Com. v. Ritchey, J. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JERRY LEE RITCHEY, JR., :
:
Appellant : No. 96 WDA 2014
Appeal from the Judgment of Sentence December 10, 2013,
in the Court of Common Pleas of Venango County,
Criminal Division, at No(s): CP-61-CR-0000029-2012
BEFORE: PANELLA, LAZARUS, and STRASSBURGER, JJ.*
CONCURRING MEMORANDUM BY STRASSBURGER, J.:FILED JUNE 17, 2015
I join the majority memorandum which affirms the judgment of
sentence, except for two areas of disagreement noted below.
First, with respect to footnote 1 in the majority memorandum, the
majority opines that the Wiretap Act permits any Court of Common Pleas to
authorize a warrant under the Wiretap Act regardless of where the crime or
crimes are occurring. I believe this is an incorrect statement of the law.
It is a fundamental precept of law that “‘the court has no
jurisdiction of the offense unless it occurred within the county of
trial ...’” The locus of a crime is always in issue, because the
court has no jurisdiction over an offense unless it occurred within
the county of trial or unless, by some statute, it need not. For a
county to take jurisdiction over a criminal case, some overt act
involved in that crime must have occurred within that county.
Moreover, in order to base jurisdiction on an overt act, the act
must have been essential to the crime[;] an act which is merely
incidental to the crime is not sufficient. We must also look to the
nature of the offense and the elements thereof to determine
*Retired Senior Judge assigned to the Superior Court.
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whether the crime was sufficiently related to the locus where the
defendant is being prosecuted.
Commonwealth v. Webster, 681 A.2d 806, 808-09 (Pa. Super. 1996)
(quoting Commonwealth v. McPhail, 631 A.2d 1305, 1311 (Pa. Super.
1993) (citations omitted)). Accordingly, I disagree with the sentiment
expressed in the second part of footnote 1. Not only is the majority
incorrect, but there is no reason to reach this issue. It is pure dictum.
Additionally, with respect to Ritchey’s sentence, I reiterate my
disagreement with our standard of review in cases involving the
discretionary aspects of sentencing. See Commonwealth v. Zirkle, 107
A.3d 127 (Pa. Super. 2014) (Strassburger, J. concurring).
My concern is not with the trial court’s exercise of
discretion in [appellant’s] case, but with the fact that our review
of a trial court’s sentencing discretion in general, and its decision
to impose consecutive or concurrent sentences in particular, is
treated differently than our review of any other exercise of a trial
court’s discretion.
The abuse-of-discretion standard is applied by this Court in
reviewing trial courts’ exercises of discretion on issues from the
continuance of trial, Commonwealth v. Antidormi, 84 A.3d
736, 745 (Pa. Super. 2014); to the withdrawal of a plea,
Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa. Super.
2013); to the reception of evidence, Commonwealth v. Akbar,
91 A.3d 227, 235 (Pa. Super. 2014); to the weight of the
evidence, Commonwealth v. Landis, 89 A.3d 694, 699 (Pa.
Super. 2014). Thus, this Court is quite practiced in determining
whether an appellant established that the trial court “ignored or
misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.” Commonwealth v. Raven, 97 A.3d
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1244, 1253 (Pa. Super. 2014) (quoting Commonwealth v.
Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)).
There is no sound reason why, in reviewing a trial court’s
decision to impose consecutive sentences, we do not consider
whether the record establishes any of these signs of
discretionary abuse, but instead must focus on the procedural
hurdles of Rule 2119(f) and the amorphous and inconsistent
categorization of an issue as one that does or does not raise a
substantial question. See, e.g., Commonwealth v. Chilcote,
578 A.2d 429, 441 (Pa. Super. 1990) (Popovich, J., concurring)
(“[C]ompliance with the requirements of [Rule 2119(f)] wastes
valuable judicial resources by adding an additional tier to our
analysis of a defendant’s attack on the discretionary aspects of
his sentence….”); Commonwealth v. McFarlin, 587 A.2d 732,
738 (Pa. Super. 1991) (en banc) (Del Sole, J., dissenting)
(“Widely divergent and inconsistent views of what constitutes a
substantial question have arisen resulting in nonuniform
treatment of a defendant’s ability to appeal a sentencing
matter.”).
Indeed, not only is the disparate treatment of sentencing
discretion unwarranted and unreasonable, it is also at odds with
our Constitution. Under Article V, Section 9 of the Pennsylvania
Constitution, “an accused has an absolute right to appeal.”
Commonwealth v. Franklin, 823 A.2d 906, 908 (Pa. Super.
2003) (quoting Commonwealth v. Wilkerson, 416 A.2d 477,
479 (Pa. 1980)). However, under 42 Pa.C.S. § 9781 and
Pa.R.A.P. 2119(f), this Court is permitted to grant allowance of
appeal to review the discretionary aspects of a sentence only if
we, in our discretion, find that the appellant filed the appropriate
statement raising “a substantial question that the sentence
imposed is not appropriate” under the Sentencing Code. 42
Pa.C.S. § 9781(b). Further, this Court’s exercise of discretion in
ruling on the discretionary aspects of a sentence is
unreviewable. 42 Pa.C.S. § 9781(d) (“No appeal of the
discretionary aspects of the sentence shall be permitted beyond
the appellate court that has initial jurisdiction for such
appeals.”). Therefore, under Section 9781, this Court has
complete, unreviewable discretion to deny a criminal defendant
his or her right to an appeal the discretionary aspects of a
sentence.
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Section 9781(b) clearly infringes upon a
defendant’s absolute right to an appeal. While I
acknowledge that an en banc panel of this Court has
held that the infringement is a reasonable regulation
of the right to an appeal, McFarlin, 587 A.2d at 736,
I agree with the thoughtful analysis of this issue of
the Honorable Joseph A. Del Sole and his conclusion
that the statutory limitations placed upon a criminal
defendant’s right to an appeal the discretionary
aspects of his or her sentence are unconstitutional:
Pennsylvania’s procedure of indeterminate
sentencing, “necessitates the granting of broad
discretion to the trial judge, who must determine,
among the sentencing alternatives and the range of
permissible penalties, the proper sentence to be
imposed.” Commonwealth v. Martin, [], 351 A.2d
650 (1976). The Supreme Court of Pennsylvania has
stated that the importance of this discretionary
power cannot be overemphasized, and has examined
its role and its potential for abuse in Martin, supra.In this regard the [S]upreme [C]ourt has stated:
[M]any commentators argue that it is
one of the most important, and most
easily abused powers vested in the trial
court today. In United States v.
Waters, [citation omitted], Judge
Wilkey, speaking for the court, stated:
What happens to an offender
after conviction is the least
understood, the most fraught
with irrational discrepancies,
and the most in need of
improvement of any phase in
our criminal justice system.
It is true that the sentence imposed is
normally left undisturbed on appeal
because the trial court is in a far better
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position to weigh the factors involved in
such a determination. However, we have
held that the court’s discretion must be
exercised within certain procedural
limits, including the consideration of
sufficient and accurate information.
[Martin,] 351 A.2d at 657 (footnotes omitted.)
Thus, the important power held by those who
impose a discretionary sentence is a power which
must be exercised within limits. As a check on those
limits the citizens of this Commonwealth have been
provided with the constitutional provision found in
Article V, Section 9, which ensures that a defendant
has a right to appeal. Section 9781(b) of the
Sentencing Code eliminates that right, and instead
gives the reviewing court the power to “grant” or
“allow” appeal, in its discretion, when the
discretionary aspects of a sentence are challenged.
… The question is not whether trial courts will
or will not abuse their discretion. We assume
members of the bench of this Commonwealth will
exercise their duty in accordance with the high
standards for which they are known, however we
must recognize that mistakes do occur and appellate
courts exist to remedy such situations. The real
issue is the legislative attempt to permit our [C]ourt
to exercise our discretion to limit review. This
discretionary action, which is not subject to review,
prohibits what our own constitution guarantees—the
right to appeal.
***
… I do not agree that [] any limitation placed
on a person’s right to appeal can withstand analysis
under Article V, Section 9. While I agree that a
person may waive [his or her] right to appeal by [his
or her] own action, I reject the concept that the right
may be eliminated by statute. Instead I agree with
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our distinguished colleague, Judge Zoran Popovich,
who stated in his concurring opinion in Chilcote, Ҥ
9781(b) violates the absolute right of a defendant to
appeal his sentence.” [Chilcote, 578 A.2d at 441].
McFarlin, 587 A.2d at 738-39 (Del Sole, J., dissenting).
Accordingly, I am of the opinion that every criminal
defendant, who preserves the issue for appeal, has the
constitutional right to have this Court decide the merits of a
claim that the sentencing court abused its discretion in imposing
consecutive rather than concurrent sentences.
Zirkle, 107 A.3d at 134-136.
Instantly, if Ritchey’s sentences had been ordered to run concurrently,
he would have received an aggregate sentence of 16 to 32 months of
incarceration. Instead, he was given all consecutive sentences, for an
aggregate judgment of sentence of 96 to 192 months of incarceration. We
presently affirm that judgment of sentence, without reaching the merits of
his claim, because, correctly applying the controlling case law, we hold that
Ritchey’s aggregate sentence is not manifestly excessive and thus he failed
to raise a substantial question. Accordingly, whether he was ordered to
spend a minimum of 16 or 96 months in prison, or any amount in between,
Ritchey is unable to have an appellate court even review the trial court’s
exercise of discretion. Under the current state of the law, the trial judge had
absolute, unassailable discretion to order a term of incarceration that
differed by a factor of six.
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