Commonwealth v. Mouzon

Justice CASTILLE,

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 description 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 *437 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 — Common wealth 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 42 Pa.C.S. § 9781(b). The doctrine of res ipsa loquitur does not apply in the sentencing arena. A mere allegation of excessiveness, no less than a mere allegation of unreasonable sentencing leniency made by the Commonwealth, is not self-proving. A “substantial” question exists only where the defendant or the Commonwealth actually offers to prove the manner in which, on the facts of an individual case, the sentence was in fact unreasonable under the Sentencing Code guidelines. If a sentence is so obviously excessive, it should not be too difficult to explain why that is so. Appellant failed to do so here.

The fact that the sentencing court in the case sub judice imposed some maximum, consecutive sentences, and the fact that the overall scheme 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 *438 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 sentences 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 42 Pa.C.S. § 9781(b). The lead skirts that issue, see Op. at 628 n. 15, and instead raises and decides an issue premised upon the validity of Superior Court’s alleged per se construction of § 9781 as barring claims of sentence excessiveness. If the lead is correct in its view that the Superior Court was merely applying a long line of precedents holding that “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,” see Op. at 623 & n. 9 (collecting cases), then appellant obviously could have presented a claim *439 in Superior Court that that authority erroneously construed § 9781(b) — which is the claim the lead now finds meritorious. But appellant did not raise such a claim. Instead, appellant apparently believes that it is § 9781(b) itself that categorically bars his claim, and he claims it is unconstitutional for doing so. Appellant’s constitutional challenge fails because it is he who misconstrues § 9781(b) as barring sentencing excessiveness claims. And, because I agree with Justice Eakin that the Superior Court — which has had far more experience with evaluating the requirements of § 9781(b) and Rule 2119(b) than we have had — does not misapprehend the workings of the Sentencing Code in this regard, the issue the court addresses sua sponte fails.

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.