J-E01003-15

                               2015 PA Super 128

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

DOMINIC CALDWELL

                          Appellant                  No. 1191 EDA 2013


       Appeal from the Judgment of Sentence of November 14, 2012
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No.: CP-51-CR-0007114-2011


BEFORE: BOWES, DONOHUE, SHOGAN, LAZARUS, MUNDY, OLSON, WECHT,
        STABILE, and JENKINS, JJ.

CONCURRING OPINION BY WECHT, J.:                       FILED MAY 29, 2015

      The conduct which led to Dominic Caldwell’s conviction for aggravated

assault and other crimes was wanton. It was reckless. It was dangerous. It

put lives at risk.   It deserved to be punished, and punished with severity.

Did it merit a sentence that would result in confinement for over three

decades, and perhaps for life?        Perhaps not.   I have my doubts.    But

sentencing is vested in the sound discretion of the sentencing judge, and is

assailable only for a manifest abuse thereof. Accordingly, with considerable

discomfort, I am constrained to concur.

      Like the majority, I believe that Caldwell raises a substantial question

that the trial court abused its discretion in ordering his sentences to run

consecutively, with insufficient consideration of mitigating circumstances.

See Commonwealth v. Edwards, 71 A.3d 323, 330-31 (Pa. Super. 2013).

I am not entirely satisfied that the trial court fashioned a sentence that
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adequately considered Caldwell’s individualized rehabilitative needs and

mitigating circumstances.     I am concerned that the trial court’s order is

somewhat inconsistent internally, rejecting prospects for rehabilitation on

the one hand, and ordering that Caldwell obtain his GED and job training on

the other.

        At sentencing, Caldwell was twenty-three years of age.            He was

sentenced in the aggregate to a minimum of thirty-one and a maximum of

sixty-two years’ incarceration.    His earliest release date puts him on the

street at fifty-four years of age; his maximum releases him at age eighty-

five.

        Our General Assembly instructs Pennsylvania Courts that: “the

sentence imposed should call for confinement that is consistent with the

protection of the public, the gravity of the offense as it relates to the impact

on the life of the victim and on the community, and the rehabilitative needs

of the defendant.”       42 Pa.C.S.A. § 9721(b).     A trial court abuses its

discretion   when   it   orders   an   aggregate   sentence   that   is   “‘clearly

unreasonable’    within     the    meaning    of    42   Pa.C.S.     § 9781(c).”

Commonwealth v. Coulverson, 34 A.3d 135, 139 (Pa. Super. 2011)

(vacating and remanding for resentencing where, inter alia, “90-year

aggregate maximum potentially consigns a 19-year-old defendant with

mental health problems to life in prison without even a nod to relevant

sentencing factors”).     See also 42 Pa.C.S.A. § 9781(c)(2) (stating that

appellate court should vacate a sentence when “the sentencing court

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sentenced     within    the    sentencing      guidelines   but   the   case   involves

circumstances where the application of the guidelines would be clearly

unreasonable”).

       We have determined that a trial court oversteps its discretionary

bounds by aggregating nonviolent offenses into what is effectively a life

sentence. See, e.g., Commonwealth v. Dodge, 957 A.2d 1198, 1200 (Pa.

Super. 2008) (holding that life sentence for forty counts of receiving stolen

property was excessive); see also Commonwealth v. Dodge, 77 A.3d

1263, 1278 (Pa. Super. 2013) (Wecht, J., dissenting).1 On an individualized

basis, we have extended this consideration to violent crimes, as well. See

Coulverson, 34 A.3d at 139 (reversing eighteen- to ninety-year aggregate

sentence for, inter alia, rape, sexual assault, and aggravated assault as

excessive). As we explained in Coulverson:

       In accordance with our Supreme Court’s pronouncement in
       [Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007)], we
       acknowledge the inherent fluidity of the “reasonableness” inquiry
       as well as the nuanced discretion that hallmarks the sentencing
       process. See [id.] at 963. In accordance with our own decision
       in [Commonwealth v. Dodge, 957 A.2d 1198, 1200 (Pa.
       Super. 2008)], which applied Walls on remand, we also
       recognize that individualized sentencing remains the controlling
       norm of the sentencing process and that a sentence befitting one
____________________________________________


1
      The Supreme Court of the United States has found that a trial court
violated the Eighth Amendment when it ordered a defendant to serve a life
sentence for nonviolent crimes. See Solem v. Helm, 463 U.S. 277 (1983)
(holding that it was a violation of the Eighth Amendment to sentence a
defendant to life for a seventh non-violent felony of writing a bad check for
$100).



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     defendant may not befit another.           Hence, in Dodge, we
     concluded that a sentence spanning the remainder of the
     defendant’s life was “clearly unreasonable” within the meaning of
     Walls even though the defendant, at 42, had a long criminal
     history and was sentenced for multiple offenses. See Dodge,
     957 A.2d at 1202.           The circumstances underlying the
     defendant’s crimes in Dodge do not inform our decision here, as
     the defendant had committed numerous property crimes rather
     than “crimes against the person.” Id. at 1201. We do find
     guidance, however, in the panel’s recognition that the trial judge
     imposed sentence not on a nuanced consideration of the
     statutory factors delineated in sections 9721 and 9781 but with
     “a fixed purpose of keeping Appellant in jail for his life.” Id. In
     Dodge, as here, the trial court imposed sentences commencing
     in the standard range of the guidelines but ordered them to run
     consecutive to one another on 37 counts, rendering an
     aggregate sentence of 58 1/2 to 124 years’ incarceration. Id. at
     1200. Although the court had the benefit of a PSI report, as well
     as an ample opportunity to observe the defendant, and cited the
     defendant’s failed history of rehabilitation, we found the court’s
     sentencing decision “irrational” and “clearly unreasonable.” Id.
     at 1202. Specifically citing the trial court’s “fixed purpose of
     keeping Appellant in jail for his life,” id. at 1201, we eschewed
     the court’s excessive emphasis on retribution at the expense of
     other statutorily mandated considerations, e.g., 42 Pa.C.S.
     [§] 9781(d)(1) (“The nature and circumstances of the offense
     and the history and characteristics of the defendant”), and
     remanded the matter for imposition of a truly individualized
     sentence shorn of the trial judge’s evident agenda.

Coulverson, 34 A.3d at 147-48. “[T]he record as a whole must reflect the

court’s reasons and its meaningful consideration of the facts of the crime

and the character of the offender.” Commonwealth v. Malovich, 903 A.2d

1247, 1253 (Pa. Super. 2006).

     At sentencing, Caldwell’s counsel reminded the court that “[h]e didn’t

shoot anybody.    There was no serious bodily injury here.”         Notes of

Testimony (“N.T.”), 11/14/2012, at 22. Nonetheless, the court focused, not



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unreasonably, on the “gun play, shooting a gun on the street.       You could

have killed someone. But for the grace of God [] no one was killed.” Id. at

43; see id. at 44 (“But for the grace of God that no one is dead[.]”). The

court then announced an aggregate sentence of thirty-one to sixty-two

years’ incarceration, and stated:

      I’m also ordering that you complete your GED program that
      you’re already enrolled in. I think that’s wonderful. I would like
      you to enter job training. If you can take all that energy that
      you gave today in court in speaking and use that when you apply
      for a job when you do get out and you will get out one day, you
      apply that energy into persuading a perspective [sic] employer I
      think you’ll be fine with obtaining employment.

Id. at 47.

      The sentencing court declared Caldwell incapable of rehabilitation. Id.

at 45.   It is difficult to reconcile a sentence bearing a minimum term of

thirty-one years’ incarceration with an order that Caldwell complete his GED

and job training.     Presumably, the GED and job training have some

rehabilitative purpose. Or perhaps they are just calculated to keep Caldwell

occupied. We do not know. The sentencing court does not tell us. At all

events, I am hard-pressed to imagine what rehabilitative purpose Caldwell’s

job training may serve him upon release three decades from now at a

minimum, if ever in his lifetime.

      I believe that the sentence reflects the court’s focus on the (thankfully

unrealized) possibility that someone could have been killed by Caldwell’s

criminal actions.   Perhaps the mandate for a GED and job training is a



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backhanded or unstated nod to some hope for Caldwell’s rehabilitation, or

perhaps it is lip service, or surplusage. The record on this point is somewhat

opaque.

      Still in all, faithful to our precedent, I am unable to conclude that

Caldwell’s sentence is “clearly unreasonable” or that it represents a manifest

abuse of discretion. Compare Coulverson, 34 A.3d at 147-48; Malovich,

903 A.2d at 1253; Dodge, 77 A.3d at 1278.           As the learned majority

observes, the sentencing court had the benefit of Caldwell’s arrest record, a

pre-sentence investigation, and Caldwell’s allocution when fashioning his

sentence. Maj. Opinion at 12-13. The record reflects that the sentencing

court considered only a minimal amount of the appropriate sentencing

factors specific to Caldwell and the facts at hand; nonetheless, minimal

consideration is all that is required. See Walls, 926 A.2d at 963. Moreover,

had the court further explained itself with appropriate deliberation and

discussion on the record, Caldwell’s sentence would have been neither

excessive per se nor an abuse of discretion. I cannot conclude that, in this

instance, the sentencing court violated the sentencing process or abused its

discretion in fashioning Caldwell’s sentence. The court’s consideration of the

relevant factors was minimal, as noted above. I consider the court’s efforts

barely adequate to affirm.     But, as a matter of law, barely adequate is

adequate enough.

      Accordingly, I concur.




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