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Commonwealth v. Dodge

Superior Court of Pennsylvania

September 11, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TIMOTHY MARK DODGE, Appellant

Appeal from the Judgment of Sentence July 5, 2011 In the Court of Common Pleas of Bradford County Criminal Division at Nos.: CP-08-CR-0000486-2000, CP-08-CR-0000487-2000, CP-08-CR-0000488-2000, CP-08-CR-0000489-2000, CP-08-CR-0000490-2000, CP-08-CR-0000491-2000, CP-08-CR-0000492-2000, CP-08-CR-0000494-2000, CP-08-CR-0000496-2000, CP-08-CR-0000497-2000, CP-08-CR-0000498-2000, CP-08-CR-0000257-2000, CP-08-CR-0000476-2000, CP-08-CR-0000477-2000, CP-08-CR-0000478-2000, CP-08-CR-0000479-2000, CP-08-CR-0000480-2000, CP-08-CR-0000481-2000, CP-08-CR-0000482-2000, CP-08-CR-0000483-2000, CP-08-CR-0000484-2000, CP-08-CR-0000485-2000, CP-08-CR-0000499-2000, CP-08-CR-0000500-2000, CP-08-CR-0000502-2000, CP-08-CR-0000503-2000, CP-08-CR-0000504-2000, CP-08-CR-0000505-2000, CP-08-CR-0000506-2000, CP-08-CR-0000507-2000, CP-08-CR-0000510-2000, CP-08-CR-0000511-2000, CP-08-CR-0000512-2000, CP-08-CR-0000515-2000, CP-08-CR-0000555-2000, CP-08-CR-0000631-2000, CP-08-CR-0000637-2000, CP-08-CR-0000638-2000, CP-08-CR-0000785-2000, CP-08-CR-0000411-2001, CP-08-CR-0000358-2001

BEFORE: BOWES, OLSON, and WECHT, JJ.

OPINION

BOWES, J.

Timothy Mark Dodge appeals from the judgment of sentence of forty years, seven months to eighty-one years and two months incarceration following his re-sentencing after this Court vacated his sentence on two prior occasions. After considerable review, we affirm.

This case is before this Court for the fourth time, after Appellant's third sentencing. A jury convicted Appellant of forty counts of receiving stolen property, [1] two counts of burglary, two counts of criminal trespass, and one count each of possession of a small amount of marijuana, possession of drug paraphernalia, and unauthorized use of a motor vehicle. These convictions arose after Pennsylvania State Police attempted to interview Appellant at his residence about an automobile accident. When Appellant exited the door, police detected a strong odor of marijuana, and Appellant refused police entry into the home, a trailer. Police secured a search warrant for

Appellant's home and eventually his car. Inside Appellant's home, police retrieved six full jewelry boxes, some concealed in cupboards. Police also found two single-barrel shotguns and two compound hunting bows. Numerous items of jewelry were also located in plastic Ziploc bags. In addition, police discovered lock-picking tools. Other items that were recovered included rifle and bow cases, a machete, a bb gun, a pellet gun, an air rifle, a taser, televisions and VCRs, various statues, prescription drugs prescribed to others, marijuana seeds, and growing lights.

Appellant subsequently fled the jurisdiction and police arrested him in Lancaster County, Pennsylvania in February 2000 while he was driving a stolen vehicle. After the litigation of omnibus pre-trial motions, Appellant proceeded to a jury trial. The jury convicted Appellant of the aforementioned crimes. The trial court originally sentenced Appellant to fifty-eight and one-half to 124 years imprisonment. Appellant appealed, and in a published decision, with one judge dissenting, this Court vacated that sentence. Commonwealth v. Dodge, 859 A.2d 771 (Pa.Super. 2004) ("Dodge I"), vacated, 935 A.2d 1290 (Pa. 2007). The Commonwealth appealed, and our Supreme Court vacated this Court's decision and returned the matter to this Court for reconsideration in light of Commonwealth v. Walls, 926 A.2d 927 (Pa. 2007). Commonwealth v. Dodge, 935 A.2d 1290 (Pa. 2007). After remand, in a published decision with one judge dissenting, this Court again vacated the sentence and remanded for re-sentencing. Commonwealth v. Dodge, 957 A.2d 1198 (Pa.Super. 2008) ("Dodge II"). Our Supreme Court denied allowance of appeal.[2] Commonwealth v. Dodge, 980 A.2d 605 (Pa. 2009).

Upon remand, the original trial judge was no longer serving on the bench. Accordingly, a new judge was assigned the case. The court imposed a sentence of fifty-one years, four months and thirty days to 122 years.[3]Appellant filed a post-sentence motion, which the court denied except as to an issue pertaining to restitution. On appeal, this Court, in an unpublished decision, vacated the sentence. Commonwealth v. Dodge, 26 A.3d 1204-1207 (Pa.Super. 2011). After remand, Appellant sought recusal from the sentencing judge. The court denied the recusal motion and re-sentenced Appellant to forty years, seven months to eighty-one years and two months imprisonment. Specifically, the court imposed consecutive sentences of one to two years on the thirty-seven felony counts of receiving stolen property, two to four years and one to two years for the two burglary convictions, six to twelve months for the first-degree misdemeanor receiving stolen property, and one to two months for the unauthorized use of a motor vehicle. The court did not subject Appellant to a prison or probation sentence for the drug offenses and ordered him to pay fines. The consecutive sentences were at the low end of the standard range of the sentencing guidelines. Appellant again filed a post-sentence motion. The sentencing court denied the motion, and this timely appeal ensued.

The sentencing court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant complied, and the trial court authored its Pa.R.A.P. 1925(a) decision. The matter is now ready for this Court's consideration. Appellant raises four interrelated discretionary sentencing issues.

I. Whether the sentencing [c]ourt erred in disregarding factors mandated under the Sentencing Code, such as rehabilitation and the nature and circumstances of the offenses?
II. Whether the sentencing court relied on impermissible factors in imposing sentence?
III. Whether the sentence was arbitrary due to consecutive sentences for numerous separate felony counts of [r]eceiving [s]tolen [p]roperty?
IV. Whether the Sentencing Court ignored this Court's reasoned opinion in two prior cases by again sentencing the defendant to a virtual life term?

Appellant's brief at 7.

Each of Appellant's issues implicates the discretionary aspects of his sentence. "[T]here is no absolute right to appeal when challenging the discretionary aspect of a sentence." Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010); 42 Pa.C.S. § 9781(b); but see Pa.Const. Art. V § 9 ("there shall also be a right of appeal from a court of record . . . to an appellate court").[4] Rather, an "[a]ppeal is permitted only after this Court determines that there is a substantial question that the sentence was not appropriate under the sentencing code." Crump, supra at 1282.

A defendant presents a substantial question when he "sets forth a plausible argument that the sentence violates a provision of the sentencing code or is contrary to the fundamental norms of the sentencing process." In order to properly present a discretionary sentencing claim, a defendant is required to preserve the issue in either a post-sentence motion or at sentencing and in a court-ordered Pa.R.A.P. 1925(b) concise statement. Further, on appeal, a defendant "must provide a separate statement specifying where the sentence falls in the sentencing guidelines, what provision of the sentencing code has been violated, what fundamental norm the sentence violates, and the manner in which it violates the norm."

Commonwealth v. Naranjo, 53 A.3d 66, 72 (Pa.Super. 2012) (citations omitted).

Appellant preserved his issues via his post-sentence motion, Pa.R.A.P. 1925(b) statement, and by providing a Pa.R.A.P. 2119(f) statement. Appellant relies on Dodge II, our Supreme Court's decision in Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002) (plurality), and Commonwealth v. Mastromarino, 2 A.3d 581 (Pa.Super. 2010), in asserting that the imposition of consecutive sentences in this instance, i.e., based on the criminal conduct at issue, results in a manifestly excessive sentence and presents a substantial question for review.

The sentencing court relied on a long line of precedent holding that bald excessiveness claims premised on imposition of consecutive sentences do not raise a substantial question for review, and reasoned that Appellant had not presented a substantial question for this Court to review. See Trial Court Opinion, 6/1/12, at 19 citing Commonwealth v. Koehler, 737 A.2d 225 (Pa. 1999); Commonwealth v. Ahmad, 961 A.2d 884 (Pa.Super. 2008); Commonwealth v. Johnson, 961 A.2d 877 (Pa.Super. 2008); Commonwealth v. Pass, 914 A.2d 442 (Pa.Super. 2005); Commonwealth v. Marts, 889 A.2d 608 (Pa.Super. 2005); Commonwealth v. Johnson, 873 A.2d 704 (Pa.Super. 2005); Commonwealth v. Boyer, 856 A.2d 149 (Pa.Super. 2004); Commonwealth v. Druce, 796 A.2d 321 (Pa.Super. 2002); Commonwealth v. Wellor, 731 A.2d 152 (Pa.Super. 1999); Commonwealth v. Rickabaugh, 706 A.2d 826 (Pa.Super. 1997); Commonwealth v. Hoag, 665 A.2d 1212 (Pa.Super. 1995); Commonwealth v. Gaddis, 639 A.2d 462 (Pa.Super. 1994).

The sentencing court proceeded to erroneously maintain that this Court has subsequently cited Dodge I as authority in Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595 (Pa.Super. 2010) and Mastromarino, supra. See Trial Court Opinion, 6/1/12, at 20 ("After the Pennsylvania Supreme Court vacated Dodge I, two Superior Court panels cited it as authority."). The Gonzalez-Dejusus Court did not rely on Dodge I and instead stated that in determining whether an aggregate consecutive sentencing issue raises a substantial question, we look to whether the sentence prima facie appears excessive based on the criminal conduct that occurred in the case. Gonzalez-Dejusus, supra at 599.[5] Similarly, in Mastromarino, supra, this Court opined, "the preliminary substantial question inquiry in the case sub judice is 'whether the decision to sentence consecutively raises the aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal conduct at issue in the case.'" Id. at 588 (quoting in part Gonzalez-Dejusus, supra at 599). This statement is consistent with 42 Pa.C.S. § 9781(c)(2), which permits an appellate court to vacate a sentence, necessarily meaning a substantial question was raised, where "the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable." 42 Pa.C.S. § 9781(c)(2). Both panels in Gonzalez-Dejusus and Mastromarino declined to find that the appellants raised a substantial question.

The sentencing court confused our holdings in Gonzalez-Dejusus and Mastromarino, and failed to appreciate the critical distinction between a bald excessiveness claim based on imposition of consecutive sentences and an argument that articulates reasons why consecutive sentences in a particular case are unreasonable or clearly unreasonable. To make it clear, a defendant may raise a substantial question where he receives consecutive sentences within the guideline ranges if the case involves circumstances where the application of the guidelines would be clearly unreasonable, resulting in an excessive sentence; however, a bald claim of excessiveness due to the consecutive nature of a sentence will not raise a substantial question. See Commonwealth v. Moury, 992 A.2d 162, 171-172 (Pa.Super. 2010) ("The imposition of consecutive, rather than concurrent, sentences may raise a substantial question in only the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment."); Mastromarino, supra; Gonzalez-Dejusus, supra; Dodge II, supra; 42 Pa.C.S. § 9781; Mouzon, supra; Id. at 629 (Castille, J. dissenting) ("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.").[6]

In determining whether a substantial question exists, this Court does not examine the merits of whether the sentence is actually excessive. Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987). Rather, we look to whether the appellant has forwarded a plausible argument that the sentence, when it is within the guideline ranges, is clearly unreasonable. Concomitantly, the substantial question determination does not require the court to decide the merits of whether the sentence is clearly unreasonable.

Instantly, Appellant recognizes that an excessive sentencing claim will not always raise a substantial question. See Appellant's brief at 13. Nevertheless, he asserts that because his sentence is "a virtual life sentence" for non-violent property crimes, he has presented a substantial question. Appellant has not made a boilerplate claim, insofar as he has cited pertinent legal authority that can be read to support his assertion that a substantial question that the sentence was not appropriate under our Sentencing Code exists.

Nonetheless, we caution defendants that a simple citation to Mouzon, Dodge II, or another case may not be sufficient where the facts of the case do not warrant the conclusion that there is a plausible argument that the sentence is prima facie excessive based on the criminal conduct involved. See Mastromarino, supra; Gonzalez-Dejusus, supra (declining to find a substantial question based on an excessive sentence claim); see also Commonwealth v. Goggins, 748 A.2d 721 (Pa.Super. 2000) (en banc) (mere incantations of statutory provisions and legal conclusions are inadequate to determine if a substantial question is raised); Commonwealth v. Felix, 539 A.2d 371 (Pa.Super. 1988).[7]

Further, we disapprove of Appellant's failure to indicate where his sentences fell in the sentencing guidelines and what provision of the sentencing code was violated. Goggins, supra. The Commonwealth, however, has not objected to the adequacy of Appellant's 2119(f), statement. Therefore, we decline to find waiver based on these technical defects. See Commonwealth v. Gambal, 561 A.2d 710 (Pa. 1989) absent a 2119(f) statement and holding that it may order supplemental briefing on whether a substantial question was raised where there is no objection to the lack of a 2119(f) statement); Commonwealth v. Stewart, 867 A.2d 589 (Pa.Super. 2005) (declining to find waiver of sentencing claim due to lack of Pa.R.A.P. 2119(f) statement where ...


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