A blog of the Philadelphia Bar Association’s Criminal Justice Section

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By Burt Rose

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The Superior Court of Pennsylvania has decided a sentencing appeal in the case of COMMONWEALTH of Pennsylvania v. Timothy Mark DODGE, Appellant, 2013 WL 4829286, 2013 PA Super 253 (9/11/13).This is the fourth time this case, on appeal from the Court of Common Pleas of Bradford County, has been before this court.

A jury had convicted the Appellant of forty counts of receiving stolen property, 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. The lower court eventually re-sentenced Appellant to 40 years, seven months to 81 years and two months imprisonment. Specifically, the court imposed consecutive sentences of one to two years on the 37felony counts of receiving stolen property, two to four years and one to two years for the 2 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 consecutive sentences were at the low end of the standard range of the sentencing guidelines.

The Superior Court declared that a defendant may raise a substantial question where he receives consecutive sentences within the guideline ranges if the case involves circumstances where the application of the guidelines would be clearly unreasonable, resulting in an excessive sentence; however, a bald claim of excessiveness due to the consecutive nature of a sentence will not raise a substantial question. 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.

In a footnote, the Court stated that “Careful litigants should note that arguments that the sentencing court failed to consider the factors proffered in 42 Pa.C .S. § 9721 does present a substantial question whereas a statement that the court failed to consider facts of record, though necessarily encompassing the factors of § 9721, has been rejected.”

The Court found that the Appellant’s claim that the sentencing court in this case had disregarded rehabilitation and the nature and circumstances of the offense in handing down its sentence presented a substantial question for review.

This Appellant’s position was that the imposition of consecutive sentences in this matter was disproportionate to his property crimes. The Court had to decide whether the decision to sentence consecutively raised the aggregate sentence to an excessive level in light of the criminal conduct at issue in this case. The court stated that standard range consecutive sentences are not clearly unreasonable where the trial court relies on the defendant’s prior history and a finding that he was a high risk to re-offend. The sentencing court properly relied on the Appellant’s lengthy criminal background as well as the sheer number of victims involved in handing down its sentence. Consecutive low-end standard range sentences for a career criminal who had victimized more than forty people, resulting in his incarceration past the age of eighty, were not “clearly unreasonable”.

Judge Bowes wrote the Opinion, joined by Judge Olson. Judge Wecht dissented on the ground that this was a virtual life sentence for multiple non-violent property offenses.

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