Com. v. Satchell, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellant
v.
DEONTE SATCHELL
Appellee No. 610 EDA 2014
Appeal from the Judgment of Sentence entered July 12, 2013
In the Court of Common Pleas of Delaware County
Criminal Division at No: CP-23-CR-0004850-2011
BEFORE: DONOHUE, MUNDY, and STABILE, JJ.
DISSENTING MEMORANDUM BY STABILE, J.: FILED MARCH 09, 2015
Deonte Satchell received a sentence of time served (167 days) to 23
months in jail plus probation for brutally raping and assaulting his girlfriend.
In my view, the Majority does not apply the applicable legal standards
correctly in evaluating whether the trial court’s sentence is unreasonable.
By applying applicable legal standards correctly, I would hold the sentence is
unreasonably lenient. The law does not support the trial court’s reasons for
deviating well below the applicable range of the Sentencing Guidelines.1
Further, the trial court did not properly account for the serious nature of
Appellee’s crimes and the protection of the public. I respectfully dissent.
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1
204 Pa. Code §§ 303.1-.18(c).
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The Sentencing Code2 sets forth our procedure for reviewing the
discretionary aspects of sentences when a substantial question exists 3 that
the sentence is inappropriate:
(c) Determination on appeal.--The appellate court shall
vacate the sentence and remand the case to the sentencing
court with instructions if it finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines
erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly
unreasonable; or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
In all other cases, the appellate court shall affirm the sentence
imposed by the sentencing court.
42 Pa.C.S.A. § 9781(c) (emphases added); see also Commonwealth v.
Walls, 926 A.2d 957, 963-67 (Pa. 2007) (setting forth the legal standard
under which this Court reviews the discretionary aspects of a sentence
imposed outside of the Sentencing Guidelines’ range). The Majority
accurately and thoroughly recounts our standard of review. However, it
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2
42 Pa.C.S.A. §§ 9701-81.
3
I agree with the Majority that the Commonwealth’s claim that “that the
trial court imposed an unreasonable sentence outside of the guidelines and
did not justify its sentence with sufficient reasons raises a substantial
question in this case.” Commonwealth v. Wilson, 946 A.2d at 767, 770
n.6 (Pa. Super. 2008), aff’d per curiam, 971 A.2d 1121 (Pa. 2009).
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does not mention the Sentencing Guidelines that apply to Appellee’s
offenses.
Reference to the Guidelines highlights the leniency of Appellee’s
sentence. Under the applicable Guidelines, rape and involuntary deviate
sexual intercourse (IDSI) are Level 5 offenses:
Level 5 provides sentence recommendations for the most violent
offenders and those with major drug convictions . . . . The
primary purposes of the sentencing options at this level are
punishment commensurate with the seriousness of the criminal
behavior and incapacitation to protect the public.
204 Pa. Code § 303.11(b)(5). Appellee’s rape and IDSI convictions have
offense gravity scores (OGSs) of 12. Appellee, who had no prior convictions,
has a prior record score (PRS) of 0. The Guidelines range for an OGS of 12
and a PRS of 0 is 48 – 66 months, and the aggravated/mitigated ranges are
+/- 12 months. See 204 Pa. Code §§ 303.15-.16. Thus, the minimum
suggested mitigated-range sentence called for Appellee to serve three years
in prison. Instead, the trial court imposed a sentence with a maximum
incarceration (two years less one day), i.e., one year less than the
minimum suggested mitigated-range sentence.4
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4
The Pennsylvania Commission on Sentencing’s 2013 Annual Report further
highlights the unusually lenient nature of Appellee’s sentence. See
Pennsylvania Commission on Sentencing, Annual Report, at 59, Table 7
(2013), available at, http://pcs.la.psu.edu/publications-and-
research/annual-reports/2013/view (last accessed Feb. 18, 2015). In 2013,
the year Appellee was sentenced, only 5 out of 133 convicted rapists
received a county jail sentence (as Appellee did). One offender received
probation. Similarly, in 2013, 6 out of 218 offenders convicted of IDSI
(Footnote Continued Next Page)
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The fact that the sentence here is outside of the Guidelines is central
to the Commonwealth’s argument. In fact, at the sentencing hearing, the
Commonwealth conceded that a mitigated-range sentence would be
acceptable, but strenuously argued for the trial court to sentence within the
Guidelines. I am aware that the Sentencing Guidelines are advisory. See,
e.g., Walls, 926 A.2d at 961-62 & n.3. The Sentencing Code nonetheless
requires a trial court to consider the Guidelines and explain on the record the
reasons for imposing a sentence outside of the Guidelines. 42 Pa.C.S.A.
§ 9721(b). The Sentencing Code further requires this Court to examine
outside-the-Guidelines sentences for unreasonableness instead of clear
unreasonableness for inside-the-Guidelines sentences. Id. § 9781(c)(2) and
(3). Here, like in Walls, the “the sentencing court considered the
guidelines.” Walls, 926 A.2d at 967. However, unlike in Walls, the trial
court failed to provide proper justification for departing from the Guidelines.
Cf. id.
This Court determines whether a sentencing court abused its discretion
as follows:
(d) Review of record.--In reviewing the record the appellate
court shall have regard for:
_______________________
(Footnote Continued)
received a county jail sentence. Two offenders (presumably one was
Appellee) received probation. I am aware that trial courts sentence
individual defendants, and cannot and should not tailor sentences to fit
statewide data. I provide these statistics only to highlight the unusually
lenient nature of Appellee’s sentence.
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(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(d). In Walls, our Supreme Court described this
standard as a “component of the jurisprudential standard of review
for an abuse of discretion.” Walls, 926 A.2d at 962 (emphasis added).
Thus, the § 9781(d) factors are how this Court determines whether a
sentencing court abused its discretion.
The Majority mentions § 9781, but fails to apply it. While a trial court
has wide latitude in imposing sentence, its discretion is not unfettered or
absolute. Commonwealth v. Melvin, 103 A.3d 1, 53-54 (Pa. Super. 2014)
(“In fashioning a sentence, we have acknowledged that trial courts are
vested with great, but not unfettered discretion.”) (internal quotation
omitted); Commonwealth v. Whitman, 880 A.2d 1250, 1252 (Pa. Super.
2005) (“While sentencing courts do possess broad discretion, that discretion
is not unfettered and remains subject to appellate review.”), rev’d in part on
other grounds per curiam, 918 A.2d 115 (Pa. 2007); Commonwealth v.
Cornish, 589 A.2d 718, 720 (Pa. Super. 1991); see also Walls, 926 A.2d
at 968 (Baer, J., concurring) (“An appellate court should vacate a sentence
where the trial court provides no basis, or an unreasonable basis, for the
deviation [from the Guidelines].”).
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Our standard of review is not some talismanic key that closes the door
to appellate review. Walls counsels that we must evaluate the
reasonableness of the sentence using the § 9781(d) factors:
[U]nder the Sentencing Code an appellate court is to exercise its
judgment in reviewing a sentence outside the sentencing
guidelines to assess whether the sentencing court imposed a
sentence that is “unreasonable.” 42 Pa.C.S. § 9781(c), (d).
Yet, what makes a sentence “unreasonable” is not defined in the
statute. Generally speaking, “unreasonable” commonly connotes
a decision that is “irrational” or “not guided by sound judgment.”
THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE, 2084 (2d
ed. 1987); see 1 Pa.C.S. § 1903 (words to be construed
according to their common and approved usage). While a
general understanding of unreasonableness is helpful, in this
context, it is apparent that the General Assembly has intended
the concept of unreasonableness to be a fluid one, as
exemplified by the four factors set forth in Section 9781(d) to be
considered in making this determination. Indeed, based upon
the very factors set out in Section 9781(d), it is clear that the
General Assembly intended the concept of unreasonableness to
be inherently a circumstance-dependent concept that is flexible
in understanding and lacking precise definition. Cf. United
States v. Crosby, 397 F.3d 103, 115 (2d Cir. 2005) (explaining
concept or reasonableness in context of sentencing matters).
Walls, 926 A.2d at 963.
The Walls court declined to fashion any “concrete rules,” except that
we must look to §§ 9781(d) and 9721(b) to analyze the reasonableness of a
sentence. Moreover, although our Supreme Court has stated that this Court
should “infrequently” find a sentence unreasonable, Walls, 926 A.2d 964, it
did not hold this Court may never reverse a sentence as unreasonably
excessive or lenient. Even after Walls, we have found sentences
unreasonable. See, e.g., Commonwealth v. Daniel, 30 A.3d 494, 499
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(Pa. Super. 2011) (holding trial court’s reasons did not justify 11½ – 23
month sentence for aggravated assault); Wilson, 946 A.2d at 769 (holding
trial court’s reasons did not justify 11½ – 23 month sentence for robbery
and burglary).
Because the Majority has mentioned the § 9781(d) factors only in
passing, I will apply the factors myself. I look first to “the nature and
circumstances of the offense and the history and characteristics of the
defendant.” 42 Pa.C.S.A. § 9781(d)(1). Appellee raped and assaulted his
girlfriend by using physical force to subdue her despite her repeated, explicit
pleas to stop. At sentencing, the trial court first acknowledged the
seriousness of Appellee’s crimes, stating that “[t]his type of rape is so
destructive because it betrays the fundamental basis of a loving
relationship.” N.T. Sentencing, 7/12/13, at 4. Yet, the trial court later
minimized the depravity of Appellee’s conduct, stating that the rape “lacked
the attendant circumstances associated with most rapes. This crime did not
involve a fiend lurking in a park, nor a burglar attacking [a] homeowner, nor
a lothario on a first date with his prey.” Trial Court Opinion 3/10/14, at 13.
The trial court provided no support for its bald assertion that “most
rapes” involve sensational attacks on unsuspecting strangers or date rapes,
and there is none in the record. In fact, the opposite is true: most sexual
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assault victims know the perpetrators.5 It is true in this case, too. The
victim and Appellee were in a relationship, lived together, and attended the
same church. I agree with the Commonwealth that this case fits the
unfortunate, common profile of domestic assault. Appellee and the victim
once had a loving relationship, and there was a possibility for reconciliation,
which led to the victim’s unwillingness to prosecute Appellee.
The trial court also noted that it had never seen a rape victim testify
on the rapist’s behalf at sentencing. Trial Court Opinion, 3/10/14, at 13-14.
This misses the point. As the Commonwealth notes, domestic violence
victims commonly do not want the Commonwealth to prosecute. If the
victim does not testify, the Commonwealth cannot even bring charges. For
example, here the victim’s testimony was the sine qua non of the proof of
forcible compulsion. Thus, where a victim wants to testify on behalf of the
defendant, the case cannot proceed to a preliminary hearing or trial.
The trial court also offered the speculative conclusion that the victim
does not suffer from Battered Woman Syndrome. I realize that a sentencing
judge must evaluate a wide range of material at sentencing, but Appellee
here presented no evidence that supports the trial court’s nonprofessional
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5
Intimate partners account for almost 30% of rapes or sexual assaults of
females, and over 70% of female rape victims know their assailants.
Shannan M. Catalano, National Crime Victimization Survey: Criminal
Victimization, 2005, at 9 Table 9 (Bureau of Justice Statistics, Sept. 2006),
available at http://www.bjs.gov/content/pub/pdf/cv05.pdf.
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diagnosis. Appellee could have presented evidence in this regard, but he did
not. Medical, psychological, and psychiatric diagnoses are properly left to
qualified experts. Moreover, the trial court did not acknowledge that the
victim was threatened by one of Appellee’s friends after she reported the
rape to police. See N.T. Trial, 2/20/13, at 286. Also unmentioned is the
fight that occurred between the victim and Appellee—while he was on bail
and subject to a protection from abuse order—necessitating police
involvement. See N.T. Sentencing, 5/24/13, at 70-71.
The Commonwealth also argues that the trial court failed to consider
Appellee’s prior contact with law enforcement. The trial court should have
given some weight, rather than none, to Appellee’s violation of the
protection from abuse order while on bail. It also understated his arrest
record. The trial court had little information regarding the facts or
disposition of Appellee’s prior charges, except that they were withdrawn in
Philadelphia Municipal Court. See N.T. Sentencing, 7/12/13, at 8-10.
However, it repeatedly understated what little information it had. Appellee
did not have “one prior arrest for simple assault.” Id.; Trial Court Opinion,
3/10/14, at 4, 11. Appellee had been arrested at least twice, for robbery (a
first-degree felony), simple assault, terroristic threats, and harassment.
See N.T. Sentencing, 5/23/14 at 48. Though the charges were withdrawn,
the trial court failed to give proper weight to Appellee’s arrest history
because it was mistaken regarding that history.
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Next, I consider the trial court’s opportunity to observe Appellee, and
the results of the presentence investigation. 42 Pa.C.S.A. § 9781(d)(2).
Though I am skeptical that the record supports Appellee’s sincere
remorsefulness, I agree with the Majority that we cannot reassess the trial
court’s factual finding in this regard.
Turning to the third factor, 42 Pa.C.S.A. § 9781(d)(3), the trial court’s
findings are either unsupported by the record, or do not support imposition
of a lenient sentence.
The trial court opined that the victim’s statements at sentencing
constituted “90%” of its motivation for imposing a lenient sentence. See
N.T. Sentencing, 7/12/13, at 5. While the victim’s wishes are certainly a
valid consideration, they cannot be used to the exclusion of almost every
other consideration. A sentencing court must consider, inter alia, the
protection of the public and the impact of the offense on the community.
See 42 Pa.C.S.A. § 9721(b). Thus, in addition to the victim’s wishes, a
sentencing court must take into account the general deterrent effect of the
sentence. Here, by relying almost entirely on the victim’s wishes, the trial
court failed to take into account protection of the public and the impact of
the offense on the community.
Furthermore, a trial court may not “double count” factors already
taken into account by the Guidelines. Commonwealth v. Goggins, 748
A.2d 721, 732 (Pa. Super. 2000) (en banc). For that reason, I would find
error in using Appellee’s PRS of 0 to deviate below the mitigated range. The
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Guidelines already account for Appellee’s lack of prior convictions. See
Commonwealth v. Celestin, 825 A.2d 670, 679 (Pa. Super. 2003) (“The
court’s reliance upon [the defendant’s lack of a prior record] was clearly
misplaced since the guideline sentence recommendations already
contemplate a defendant’s [PRS].”).
Likewise, the trial court erred in relying on the fact that Appellee did
not make use of a weapon during the rape. Had Appellee used or possessed
a deadly weapon, the deadly weapon enhancement (DWE) sentencing
matrixes—and not the basic matrix would have applied. The DWE matrixes
include higher recommended Guidelines ranges. See 204 Pa. Code
§ 303.17.
The trial court further erred in relying on Appellee’s lifetime
registration requirement under Pennsylvania’s Sex Offender Registration and
Notification Act (SORNA).6 Although it recognized SORNA registration is not
a punishment, the trial court opined that the burden of SORNA registration is
“arguably more severe than incarceration.” Trial Court Opinion 3/10/14, at
15-17. SORNA registration is a collateral consequence of a conviction. It is
not punishment. Commonwealth v. McDonough, 96 A.3d 1067, 1071
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6
42 Pa.C.S.A. §§ 9799.10-.41.
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(Pa. Super. 2014). I also do not believe that SORNA registration is
“arguably worse” than actual incarceration.7
The Majority characterizes the trial court’s comments on Appellee’s
prior record, the lack of a weapon, and SORNA consequences as a mere
description of the circumstances of the case. The Majority charges the
Commonwealth with taking the trial court’s statements out of context.
Rather, it is the Majority that takes the trial court’s statements out of
context. The record clearly shows that the trial court relied on these factors
to justify imposing a sentence outside of the Guidelines.
During its statutorily required on-the-record colloquy of the reasons
for deviating from the Sentencing Guidelines, the trial court stated that
Appellee had a zero prior record score, N.T. Sentencing, 7/12/13, at 8, did
not use a weapon, id. at 9, and will be subject to lifetime SORNA
registration, id. at 6. See also id. at 12 (“Now in light of everything I’ve
said, I’m deviating from [the Sentencing Guidelines].”). If the trial court’s
oral colloquy is ambiguous, its written opinion makes clear that it relied on
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7
The Majority erroneously categorizes the trial court’s use of SORNA
registration as a description of the “particular circumstances of the case.”
Majority Memorandum at 17. Nothing about SORNA, however, is particular
to this case. All offenders convicted of rape must register for life as sex
offenders. See 42 Pa.C.S.A. §§ 9799.14(d)(2), 9799.15(a)(3) (designating
rape as a Tier III offense requiring lifetime registration). Indeed, if, as the
trial court posited, SORNA registration is “arguably worse than incarceration”
and a reason to mitigate here, then it is a reason to mitigate in every rape
case.
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these factors (incorrectly so, see supra) to deviate below the Sentencing
Guidelines. Part B of the trial court’s opinion is entitled “Criteria for
Deviation from Sentencing Guidelines.” Trial Court Opinion, 3/10/14, at 10.
In Part B(1), the trial court stated “The [Appellee] had no prior history of
violent behavior. In fact, the [Appellee] has no prior criminal history (i.e., a
zero [prior] record score).” Id. at 11 (citation of notes of testimony
omitted); see also id. at 18 (suggesting that the sentence is not manifestly
unreasonable because Appellee “had no prior criminal history”). Again, in
Part D of its opinion, the trial court stated its believe that SORNA registration
is “arguable more severe than incarceration.” Id. at 15-17.
By sentencing Appellee to less than two years in jail, the trial court
ensured that it—and not the Pennsylvania Board of Probation and Parole—
was the parole authority. See 42 Pa.C.S.A. § 9775. At sentencing, the trial
court noted that the Board of Probation and Parole often does not grant
parole to sex offenders upon the expiration of their minimum sentences.
N.T. Sentencing, 5/24/13, at 51-53. It accordingly expressed concern that,
if it imposed a sentence at the bottom of the mitigated range (3 – 6 years),
Appellee would remain in prison long after he served the minimum sentence.
Id. at 56; see also Trial Court Opinion, 3/10/14, at 15 & n. 10. The trial
court opined “that a prolonged incarceration of [Appellee] just might in the
long run negatively impact the safety of [the] public and ‘make [Appellee] a
bitter parolee, and a greater danger to the community.’” Trial Court
Opinion, 3/10/14, at 11 (quoting N.T. Sentencing, 7/12/13, at 8-9)). I fail
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to see how prolonged incarceration or parole would make Appellee a
greater danger to the community than would a short stint in jail followed by
release into the community at large. I do not believe it is appropriate for a
trial court to speculate regarding a defendant’s expected release date on
state parole. Here, the trial court allowed its distaste for the Board of
Probation and Parole’s parole decisions for sex offenders to color its
sentencing decision.
Finally, I review the applicable Sentencing Guidelines. 42 Pa.C.S.A.
§ 9781(d)(4). As in Daniel, this sentence is not a “slight departure from
those recommendations.” Daniel, 30 A.3d at 499. Appellee used force to
overpower, assault, and rape his paramour. Despite the violent nature of
Appellee’s crimes, the trial court’s maximum aggregate sentence of
incarceration (two years less one day) is one year less than the minimum
suggested mitigated Guidelines ranges (three years). The trial court’s
findings do not support its departure from the Sentencing Guidelines.
Although the trial court heavily emphasized the victim’s forgiveness of
Appellee and the potential for rehabilitation, the sentence must still be
consistent with the gravity of the offense. See Wilson, 946 A.2d at 775
(“Here, the [trial] court did not but should have recognized the brutal nature
of the acts Wilson committed.”); Celestin, 825 A.2d at 681-82 (“On
remand, we remind the trial court that its sentence must reflect not just the
rehabilitative needs of Mr. Celestin, but also the gravity of the offense and
protection of the public.”).
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The facts of this case are a depressingly common feature of American
life. Appellee committed a depraved act of violence against his domestic
partner. When charges were filed, the victim had second thoughts and did
not want to testify or see her boyfriend go to prison. These facts are not
unusual or unique and do not, therefore, justify a sentence well below the
mitigated range of the Sentencing Guidelines. The unreasonably lenient
sentence imposed fails to account for the serious, violent nature of
Appellee’s crimes, and it fails to accord the citizens of this Commonwealth
the protection they deserve.
Under the Majority’s analysis, it is hard to envision how we could
vacate any sentence on appeal. A trial court has wide discretion in
sentencing, but that does not mean we must act as a rubber stamp for trial
courts on appeal.8
Certainly, the victim’s forgiveness of Appellee and his need for
rehabilitation are relevant factors at sentencing. Indeed, these factors may
suggest the appropriateness of a mitigated sentence, something the
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8
In fact, Article V, § 9 of the Pennsylvania Constitution guarantees the right
of appeal. I realize that we have rejected a constitutional challenge to
§ 9781, which limits the right to challenge the discretionary aspects of
sentencing on appeal. See Commonwealth v. Chilcote, 578 A.2d 429,
435-37 (Pa. Super. 1990), appeal dismissed as improvidently granted, 625
A.2d 614 (Pa. 1993). However, I am sympathetic to the argument that
erecting higher and higher arcane procedural barriers runs afoul of Article V,
§ 9 when those limitations become unreasonable.
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Commonwealth conceded here. These factors, however, do not obviate the
social and legal imperative that an offender’s punishment must reflect the
seriousness of his crimes and ensure the protection of the public. 42
Pa.C.S.A. §§ 9721(b), 9781(d). The sentence here belies adequate
consideration of these two items. Rather, this case is like Daniel, where we
concluded that the defendant’s drug addiction and acceptance of
responsibility by pleading no contest were insufficient reasons to impose a
11½ – 23 month sentence for an aggravated assault resulting in serious
bodily injury to the victim. Daniel, 30 A.3d at 498-99. This case is like
Wilson, where we held the defendant’s drug dependence and stated
penitence, did not justify a 11½ – 23 month sentence for his guilty pleas to
robbery and burglary. Wilson, 946 A.2d at 774-75.
In imposing sentence, the trial court unreasonably placed too much
weight on the wishes of the victim, and failed to account for the serious
nature of Appellee’s offenses and the protection of the public. It also relied
on factors that were either irrelevant or already accounted for by the
Guidelines. The trial court appears to have used the victim’s wishes and its
disagreement with the Board of Probation and Parole’s practices regarding
parole of sex offenders to keep Appellee in county jail, which resulted in the
trial court imposing an overly lenient sentence. I would vacate and remand
for resentencing. Hence, I respectfully dissent.
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