Commonwealth v. Dodge

77 A.3d 1263

2013 PA Super 253

COMMONWEALTH of Pennsylvania, Appellee

v.Timothy Mark DODGE, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Timothy Mark Dodge, Appellant.

Superior Court of Pennsylvania.

Submitted Dec. 4, 2012.

Filed Sept. 11, 2013.

Reargument Denied Nov. 21, 2013.

Helen A. Stolinas, Towanda, for appellant.

Francis D. Rineer, Jr., Assistant District Attorney, Towanda, for Commonwealth, appellee.

BEFORE: BOWES, OLSON, and WECHT, JJ.

OPINION BY BOWES, J.:

Timothy Mark Dodge appeals from the judgment of sentence of forty years, seven months to eighty-one years and two months incarceration following his re-sentencingafter this Court vacated his sentence on two prior occasions. After considerable review, we affirm.

This case is before this Court for the fourth time, after Appellant's third sentencing. A jury convicted Appellant of forty counts of receiving stolen property,¹ two counts of burglary, two counts of criminal trespass, and one count each of possession of a small amount of marijuana, possession of drug paraphernalia, and unauthorized use of a motor vehicle. These convictions arose after Pennsylvania State Police attempted to interview Appellant at his residence about an automobile accident. When Appellant exited the door, police detected a strong odor of marijuana, and Appellant refused police entry into the home, a trailer. Police secured a search warrant for Appellant's home and eventually his car. Inside Appellant's home, police retrieved six full jewelry boxes, some concealed in cupboards. Police also found two single-barrel shotguns and two compound hunting bows. Numerous items of jewelry were also located in plastic Ziploc bags. In addition, police discovered lock-picking tools. Other items that were recovered included rifle and bow cases, a machete, a bb gun, a pellet gun, an air rifle, a taser, televisions and VCRs, various statues, prescription drugs prescribed to others, marijuana seeds, and growing lights.

Appellant subsequently fled the jurisdiction and police arrested him in Lancaster County, Pennsylvania in February 2000 while he was driving a stolen vehicle. After the litigation of omnibus pre-trial motions, Appellant proceeded to a jury trial. The jury convicted Appellant of the aforementioned crimes. The trial court originally sentenced Appellant to fifty-eight and one-half to 124 years imprisonment. Appellant appealed, and in a published decision, with one judge dissenting, this Court vacated that sentence. Commonwealth v. Dodge, 859 A.2d 771 (Pa.Super.2004) (“Dodge I ”), vacated,594 Pa. 345, 935 A.2d 1290 (2007). The Commonwealth appealed, and our Supreme Court vacated this Court's decision and returned the matter to this Court for reconsideration in light of Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957 (Pa.2007). Commonwealth v. Dodge, 594 Pa. 345, 935 A.2d 1290 (2007). After remand, in a published decision with one judge dissenting, this Court again vacated the sentence and remanded for resentencing. Commonwealth v. Dodge, 957 A.2d 1198 (Pa.Super.2008) (“Dodge II ”). Our Supreme Court denied allowance of appeal.²Commonwealth v. Dodge, 602 Pa. 662, 980 A.2d 605 (2009).

Upon remand, the original trial judge was no longer serving on the bench. Accordingly, a new judge was assigned the case. The court imposed a sentence of fifty-one years, four months and thirty days to 122 years.³ Appellant filed a post-sentence motion, which the court denied except as to an issue pertaining to restitution. On appeal, this Court, in an unpublished decision, vacated the sentence. Commonwealth v. Dodge, 26 A.3d 1204, 1207 (Pa.Super.2011). After remand, Appellant sought recusal from the sentencing judge. The court denied the recusal motion and re-sentenced Appellant to forty years, seven months to eighty-one years and two months imprisonment. Specifically, the court imposed consecutive sentences of one to two years on the thirty-seven felony counts of receiving stolen property, two to four years and one to two years for the two burglary convictions, six to twelve months for the first-degree misdemeanor receiving stolen property, and one to two months for the unauthorized use of a motor vehicle. The court did not subject Appellant to a prison or probation sentence for the drug offenses and ordered him to pay fines. The consecutive sentences were at the low end of the standard range of the sentencing guidelines. Appellant again filed a post-sentence motion. The sentencing court denied the motion, and this timely appeal ensued.

The sentencing court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant complied, and the trial court authored its Pa.R.A.P. 1925(a) decision. The matter is now ready for this Court's consideration. Appellant raises four interrelated discretionary sentencing issues.

I. Whether the sentencing [c]ourt erred in disregarding factors mandated under the Sentencing Code, such as rehabilitation and the nature and circumstances of the offenses?

II. Whether the sentencing court relied on impermissible factors in imposing sentence?

III. Whether the sentence was arbitrary due to consecutive sentences for numerous separate felony counts of [r]eceiving [s]tolen [p]roperty?

IV. Whether the Sentencing Court ignored this Court's reasoned opinion in two prior cases by again sentencing the defendant to a virtual life term?

Appellant's brief at 7.

Each of Appellant's issues implicates the discretionary aspects of his sentence. “[T]here is no absolute right to appeal when challenging the discretionary aspect of a sentence.” Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super.2010); 42 Pa.C.S. § 9781(b); but seePa. Const. Art. V § 9 (“there shall also be a right of appeal from a court of record ... to an appellate court”).⁴ Rather, an “[a]ppeal is permitted only after this Court determines that there is a substantial question that the sentence was not appropriate under the sentencing code.” Crump, supra at 1282.

A defendant presents a substantial question when he “sets forth a plausible argument that the sentence violates a provision of the sentencing code or is contrary to the fundamental norms of the sentencing process.” In order to properly present a discretionary sentencingclaim, a defendant is required to preserve the issue in either a post-sentence motion or at sentencing and in a court-ordered Pa.R.A.P. 1925(b) concise statement. Further, on appeal, a defendant “must provide a separate statement specifying where the sentence falls in the sentencing guidelines, what provision of the sentencing code has been violated, what fundamental norm the sentence violates, and the manner in which it violates the norm.”

Commonwealth v. Naranjo, 53 A.3d 66, 72 (Pa.Super.2012) (citations omitted).

Appellant preserved his issues via his post-sentence motion, Pa.R.A.P. 1925(b) statement, and by providing a Pa.R.A.P. 2119(f) statement. Appellant relies on Dodge II, our Supreme Court's decision in Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002) (plurality), and Commonwealth v. Mastromarino, 2 A.3d 581 (Pa.Super.2010), in asserting that the imposition of consecutive sentences in this instance, i.e., based on the criminal...