate episodes here and eight separate robbery victims — not to mention the other persons present and threatened by the conspiracies. Each life — whether taken, or whether threatened at gunpoint, as here — has individual value. There is a reason why crimes such as armed robbery are graded as felonies of the first degree, the highest designation short of murder. In short, although appellant received a substantial sentence, it must be remembered that he committed a significant amount of serious crime. In my view, the length of the overall sentence alone does not automatically raise a substantial question.
I have an additional concern with the lead opinion. The claim actually briefed on appeal, and the issue upon which this Court actually granted review, involves appellant’s constitutional challenge to
Although I respectfully disagree with the lead opinion’s assumption that the Superior Court applies a per se rule of non-reviewability, and I disagree with the Court’s mandate, I reiterate that I entirely agree with the lead opinion’s analysis of the general availability of appellate review of discretionary sentencing issues. If we were in the business of issuing advisory or supervisory opinions, I would join those astute observations in a heartbeat. My disagreement arises only from my understanding of Superior Court precedent and the facts and posture of this case.
Dissenting Opinion
dissenting.
The majority states the Superior Court relies on cases that hold “a claim of excessiveness that is raised against a sentence within the statutory limits fails to raise a substantial question as a matter of law.” Proposed Opinion, at 623. I do not think that is the holding below, and therefore must offer my dissent.
Neither this case nor other Superior Court jurisprudence holds that every sentence within the statutory maximum is unreviewable. It holds that if the discretionary aspects of a sentence are to be reviewed (i.e., a substantial question about the sentence has been raised), one must in fact offer some specificity.
The obligation lies with the challenging party to say why that sentence is manifestly excessive — failure to do so is failure to raise a substantial question. Accordingly, while my colleagues offer an analysis with which I cannot disagree, I believe there is a misapprehension of the Superior Court’s decision.
Justice CASTILLE joins this dissenting opinion.