Commonwealth v. McIntosh

¶1CONCURRING AND DISSENTING OPINION BY

¶2¶ 1 While I agree with the Majority’s disposition of the Commonwealth’s first issue, I cannot agree with the Majority’s disposition as to the Commonwealth’s second issue, nor the ultimate granting of relief. Thus, I dissent from that portion of the Majority’s Opinion.

¶3¶2 Before addressing the basis of my Dissent from the Majority’s disposition, I must state that I agree with the Majority to the extent that they find an abuse of sentencing discretion. Indeed, I would go further and argue that the court further abused its parole authority. Given the crime to which Appellee pled nolo confed-ere, the sentence of 11$ to 23 months seems to have been inordinately “light,” even if Appellant were to serve the entire sentence in the county jail. Moreover, in my opinion, this sentence was not justified by the explanations provided by the court. As such, in my opinion, the principle enunciated in Commonwealth v. Walls, 846 A.2d 152, (Pa.Super.2004), would compel vacation of the instant sentence. However, if a sentence of 11$ to 23 months appears inadequate for the crime committed, then the fact that Appellee was immediately paroled to house arrest, limiting his time in county prison to one day, seems unconscionable. Unfortunately, the exercise of parole authority is a matter that has not been seen as fit for appellate review leaving that decision immune from disruption, which brings us back to the matter that was actually appealed and is within our purview.

¶4¶3 The above viewpoint on Appellee’s sentence aside, I believe that in the present appeal we are constrained to affirm the judgment of sentence because the Commonwealth has either badly comprehended the present case and misdirected its argument toward a sentence that was not in fact imposed, or the Commonwealth has made a tactical decision to challenge the net effect of the sentence imposed and recast it into its practical effect rather than to attack its legal character. As the Majority’s very fine analysis of the Com*525monwealth’s first issue reveals, Appellee was sentenced to a term of imprisonment of ll/£ to 28 months’ imprisonment. Despite the contentions and arguments of the Commonwealth, Appellee was not sentenced to house arrest and probation.17 The Commonwealth was certainly free to contend, as they did, that Appellee was not sentenced to house arrest and probation and to build its two arguments around this premise. They were also free to play it safe and argue in the alternative. However, having argued that Appellee was sentenced to house arrest and probation, and having failed to argue in the alternative, the Commonwealth has set the parameters of our appellate review and I believe we are bound by the parameters so set.

¶5¶ 4 Before delving into the various reasons why I believe we are precluded from granting relief on the basis or bases relied upon by the Majority, let me first say that while I do not believe, that in determining the merit of an issue properly raised, we are limited by the exact argument offered by the appellant, I do believe we are limited to the issues properly raised by the parties.18 As I understand the strictures of appellate review, an “issue” is essentially the specific legal/factual basis for the granting of relief. In contrast, the argument is the detailed rationale asserting why the legal basis in question compels the granting of relief by the appellate court. Thus, while we may not be constrained to the exact argument proffered by the parties in determining whether a legal issue has merit, we are constrained by the legal basis properly set forth by the appealing party.

¶6¶ 5 In raising an issue, our law indicates that an issue should be set forth with sufficient specificity as to understand the contention of error being asserted. For instance, consider a contention that the court abused its discretion in failing to admit a hearsay statement. Standing alone, this issue would likely be waived for failing to assert a sufficient basis for relief as the stated basis is non-specific. However, a contention that the court erred in failing to admit a hearsay statement because the statement was a statement against interest would suffice. Nevertheless, in the above example, the fact that a litigant argued that the court erred in failing to admit a hearsay statement because the statement was a statement against interest would not entitle us to reverse the court’s decision because we concluded that the statement was an excited utterance after concluding that the statement was not a statement against interest. That is, it would be incumbent upon the appellant to assert each hearsay exception he believed applied. The mere recitation of one exception would not provide us license to review the entire cata-logue of hearsay exceptions to see if one applied and to then grant relief after finding one that had merit.

¶7¶ 6 Notwithstanding the above concept of the term “issue,” there are times where an issue raised is based upon a certain factual contention that is so essential to the argument that the factual contention must be perceived as defining the issue *526before the Court as much as does the legal concept in question. For instance, if the tables were turned and had a criminal defendant been given a five to 10 year sentence but argued on appeal that the court’s sentence of 20 to 40 years’ imprisonment was excessive and an abuse of discretion, would we overlook the error and review the propriety of the five to 10 year sentence, or would we find this argument without merit as being inherently flawed as a result of the faulty premise contained within the argument? I believe the correct disposition would be the latter option and I believe that stance must be taken here.

¶8¶ 7 Based upon the above principles, at a fundamental level, any review of the propriety of a sentence of 11$ to 23 months’ imprisonment should be deemed improper due to the simple fact that the Commonwealth never argued that the imposition of a sentence of 11$ to 23 months constituted an abuse of discretion. The Commonwealth quite plainly raised an issue to this Court, and simply stated, it was not that a sentence of 11$ to 23 months’ imprisonment was excessively lenient and was the result of an abuse of discretion. Rather, the issue raised and the argument presented was that the sentencing court’s sentence of house arrest and probation constituted an abuse of discretion. The Statement of Questions Presented reads:

Did the lower court abuse its discretion by unreasonably deviating from the Sentencing Guidelines by imposing an excessively lenient sentence of house arrest and probation for the crime of sexual assault, a second degree felony, where the guidelines even in the mitigated range recommended incarceration in a state prison, and the court provided inadequate and improper reasons for its sentence?

¶9Commonwealth’s Brief at 5 (emphasis added). The heading on the argument section correlating to the Commonwealth’s second issue reads:

The sentencing court abused its discretion by unreasonably deviating from the sentencing guidelines to impose a sentence of house arrest and probation for felony sexual assault where the court failed to even acknowledge on the record that it was deviating from the guidelines and its subsequent opinion makes clear that the sentence was based upon several impermissible factors.

¶10Id.(emphasis added). In case the point requires more support, the opening sentence in the Commonwealth’s Pa.R.A.P. 2119(f) statement of reasons relied upon for review of discretionary aspects of sentencing states:

Even aside from the illegality of defendant’s sentence, the sentencing court abused its discretion by imposing an excessively lenient sentence of house arrest and probation for a second degree felony sexual assault.

¶11Commonwealth’s Brief at 17.

¶12¶ 8 Thus, in numerous places where the Rules of Appellate Procedure indicate that an issue is to be defined, the Commonwealth has steadfastly argued that the court abused its discretion in imposing a sentence of house arrest and probation. This resoluteness of position should bar a review of the sentence actually imposed, a sentence of 11$ to 23 months’ imprisonment, as the Commonwealth has failed to explain how a sentence of 11$ to 23 months’ imprisonment constituted an abuse of discretion. Since the Commonwealth has not asserted that the sentence actually imposed was the result of an abuse of discretion, reviewing the 11$ to 23 month sentence for an abuse of discretion results from this Court’s overstepping *527its bounds and addressing an issue not before us.

¶13¶ 9 The Commonwealth’s error or tactical choice in framing its issue and argument has not escaped the Majority. Indeed, the Majority acknowledges that the Commonwealth’s argument erroneously “centers on its characterization of McIntosh’s sentence as one of house arrest and probation, when in fact the sentence imposed, ... was imprisonment of lijé to 23 months, plus probation, and then immediate parole.” Majority Opinion at 520. In contrast to my position, the Majority deferentially overlooks the fact that the Commonwealth has misdirected its argument and, indeed, vacates the trial court’s sentence by culling and developing an argument from the Commonwealth’s Brief that should, with fair application of the rules of issue preservation, have been found waived on any number of several grounds. I simply cannot join with the Majority in “saving” the Commonwealth’s appeal in this fashion, even if there were issues not raised or argued that have underlying merit.

¶14¶ 10 Although the Majority appears to concede that the Commonwealth has misdirected its argument to a sentence that was not in fact imposed, the Majority concludes that two claims were “suitably asserted.” Majority Opinion at 520. These two claims are: (1) that the sentencing court failed to place on the record its reasons for departing from the sentencing guidelines, and (2) that the court relied upon impermissible factors in imposing the sentence in question.19Id.For the reasons that follow, neither of these two claims should be deemed a matter that was properly raised to this Court.

¶15¶ 11 In the first instance, the contention that the Commonwealth raised, as an independent basis for relief, a claim that the sentencing court failed to place on the record its reasons for departing from the sentencing guidelines or a claim that the sentencing court relied upon impermissible factors in imposing sentence should be dispelled by reviewing the statement of questions presented quoted above. The statement of question presented does not mention that the court relied upon impermissible factors, indeed the term “imper*528missible factors” can be nowhere found. Similarly, the statement of questions does not assert that the court failed to acknowledge the guideline ranges and/or state its reasons for departing from the guidelines on the record. The issue as framed in the statement of questions presented clearly asserts that the court abused its discretion in imposing an excessively lenient sentence of house arrest and probation and that the court provided inadequate reasons for imposing a sentence of house arrest and probation. Pa.R.A.P. 2116 reads:

Rule 2116. Statement of Questions Involved

(a) General rule. The statement of the questions involved must state the question or questions in the briefest and most general terms, without names, dates, amounts or particulars of any kind. It should not ordinarily exceed 15 lines, must never exceed one page, and must always be on a separate page, without any other matter appearing thereon. This rule is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby.

¶16(Emphasis added). The Majority overlooks the fact that these two claims were not included in the statement of questions involved and finds them suitably asserted because they were thrown, kitchen-sink style, in the Commonwealth’s argument20 supporting its primary assertion which, of course, was that the court abused its discretion in imposing an excessively lenient sentence of house arrest and probation. As such, the “claim” the Majority relies upon in proceeding through the door of judicial review, even if explicitly or implicitly argued in the argument section of the Commonwealth’s Brief, should be found inadequately raised in the Commonwealth’s Brief and, therefore, not properly before us.

¶17¶ 12 Aside from the above defect, a greater obstacle is found in the fact that neither of these two claims was raised to the sentencing court below. The Majority does not contend that the two claims were raised below, and for good reason. Neither can be found to have been independently raised in the Commonwealth’s motion for reconsideration of sentence, nor was either asserted orally at sentencing after sentence was imposed. The Commonwealth’s motion for reconsideration is an expansive document of some 15 pages that contains several pages of factual recap followed by several pages of legal argument. The document does not specifically set forth an assertion of the individual claims of error committed by the court in imposing sentence, although, like its brief to this court, the argument section begins with the assertion that the sentencing court’s sentence “is excessively lenient and unreasonably deviated from the sentencing guidelines.” Commonwealth’s Motion for Reconsideration of Sentence, at 11. This introductory sentence is then followed with several pages of argument supporting this general assertion of error. Nowhere in this document does the Commonwealth assert *529that the court erred in relying upon impermissible factors in sentencing or erred in deviating from the guidelines without stating its reasons on the record for the deviation. Where an issue argued on appeal is not raised orally at sentencing or set forth in a motion for reconsideration of sentence, it must be deemed waived on appeal. See Commonwealth v. Lawson, 437 Pa.Super. 521, 650 A.2d 876 (1994) (claim that the court, through the sentence imposed, punished him for his “intransigence” in proceeding to trial was found waived for failing to include it in a motion to reconsider sentence.). As such, the only issue preserved for appellate review in the post-sentence motion, particularly with respect to the discretionary aspects of sentencing, is that the court abused its discretion in imposing an excessively lenient sentence.

¶18¶ 13 As a final point on waiver, I would find that the two issues/claims the Majority contends have been properly preserved should be found waived for failure to include them in the Commonwealth’s Rule 1925 statement. The Commonwealth’s Rule 1925 statement states quite succinctly:

Did the lower court err and abuse its discretion in unreasonably sentencing the defendant, outside the guidelines, for the reasons stated in the Commonwealth’s Motion for Reconsideration of Sentence filed March 4, 2005?

¶19¶ 14 I would contend that the fact that the issues were not set forth specifically would be a sufficient basis for finding a violation of Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998), and its progeny. That is, I would find that a litigant cannot incorporate by referring to a 15 page document. Allowing such a satisfaction of Rule 1925 does not pinpoint the issues that the Commonwealth intends to pursue on appeal, which is the primary reason for the rule’s existence. Nevertheless, even if we allow the inclusion by reference to the motion to reconsider sentence, as discussed above, the issues the Majority finds sufficiently raised on appeal were not set forth in the motion for reconsideration. Thus, neither of the issues in question were included in the Commonwealth’s Rule 1925 statement.

¶20¶ 15 No mention is made of the Commonwealth’s 1925 statement in the Majority’s Opinion. I would surmise that the Majority treats the 1925/Lord issue as a non-issue due to the fact that even though a 1925 statement was filed, the court never ruled the Commonwealth to file a 1925 statement. There is a very good reason that the court did not rule the Commonwealth to file a 1925 statement. The Commonwealth, in preemptive fashion, voluntarily filed a 1925 statement the very day it filed its notice of appeal. The effect of this “early filing” was predictable, the court, having received a 1925 statement did not bother to rule the Commonwealth to file a document it had already filed.

¶21¶ 16 I realize that Pa.R.A.P 1925 and the cases interpreting and/or applying the rule hinge waiver for non-compliance upon a party being ruled to file the statement. See Forest Highlands Cmty. Ass’n v. Hammer, 879 A.2d 223 (Pa.Super.2005). Nevertheless, I would hold that where a party preemptively files a 1925 statement, the same waiver rules apply and that a party is bound to the issues contained in that statement in the same fashion as one who is ruled to file a 1925 statement. The reason for my stance is illustrated by the present case. As the court did here, it is very likely that a court that receives a 1925 statement prior to ruling the appellant to file such a statement will not bother to do so. If waiver hinges upon being ruled to file the statement in these cases, cagey litigants who “jump the gun” will be *530freed from the strictures facing other litigants on appeal. To the extent the majority finds the waiver rules of Lordinapplicable here, that is precisely what the net effect will be. Had the Commonwealth filed the 1925 statement it did in response to being ruled to file that statement, the Commonwealth would have been limited to the issues contained therein. Here, the Commonwealth was essentially free to expand upon the issues set forth in its 1925 statement without fear of a finding of waiver. Indeed, the Commonwealth exploited this circumstance here, as the first issue briefed is not set forth in its 1925 statement. The primary rationale for a strict rule of waiver regarding rule 1925 statements is to assure that the trial court has the opportunity to address the claims intended to be asserted on appeal in a written opinion. The trial court’s viewpoint on the issue is deemed important in the appellate process. Here, the court did not have an opportunity to weigh in on the issues in question because they were not included in the Commonwealth’s 1925 statement. I do not believe litigants should be allowed to skirt the Lordwaiver rules by preemptively filing a 1925 statement and I would conclude that only the single issue set forth in the Commonwealth’s 1925 statement has been preserved for appellate review.

¶22¶ 17 Waiver issues aside, and returning to the merits of the Majority’s disposition, I believe the Majority’s ultimate disposition is not based upon the issues/claims they find the Commonwealth suitably asserted as error. While, in moving forward to a review of the sentence on the merits, the Majority ostensibly relies upon the contention that the court failed to state its reasons for departing from the guidelines and/or also relied upon impermissible factors in imposing sentence, it is clear that once the Majority conducts that review on the merits, it rejects the sentence, not upon one of those two grounds, but upon its conclusion that the factors cited do not support the sentence imposed. That is, it bases its ultimate disposition upon an issue other than the one cited as having been suitably asserted. This fact can be deduced from the fact that neither of these two bases would justify the review undertaken by the Majority, nor the relief the Majority ultimately grants.

¶23¶ 18 With respect to a failure to state reasons on the record for deviating from the guidelines, the obvious reason for requiring the court to state its reasons for departing from the guidelines is so that the decision to depart can be assessed for its reasonableness thereby allowing a determination as to whether or not the court abused its discretion.21 Thus, if the court failed to state its reasons on the record, it would not entitle this Court to assess the reasonableness of the sentence and reject it, as the Majority does here. Rather, a failure to state reasons on the record would compel us to remand the case to the sentencing court so that either a new sentence within the guidelines could be imposed or so that the court could enunciate its reasons for departing from the guidelines should it opt to once again depart from the guidelines. Only then would this Court be in a position to determine the overall reasonableness of the sentence.

¶24*531¶ 19 The same logic suggests that should we find that the court relied upon an impermissible factor in sentencing a defendant, the appropriate remedy would be to remand for imposition of a new sentence without regard to the impermissible factor as it would be unclear what sentence would be imposed once the court removed the impermissible factor from consideration. Only the contention that the court’s weighing of the various factors led to an unreasonable sentence, i.e., one that was either too harsh or too lenient, would allow the de novo assessment of a suitable sentence as was' done here.

¶25¶ 20 The above point aside, a review of the Majority Opinion reveals that the Majority does not reject the sentence on the basis that an impermissible factor was relied upon. Indeed, in its discussion of the matter in its Opinion, the Majority cites at most, one supposedly “impermissible factor” the sentencing court relied upon in imposing sentence, the sentencing court’s comparison of Appellee’s case to other similar cases from Philadelphia County. Majority Opinion at 522. Once the Majority covers this impermissible factor, the Majority then embarks on an overall review of the sentence for its reasonableness.

¶26¶ 21 That the Majority actually delves beyond the prospect of impermissible factors in conducting its review can be seen by the Majority’s discussion after this one cited factor. After indicating that the court’s analogizing to other cases was found unreasonable in Commonwealth v. Celestin, 825 A.2d 670 (Pa.Super.2003), the Majority moves on to reject as inaccurate the various factors cited by the court to support its sentence or disagrees that the factors cited justify the sentence imposed. The factors rejected include the sentencing court’s reliance upon incarceration creating a hardship to Appellee’s family, Majority Opinion at 522, (the Majority concludes that Appellee was currently unemployed), and the sentencing court’s characterization of the criminal episode as resulting from poor judgment or a mistake of judgment. Id.The Majority further disagrees with the court’s assertion that the greatest loss from this episode was the destruction of a friendship between the two families and notes, with apparent disapproval, the court’s odd and inordinately deferential treatment to Appellee. Id. at 523. The Majority does not contend that any of these factors are impermissible. It merely disagrees with the sentencing court that these factors justify the substantial departure that took place here.

¶27¶ 22 While I would not disagree with the Majority’s assessments of the factors the court relied upon in sentencing Appellee, in rejecting the sentence, the Majority in fact concludes that the sentence imposed, iVk to 23 months’ imprisonment, was an unreasonable sentence in light of the circumstances presented, an issue/claim that was not raised and not argued by the Commonwealth and an issue other than the one cited by the Majority as having been suitably asserted. Thus, when one considers the whole of the Majority’s decision, it is clear that they have essentially latched upon one supposedly raised claim and used it as an avenue to conduct a review of the sentence in toto, a review that goes far beyond the specific issue they contend was adequately raised. Thus, in practical effect, the Majority simply uses this claim of error to justify its review of the sentence. However, once the Majority passes through the door of appellate review, its scope of review far exceeds the basis cited.

¶28¶ 23 However, the fact that Majority strays beyond the strictures of the issue deemed properly raised is not the only defect in the Majority’s analysis, as it is *532far from clear that the one cited impermissible factor, referencing other similar cases, actually constitutes an “impermissible” sentencing factor or that the court actually relied upon this factor in imposing its sentence.

¶29¶ 24 It should be noted that the sentencing court’s reference to other cases was not made contemporaneously with the imposition of sentence, but rather was offered as justification in the trial court’s opinion offered in response to the Commonwealth’s appeal.22 Thus, it is somewhat dubious' to assert that this was a factor the court relied upon in imposing sentence. If the court was thinking of this factor when imposing sentence, the court did not mention it and we have no way of knowing that this was a factor relied upon in imposing sentence. In contrast, if the court offered such a comparison after the fact in arguing that the sentence was a fair exercise of judicial discretion, then this is an entirely different matter. We may disagree with the ultimate judgment of the court, and the arguments supporting its sentence, but it cannot be said that the court relied upon this factor in imposing the sentence under review.

¶30¶ 25 As for whether the court’s reference to other cases in Philadelphia County, where a similar sentence was imposed after plea agreements, constitutes an impermissible factor, the majority cites Cel-estin, another case where a sentence well below the guidelines was imposed, to disapprove of this practice. Celestinfound other cases “irrelevant” to the decision to impose a sentence beneath the guideline ranges and ealls comparison to other cases “unreasonable,” in part, because the sentencing court cannot know all the considerations and factors that went into a negotiated plea in another case. While it may seem like I am splitting hairs, an “irrelevant” factor is not the same as an impermissible factor. The term impermissible factor connotes a factor that the sentencing court is prohibited from considering, such as race, sex, religious affiliation or electing a trial over a plea. Therefore, an unreasonable weighing of a legitimate sentencing factor, or even the incorrect belief that an irrelevant factor is relevant to the case at hand, is something completely different than imposing a sentence based upon an impermissible factor. In the present case, there is no indication that Appellee’s sentence resulted from reliance upon an impermissible factor.

¶31¶ 26 In summation, while I agree with the Majority that the court imposed an unreasonably lenient sentence and unreasonably deviated from the sentencing guidelines, I disagree with the Majority that this matter has been properly preserved for appellate review. Rather, I find that the single issue raised with respect to the discretionary aspects of sentencing is misdirected toward a sentence that was not imposed, relegating this issue fundamentally flawed and, as argued, without merit. I further find that the Majority has conducted a review that goes far beyond the issue raised. Thus, I dissent. I would affirm the judgment of sentence.