Commonwealth v. Lee

BENDER, J.

• ¶ 11 respectfully dissent.

¶ 2 Appellant asserted in a post-sentencing motion that his sentence was excessive. Under Pennsylvania’s sentencing scheme, which requires the imposition of a minimum and a maximum term of incarceration, Appellant was sentenced to 15 to 96 months’ incarceration. Appellant did not contend that the 15 month minimum sentence was excessive, but did contend that the 96 month maximum sentence was. Pennsylvania, of course, is an indeterminate-sentencing state, meaning that a convicted individual is sentenced to a range of imprisonment, not a definite term, and that the ultimate date of discharge from *415 prison, and thus the ultimate length of the prisoner’s sentence, is determined by the Pennsylvania State Board of Probation and Parole. Although, in setting forth the potential range of punishment, judges are required only to impose a maximum sentence twice that of the minimum sentence, 3 there is no barrier — other than the statutory maximum sentence — to imposing a maximum term greatly exceeding twice the minimum sentence. Here, the court imposed a maximum sentence more than six times greater than the minimum sentence. This decision led Appellant to file a motion to modify the sentence and a claim that the sentence was excessive, particularly given Appellant’s belief that prevailing practices of the Pennsylvania Board of Probation and Parole would relegate him to serving most, if not all, of the maximum sentence.

¶ 3 Since the focus of Appellant’s motion/claim was upon the maximum portion of the sentence, Appellant sought to adduce evidence regarding the Parole Board’s history with respect to paroling prisoners convicted of sexual offenses to bolster his premise that he would very likely serve the overwhelming majority of the maximum sentence imposed upon him. The trial court denied the request concluding that evidence of the parole policies of the Pennsylvania Board of Probation and Parole “was not relevant.” Trial Court Opinion (T.C.O.), 6/10/04, at 2. Referring to this denial, Appellant asserts: “It is respectfully submitted that nothing could be more relevant than the likely period of time a defendant will spend behind bars in a state which adheres to an indeterminate sentencing scheme.” Appellant’s Brief at 18. Although I am not certain that effective appellate review of claims asserting that a sentence is excessive requires an evidentiary hearing, nevertheless, I must state my general agreement with Appellant’s statement.

¶ 4 It is well established that a claim that a sentence is excessive is cognizable before this Court. Indeed, such claims have been found meritorious for more than twenty years, 4 and several recent cases have found this Court vacating sentences imposed by the trial court for excessiveness. While there are many interests at work, and factors to be considered, in imposing a sentence, from one perspective, in attempting to determine whether the sentence imposed is excessive, this Court essentially endeavors to determine whether the “punishment fits the crime.” If, after giving due deference to the sentencing court, the punishment imposed for a criminal transgression appears to a panel of judges to be excessive in light of the criminal activity undertaken, or if the interest cited for justifying the imposition of a sentence does not appear to require the imposition of a' sentence as lengthy as the one under consideration, the appeals court vacates the sentence as excessive. The question the present case brings squarely into focus is whether, in conducting an exces- *416 siveness review, our focus should be upon the minimum or the maximum sentence imposed?

¶ 5 As mentioned above, under our sentencing scheme, the sentencing court is obligated to impose a sentence containing a minimum period of incarceration and a maximum. 42 Pa.C.S. § 975603). Since under Pennsylvania law, a prisoner may not be paroled prior to the expiration of his/her minimum sentence, 5 the “minimum sentence” is a true minimum sentence. However, true to the term indeterminate sentencing, the maximum sentence does not necessarily mean that the prisoner will be imprisoned for the entire length of his maximum sentence. Rather, the actual length of his sentence depends upon the Pennsylvania Board of Probation and Parole. 6 How does the indeterminate nature of the sentence impact a review for excessiveness? Perhaps, to answer this question, it would be beneficial to review certain passages from our caselaw for a perspective on a prisoner’s expectations for release prior to the expiration of his maximum term.

¶ 6 In Commonwealth v. Reefer, 816 A.2d 1136 , 1139 n. 2 (Pa.Super.2003), we stated:

Under our parole system, the expiration of the minimum sentence merely allows a prisoner to be considered for parole. See Rogers v. Pennsylvania Board of Probation and Parole, 555 Pa. 285, 724 A.2d 319 , 321 n. 2 (Pa.1999) (citations omitted). A prisoner otherwise has no entitlement to parole. See id. Parole, under these circumstances, is a matter of legislative grace vested in the discretion of the Parole Board.

The Commonwealth Court, which deals with parole matters far more frequently than does this Court, has similarly stated:

parole is nothing more than a possibility, and if granted, it merely constitutes a favor given by the state, as a matter of grace and mercy, to a prisoner who has demonstrated a probability of his or her ability to function as a law-abiding citizen in society.

Mickens-Thomas v. Board of Probation & Parole, 699 A.2d 792, 796 (Pa.Cmwlth.1997).

¶ 7 Beyond the fact that release prior to the expiration of the maximum term is a matter of grace, in the case of certain specified violent crimes there is the added impetus of conditioned financial grants militating against early release. As pointed out in Commonwealth v. Boyer, 856 A.2d 149 (Pa.Super.2004), through the coercive power of conditioning federal grants to the mandate that prisoners convicted of certain crimes serve a specified percentage of their maximum term, an individual convicted of a qualifying crime 7 in Pennsylvania can expect to serve, on average, 85% of their full sentence.

¶ 8 Consider what the two passages quoted above, in combination with the truth-in-sentencing mandates, indicate. Based upon the above quoted passages, a convicted individual given a sentence of total confinement in a state institution should, in essence, expect to serve the entire sentence, not just the minimum sen *417 tence, unless the Board of Parole and Probation decides, as a matter of grace and mercy, to release him/her early. If the individual is serving a sentence for a qualifying violent crime, the individual has no real expectation of being released prior to serving 85% of his maximum sentence.

¶ 9 In my opinion, given the legal environment set forth above, if we are to conduct a meaningful review of excessiveness claims, it is incumbent upon us to view the whole sentence, ie., the maximum sentence, and not just the minimum sentence. To view only the minimum sentences is to entertain a fiction and disregard reality.

¶ 10 The situation becomes more imperative in cases like the present one, where the maximum sentence is not merely double the minimum sentence, as the statute requires, but, rather, is much more. Here, by focusing upon the minimum sentence imposed, the sentencing court asserts that the sentences imposed were in the standard range. T.C.O. at 2. It is true that the minimum sentence imposed falls within the standard range of the sentencing guidelines. 8 However, Appellant’s maximum sentence is six and-one-half times the minimum and a mere twelve months shy of the statutory maximum. If Appellant indeed serves most of the maximum sentence, as he contends he is likely to do, how can it be asserted that he has received a standard range sentence? Certainly his real life experience will not be consistent with the imposition of a standard range sentence but more that of receiving the statutory maximum. By imposing minimum sentences at the top of the standard range, but máximums at the statutory maximum, the court creates an impression that Appellant has not been sentenced in severe fashion. This is fine as long as Appellant serves a sentence near the minimum. However, if Appellant indeed serves most or all of the maximum sentence, focusing upon the minimum sentence, while reviewing Appellant’s claim of excessiveness, is misleading.

¶ 11 Additionally, unless we are willing to focus upon the maximum sentence instead of the minimum sentence, if the prisoner will be required to serve most or all of the sentence, a sentencing court can do an end run around our normal excessiveness review by imposing standard range mínimums while imposing statutory máxi-mums. Consider the present case, had the trial court imposed a minimum sentence of one-half the maximum, as we most often see, and had this Court adhered to its precedent regarding review of excessiveness claims, I dare say this Court would have stood ready to vacate Appellant’s sentence. Such a sentence would have represented a minimum sentence of more than three times the standard range. 9 In light of relevant precedent, 10 the sentencing court would have been required to explain why this particular set of crimes differs from the common occurrence of these crimes so as to justify the imposition of much greater punishment, and/or demonstrate that some aspect of Appellant’s *418 character or history justified such a radical departure from the guidelines. Undoubtedly, such a departure from the guidelines would have been greeted with much circumspection. However, if we focus- only upon the minimum sentence imposed, we will be obligated to conclude that the sentence is fair and not excessive. Of course, if Appellant does serve the maximum, or most of it, the court will have effectively sentenced Appellant to 89% of the statutory maximum (or close to it) and the sentence will escape meaningful appellate review.

¶ 12 This brings us back to Appellant’s request for a hearing to adduce evidence of the parole practices of the Pennsylvania State Board of Probation and Parole. Unless we -are prepared to review Appellant’s claim of excessiveness based upon the maximum- sentence imposed, I cannot understand how the information Appellant desires to provide the court can be deemed “irrelevant.” As Appellant contends, nothing can be more relevant to an analysis of the propriety of the length of a sentence than the actual time the prisoner will spend in jail. Reviewing Appellant’s claim of excessiveness against the minimum sentence imposed would be ignorant of reality at best and be misleading or deceptive at worst. I can see no way in which a review based upon a faulty premise can give due regard to Appellant’s rights or advance the interests of justice.

¶ 13 Nevertheless, I do not think that it is completely necessary to grant anyone challenging a sentence for excessiveness a hearing to adduce evidence relating to the parole practices of the Pennsylvania Board of Probation and Parole. Rather, I believe it would be more efficient to simply alter our focus, when reviewing the length of sentences, from minimum sentences to maximum sentences. Afterall, if “early” release is not an expectation but an extension of grace, then, from -an academic viewpoint, focusing upon maximum sentences is a more truthful and accurate endeavor. We could also take comfort in the knowledge that if a prisoner is actually granted early release, it is the result of an evaluation by a neutral body that finds such a release in the best interests of the Commonwealth’s citizens. Meanwhile, our attention could then be focused upon whether the circumstances of the particular case justified the possible detention for the maximum sentence imposed.

¶ 14 Upon this standard, I believe that Appellant’s sentence is indeed excessive. In my opinion, there is no rationale set forth in the record that would support the imposition of a virtual statutory maximum sentence. As such, I believe the sentence should be vacated and the matter remanded for resentencing. To the extent this Court is unwilling to focus upon maximum sentences in the abstract when conducting an excessiveness review, then I believe the sentence should be vacated and the matter remanded so that Appellant is provided the hearing he sought. After Appellant has an opportunity to demonstrate the percentage of his maximum term he is likely to serve, an excessiveness review could then follow based upon a more realistic view of the time Appellant will actually spend in prison.

-¶ 15 For the above reasons, I dissent.

. The applicable section, of the Sentencing Code actually requires imposition of a minimum sentence that does not exceed one-half of the maximum. 42 Pa.C.S. § 9756(b). Viewed conversely, and considering that the sentencing guidelines are used as a starting point for determining the minimum sentence, Commonwealth v. Szarko, 420 Pa.Super. 153 , 616 A.2d 26, 27 (1992); Commonwealth of Pennsylvania Commission on Sentencing, Sentencing Guidelines Implementation Manual 5th Ed.1997, at § 303.9(a), p. 147, it might be more accurate to assert that the section requires a maximum that is at least twice the minimum.

. See Commonwealth v. Kittrell, 285 Pa.Super. 464 , 427 A.2d 1380 (1981); Commonwealth v. Parrish, 340 Pa.Super. 528 , 490 A.2d 905 (1985); Commonwealth v. Simpson, 353 Pa.Super. 474 , 510 A.2d 760 (1986).

. See Rogers v. Pa. Bd. Of Prob. And Parole, 555 Pa. 285 , 724 A.2d 319 n. 2 321 (1999).

. Notably, the decision to parole a prisoner upon expiration of the minimum sentence, or any time thereafter to the expiration of the maximum term, is solely within the discretion of the Pennsylvania Board of Probation and Parole and is not subject to judicial review. Rogers, supra.

.The crimes subject to the federal truth-in-sentencing grants are murder and non-negligent manslaughter, forcible rape, robbeiy, and aggravated assáult.

. As indicated in footnote 1, the sentencing guidelines provide.a suggested range for the minimum sentence.

. Moreover, this assessment is based upon a calculation taking the highest value in the standard range. If one starts at a point midway through the standard range, the deviation is much greater. An aggregate mid-way standard range sentence would be seven and one-half months’ imprisonment. Thus, Appellant’s maximum sentence comes in at more than twelve times the mid-range standard range sentence.

. See, e.g., Commonwealth v. Vega, 850 A.2d 1277 (Pa.Super.2004); Commonwealth v. Caraballo, 848 A.2d 1018 (Pa.Super.2004); Commonwealth v. Walls, 846 A.2d 152 (Pa.Super.2004).