Com. v. Ramos, H. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HIRAM RAMOS :
:
Appellant : No. 1977 EDA 2019
Appeal from the Judgment of Sentence Entered June 11, 2019
In the Court of Common Pleas of Montgomery County Criminal Division at
No(s): CP-46-CR-0007236-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HIRAM RAMOS :
:
Appellant : No. 1978 EDA 2019
Appeal from the Judgment of Sentence Entered June 11, 2019
In the Court of Common Pleas of Montgomery County Criminal Division at
No(s): CP-46-CR-0006862-2017
BEFORE: LAZARUS, J., KING, J. and STRASSBURGER, J.*
DISSENTING MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 05,
2020
I respectfully dissent. While I agree with the learned Majority that Hiram
Ramos (Appellant) has presented a substantial question warranting our
* Retired Senior Judge assigned to the Superior Court.
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discretionary review of his sentence,1 I respectfully disagree that the trial
court did not abuse its discretion, as I would hold the consecutive nature of
Appellant’s aggregate sentence of 58 years and 5 months to 116 years and
10 months of incarceration is clearly unreasonable.
As the Majority explains, Appellant received a lengthy aggregate
sentence because the trial court chose to impose consecutive, standard range
sentences. Appellant’s convictions involved 31 properties, 13 of which were
burglarized. Of the remainder, 11 involved only loitering and prowling at night
time, a third degree misdemeanor, and the rest were attempted property
offenses. For multiple offenses committed at a single property, the sentences
merged or the trial court ordered them to run concurrently. See N.T.,
6/11/2019, at 37-51. But for each of the 31 properties, the trial court ordered
the sentences to run consecutively. Id. The imposition of these consecutive
sentences resulted in what is essentially a guaranteed life sentence for
Appellant, as he will remain in prison under the minimum term until age 92.
1 With regard to satisfying the fourth factor for this Court to consider a
challenge to the discretionary aspects of Appellant’s sentence, see Majority at
5-7, I note that this Court has recognized “the imposition of consecutive,
rather than concurrent, sentences may raise a substantial question in only the
most extreme circumstances, such as where the aggregate sentence is unduly
harsh, considering the nature of the crimes and the length of imprisonment.”
Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa. Super. 2012) (en
banc). In my view, this case presents an “extreme circumstance,” due to the
exceptional length of Appellant’s aggregate maximum sentence of nearly 117
years for property crimes in which there were no encounters with any victims,
no one was physically injured, and the victims who had items stolen were not
aware they were missing until the following day.
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As the Majority sets forth, the trial court has discretion to impose
sentences consecutively or concurrently. See Majority, at 11. “This Court's
review of the discretionary aspects of a sentence is confined by the statutory
mandates of 42 Pa.C.S. § 9781(c) and (d).” Commonwealth v. Dodge, 77
A.3d 1263, 1274 (Pa. Super. 2013) (“Dodge IV”). Subsection 9781(c)(2)
provides that this Court “shall vacate the sentence and remand the case to
the sentencing court with instructions” if we find that “the sentencing court
sentenced within the sentencing guidelines but the case involves
circumstances where the application of the guidelines would be clearly
unreasonable.” 42 Pa.C.S. § 9781(c)(2). In reviewing the record, we consider
the four factors set forth in subsection 9781(d). See Majority at 12-13.
Further, “[w]hen imposing a sentence, the sentencing court must consider the
factors set out in 42 Pa.C.S. § 9721(b), that is, the protection of the public,
gravity of offense in relation to impact on victim and community, and
rehabilitative needs of the defendant.” Commonwealth v. Coulverson, 34
A.3d 135, 144 (Pa. Super. 2011). I am cognizant, as are my learned
colleagues, of our Supreme Court’s pronouncement that “rejection of a
sentencing court’s imposition of sentence on unreasonableness grounds
[should] occur infrequently.” Majority at 12, quoting Commonwealth v.
Walls, 926 A.2d 957, 964 (Pa. 2007). Nonetheless, I believe this is one of
those “infrequent” instances.
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In one such “infrequent” case, we reviewed the trial court’s imposition
of an aggregate sentence of 18 to 90 years of incarceration after the defendant
pleaded guilty to rape, involuntary deviate sexual intercourse, robbery, and
numerous other charges. Coulverson, 34 A.3d at 138-39. Even though
Coulverson’s minimum sentences were within the standard range of the
sentencing guidelines, this Court held that his aggregate sentence was “clearly
unreasonable” under subsection 9781(c)(2). We reasoned as follows.
[T]he record reveals scant consideration of anything
other than victim impact and the court’s impulse for
retribution on the victims’ behalf. In so recognizing, we hasten
to acknowledge that the victims in this case, particularly those
stricken by the rape and its aftermath, are casualties of a social
and personal tragedy that has profoundly altered the courses of
their lives. Their losses are the product of brutal, senseless acts
and anathema to individual dignity in an ordered society.
Nevertheless, those losses do not obviate the legal and
social imperative that a defendant’s punishment must fit
not only the crime he committed, as reflected here in the
impact statements of the victims at sentencing, but also
must account for the rehabilitative need of the defendant,
and the companion interest of society reflected in sections
9721(b) and 9781(d).
These needs are not served merely because the sentencing
judge elects to commence a sentence in the standard range of the
Sentencing Guidelines. Other factors too, including the term of the
maximum sentence (regardless of the availability of statutory
maximums or consecutive sentencing), also bear on the extent to
which sentencing norms are observed and an appropriate
sentence imposed. A sentence may still be excessive regardless
of the commencement of terms of imprisonment in the standard
guidelines range if the upper end of the sentence imposes a term
unlikely to end during the defendant's natural life span or, as here,
perpetually subject to the discretion of the Board of Probation and
Parole.
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Coulverson, 34 A.3d at 148 (emphasis added). We continued as
follows.
[T]he deliberation of a court of law demands evaluation of
multiple considerations that private grief does not. Thus, while a
crime’s impact on the victim continues to be a significant
element of a sentencing judge’s consideration, the court
may not ignore the continuum of circumstances underlying
a defendant’s criminal conduct, society’s need for
rehabilitation, or the statutory factors enunciated in our
Sentencing Code on the way to imposing a maximum sentence.
Nor may it aggregate consecutive sentences merely to achieve
extended incarceration if the totality of the sentencing factors
involved … has not been considered and acknowledged. In this
regard, the trial court’s consideration here was plainly inadequate,
its explanation scant, and the resulting maximum sentence
manifestly excessive. … Although the court acknowledged the PSI
report, it did so only as a perfunctory exercise and focused its
consideration entirely on the severity of [the defendant’s] offenses
and the victims’ impact statements. Its discussion evinced no
consideration whatsoever of the dysfunction that marked [the
defendant’s] own life, his cooperation and remorse, his attempts
at reclaiming a productive role in society, or the possibility that,
with appropriate mental health treatment, he might succeed at
rehabilitation after serving a substantial term of eighteen years’
incarceration. The resulting sentence cannot be described as
“individualized” in any meaningful way. Consequently,
notwithstanding the commencement of [the defendant’s] multiple
sentences in the standard guidelines range, we find the maximum
sentence imposed “clearly unreasonable.”
Id. at 149-50 (emphasis added).
In the Dodge series of cases, this Court reviewed, in four decisions
spanning nine years, the consecutive nature of the trial court’s imposition of
sentences upon a defendant. There, the trial court originally sentenced 42-
year-old Dodge to a total sentence of 58½ to 124 years for his convictions of
40 counts of receiving stolen property, two counts of burglary, two counts of
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criminal trespass, two drug offenses, and unauthorized use of a motor vehicle.
Commonwealth v. Dodge, 859 A.2d 771 (Pa. Super. 2004) (“Dodge I”).
We vacated the sentence as clearly unreasonable. Id. Our Supreme Court
vacated Dodge I and remanded to us for consideration in light of Walls,
supra. This Court again vacated the sentence as clearly unreasonable under
subsection 9781(c)(2) because its consecutive nature amounted to a life
sentence, as Dodge would have been age 100½ under his minimum term.
Dodge II, 957 A.2d 1198, 1202 (Pa. Super. 2008). On remand, the trial court
resentenced Dodge to a similar sentence, which would have kept him in prison
past the age of 93. We likewise vacated that sentence as clearly unreasonable.
Commonwealth v. Dodge, 26 A.3d 1204 (Pa. Super. 2011) (unpublished
memorandum) (“Dodge III”). At his third sentencing, the trial court
sentenced him to consecutive sentences totaling 40 years and 7 months to 81
years and 2 months of incarceration. We affirmed, reasoning that the
sentence, while lengthy, did not amount to a life sentence since Dodge’s
minimum release date would be “in his early eighties.” Dodge IV, 77 A.3d at
1276.
Further, I am persuaded by a recent decision of this Court,
Commonwealth v. Hamman, 1730 MDA 2019, 2020 WL 5015846 (Pa.
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Super. Aug. 25, 2020) (non-precedential decision).2 In that case, Hamman
was sentenced for three burglaries, conspiracy, two firearms violations, and
criminal mischief. For two of the burglary convictions and the conspiracy
conviction, the court imposed a total maximum sentence of 40 years and ran
it consecutively to his other sentences, for an aggregate term of 21 to 75
years of incarceration. Hamman stole items such as a table, chairs,
dehumidifiers, and a log splitter, in addition to firearms. We held that the 40-
year total maximum sentence imposed for two burglaries and a conspiracy
conviction, run consecutively to the additional 35 years of maximum
sentences, was clearly unreasonable. We explained as follows.
Hamman, who was almost 38 years old on the date of
sentencing, contends that the trial court abused its discretion by
imposing a total maximum of 40 years’ imprisonment for burglary
and conspiracy in [one of the cases] and burglary in [another]
case. The court ran this total consecutively to Hamman’s other
sentences to produce an aggregate maximum of 75 years’
imprisonment, approximately 35 years longer than Hamman’s life
expectancy.6 We agree with Hamman that the court imposed an
excessive sentence.
_____
6 Pa.R.E. 201(b)(2) provides a court “may judicially notice a
fact that is not subject to reasonable dispute because it ...
can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned”.
Pennsylvania’s Standard Civil Jury Instructions refer to life
expectancy tables prepared by the National Center for
Health Statistics, U.S. Department of Health and Human
2 Unpublished non-precedential memorandum decisions of the Superior Court
filed after May 1, 2019, may be cited for their persuasive value. Pa.R.A.P.
126(b).
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Services (“DHS”). The 2017 DHS table states that a 35 year
old white man has a life expectancy of another 43.4 years,
and that a 40 year old white man has a life expectancy of
another 38.8 years. In accordance with Rule 201, we take
judicial notice of this data.
Hamman, 2020 WL 5015846, at *4. After examining Coulverson and
the Dodge series of cases, this Court explained as follows.
In our view, the 40 year maximum imposed for the []
offenses [relating to two of the burglaries], in conjunction with
Hamman’s 35 additional years of maximum sentences, is clearly
unreasonable for reasons analogous to Coulverson. As in
Coulverson, the trial court stated cursorily that it reviewed the
PSI but then imposed an exceptionally long sentence by paying
scant attention to anything other than the impact of Hamman’s
burglaries on the victims. We understand that burglary and
conspiracy are felonies, and that it is important for homeowners
to feel safe in their homes. Nevertheless, as in Coulverson, the
court went astray by focusing on vindicating the victims’ sense of
safety without considering the gravity of Hamman’s offenses, the
totality of Hamman’s background and criminal history, Hamman’s
rehabilitative needs, and whether appropriate mental health
treatment or other programs in prison will assist his rehabilitation.
Next, as in Coulverson, Hamman’s minimum sentences fell
within standard guideline ranges, but his sentences still may be
excessive, because “the[ir] upper end[s] … impose[ ] a term
unlikely to end during [his] natural life span or, as here,
perpetually subject to the discretion of the Board of Probation and
Parole.” [34 A.3d] at 148.
Hamman, 2020 WL 5015846, at *7. This Court thus held Hamman’s
sentences for two of the burglaries and the conspiracy conviction were clearly
unreasonable. Id. at *8.
Instantly, Appellant was 34 years old at the time of sentencing and
under the trial court’s minimum sentence, will remain in prison until at least
age 92. I acknowledge that the trial court took account of the sentencing
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guidelines, had an opportunity to observe Appellant, and implicitly took
Appellant’s rehabilitative needs into account with its review of the presentence
investigation (PSI) report. See Majority at 8-10. However, the trial court
referred perfunctorily to the PSI report, and made no mention of its inclusion
of information on Appellant’s rehabilitative needs. The court focused on
Appellant’s lack of remorse in the PSI report, yet failed to acknowledge his
allocution, during which he apologized repeatedly. N.T., 6/11/2019, at 34, 36.
Nor did the trial court’s discussion evince consideration of the testimony at
sentencing describing Appellant’s tumultuous upbringing without a mother or
father as a contributing factor to his crimes. See N.T., 6/11/2019, at 11-13;
see also Coulverson, 34 A.3d at 150.
The trial court concentrated almost exclusively on the impact of the
crimes on the victims and community, stressing that a “person’s home is their
castle” and that their sense of security had been taken from them. Id. at 9-
10, quoting N.T., 6/11/2019, at 35-36. The court did not engage in a
meaningful analysis of the gravity of the offenses. It specifically indicated that
it was imposing consecutive sentences to account for the impact on each of
the 31 victims. Yet, the court made no distinction between the victims who
were at home asleep when Appellant broke into their residences, and the
victims of Appellant’s loitering outside their homes. The court also failed to
acknowledge that none of crimes involved any encounters with any victims.
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As in Coulverson and Hamman, the trial court here “imposed an
exceptionally long sentence by paying scant attention to anything other than
the impact” of Appellant’s crimes on the victims. See Hamman, 2020 WL
5015846, at *7. Likewise, as in Coulverson and Hamman, I recognize that
Appellant committed multiple felonies and understand “that it is important for
homeowners to feel safe in their homes,” but believe “the court went astray
by focusing on vindicating the victims’ sense of safety without considering the
gravity of [Appellant’s] offenses, the totality of [his] background and criminal
history, [his] rehabilitative needs, and whether appropriate mental health
treatment or other programs in prison will assist his rehabilitation.” See
Hamman, 2020 WL 5015846, at *7.
Further, as in Dodge II, Appellant’s life sentence for property crimes is
clearly unreasonable given the particular circumstances of the offenses
involved. The trial court concluded that Appellant’s multiple offenses
warranted a lengthy period of incarceration, but “did not acknowledge that its
sentence essentially guarantees life imprisonment for Appellant.” Dodge II,
957 A.2d at 1202. It cannot be reasonably questioned that age 92 is beyond
Appellant’s life expectancy. See Hamman, 2020 WL 5015846, at *4 n.6. The
upper end of Appellant’s term is more than 70 years longer than his life
expectancy. See id. While his offenses undoubtedly are serious and upset his
victims and the community, the gravity of his offenses does not warrant a life
sentence where there were no encounters with any victims, no one was
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physically injured, and the victims who had items stolen were not even aware
their items were missing until the following day. See Dodge II, 957 A.3d at
1278 (holding Dodge “could not be sentenced to the equivalent of life
imprisonment for property crimes”).
Accordingly, I would conclude that the trial court’s exercise of discretion
in imposing a life sentence was clearly unreasonable within the meaning of
§ 9781(c)(2). To be clear, I would hold the consecutive nature of the
sentences, and not the individual sentence imposed upon each offense,
constituted an abuse of discretion. Thus, I would vacate the judgments of
sentence and remand for resentencing.
For these reasons, I respectfully dissent.
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