COURT IGNORED SENTENCING FACTORS AND ENHANCEMENTS WHEN IT IMPOSED SENTENCE WELL BELOW THE APPLICABLE SENTENCING GUIDELINES
The PA Superior Court has decided the case of Commonwealth v. Shull, No. 1607 MDA 2015 (September 13, 2016), holding that it was a manifest abuse of discretion and unreasonable for the trial Court not to apply the Deadly Weapon (Used) enhancement and to fashion a sentence that failed to consider the guideline range and the appropriate factors to be considered when imposing a sentence.
FACTS
Defendant Shull was 17 years old when he and Sepich decided to drive around the State College area one evening. As part of their evening activities, Shull and Sepich smoked marijuana and, at one point, stopped at a Walmart where Shull shoplifted a pellet gun. Although the pellet gun resembled an actual firearm, it was inoperable because the CO2 cartridge was missing.
After stealing the gun, Shull and Sepich drove past a lone female who was walking to her apartment. Shull got out of the vehicle and confronted the female in a rather isolated area. Shull knocked her down after she refused to give him money and her purse. He began to drag her by her hair during which time she saw the pellet gun in his hand and his finger on the trigger. The victim screamed and her screams alerted police nearby who responded and were able to chase Shull to a nearby vehicle wherein Sepich was seated as a passenger. Shull entered the vehicle and, upon approach, police observed the pellet gun in the vehicle on the passenger floorboard. Shull and Sepich were arrested and the the female victim was transported to the arrest scene where she identified Shull as her attacker.
Shull was charged with one count of first- degree felony Robbery—Fear of Serious Bodily Injury and other offenses. Shull subsequently filed a Petition to Transfer Criminal Proceedings to Juvenile Court. After a hearing, the court entered an order denying Shull’s petition, voicing concerns about Shull’s failed rehabilitation efforts to-date and reasoning that a robbery, committed by an armed perpetrator, posed a serious threat to both the victim, individually, and the public, as it had a harmful impact on the community’s sense of safety.
Shull filed a Motion to Disqualify the Centre County District Attorney and raised other issues on appeal not germane to this particular blog.
The trial court presided as finder of fact in Shull’s waiver trial, and, at the conclusion of evidence, it convicted Shull of all charges. Specifically, the court made a finding of fact that Shull possessed a deadly weapon during the commission of his crimes. Accordingly, the trial court made a determination that the Deadly Weapon Possession sentencing enhancement applied under the facts proven at trial, but refused to apply the more severe Deadly Weapon Used enhancement sought by the Commonwealth. The court applied the enhancement matrix as its sentencing starting point and, from there, deviated downward to issue a mitigated range sentence of 29 to 59 months’ incarceration, to be followed by 5 years’ probation on the count of Robbery, with concurrent sentences entered on the remaining charges. Furthermore, the court insisted and ruled, over Commonwealth objection, that Shull was to serve his sentence in a county correctional facility.
The Commonwealth filed a timely Motion to Modify Sentence seeking application of the Deadly Weapon Used sentencing enhancement and a standard range sentence based upon that sentencing matrix. The Commonwealth also contested county placement for Shull, insisting that he serve a state sentence in a state correctional facility.
The trial court conducted a hearing on the Commonwealth’s post-sentence motion and ultimately withdrew its previous sentence in favor of an even more lenient sentence of incarceration of 11 1⁄2 to 24 months, less one day, in a county correctional facility, provided Shull agree to waive his right to parole and serve the full 24 months, less one day. The court explained that it was reducing Shull’s sentence in order to avoid a statutory provision that conditions county placement for a maximum sentence of between two and five years’ incarceration on a district attorney’s prior consent. The Commonwealth did not consent to county placement and insisted the crime warranted state placement.
ISSUE
WHETHER THE LOWER COURT ABUSED ITS DISCRETION BY REFUSING TO APPLY THE DEADLY WEAPON USED ENHANCEMENT SINCE THE DEFENDANT’S USE OF THE WEAPON WAS UNDISPUTED?
HOLDING
The trial court’s rejection of the Deadly Weapon Used enhancement was manifestly unreasonable. Sentence vacated and the case remanded for re-sentencing and the trial court is directed to acknowledge and apply the proper guideline range before exercising its sentencing discretion.
The Commonwealth argued that the trial court abused its sentencing discretion when it applied the Deadly Weapon Possessed enhancement rather than the Deadly Weapon Used enhancement in setting Shull’s sentence. At the sentencing hearing, the trial court determined that Shull possessed but did not “use” the firearm. The Commonwealth, however, filed a post-sentence motion asserting that evidence establishing Shull’s open display of the gun while attacking the victim supported application of the more severe Deadly Weapon Used enhancement.
The Commonwealth’s assertion that the court failed to apply the correct enhancement raises a substantial question regarding the exercise of sentencing discretion. These claims challenge the discretionary aspects of sentencing.
Shull responded that the evidence failed to support that he used the gun in furtherance of the commission of his crime. According to the victim, Shull never pointed the gun at her, referred to it in any way, or even looked at Grego while he held the gun in his hand. However, the gun was visible during the crime, Shull maintained it was not used as part of the crime.
The Superior Court disagreed with Shull’s argument, concluding that Shull’s mere possession of a gun transcended to his use of the gun as an implement of submission and fear when he decided to remove it from under his clothing and hold it—with finger on trigger—directly above the victim’s face as she lay helplessly under his forcible control.
Because the record established that Shull used the gun in a threatening way during his attack of the victim, the Superior Court concluded that the trial court’s rejection of the Deadly Weapon Used enhancement was manifestly unreasonable.
ISSUE
WHETHER THE LOWER COURT ABUSED ITS DISCRETION BY SENTENCING THE DEFENDANT OUTSIDE THE GUIDELINES WITHOUT SUFFICIENT JUSTIFICATION?
WHETHER THE LOWER COURT ABUSED ITS DISCRETION WHEN IT IMPROPERLY MODIFIED THE DEFENDANT’S SENTENCE FOR THE SOLE PURPOSE OF CHANGING THE PLACE OF CONFINEMENT?
HOLDING
The downward-departure sentence entered by the trial court was unreasonable in light of considerations set forth in the Sentencing Code. Sentence vacated and the case remanded for re-sentencing in a manner consistent with the Superior Court decision.
REASONING
In its remaining two issues, the Commonwealth asserted that the trial court unreasonably departed from both the enhancement and the robbery guideline ranges when it imposed a below-mitigating-range departure sentence designed for the sole purpose of securing a county sentence for Shull.
For Shull’s conviction of Robbery—Fear of Serious Bodily Injury, the sentencing guidelines’ standard range sentence was 22 to 36 months without application of any weapons enhancement, 31 to 45 months with a DWE/Possessed application, and 40 to 54 months with an DWE/Used application. At the initial sentencing hearing, the court applied a DWE/Possessed enhancement and, in its discretion, imposed a mitigated range 29 to 59 month sentence with the intention of placing Shull in a county correctional facility.
At the post-sentence motion hearing, however, the court observed that the sentencing statutes prevented it from placing Shull in the county facility unless the District Attorney consented, and she did not consent. For this reason, alone, the court reduced Shull’s sentence to 11 1⁄2 to 24 months, less one day, to circumvent the restrictions and to impose a County sentence.
The Superior Court assessed whether the trial court’s guideline departure sentence represented an abuse of discretion. In doing so, it specifically reviewed the trial court’s guideline departure sentence for reasonableness by considering (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 pre-sentence investigation; (3) The findings upon which the sentence was based; and (4) The guidelines promulgated by the commission. Additionally, the Superior Court also noted that the Sentencing Code requires that any sentence imposed should call for confinement that is consistent with the protection of the public; the gravity of the offense as it relates to the impact on the life of the victim and on the community; and, the rehabilitative needs of the defendant.
The Superior Court also noted that a sentencing court is obligated to carry out its duty to impose an individualized sentence and may depart from the guidelines when it properly identifies a particular factual basis and specific reasons which compel it to deviate from the guideline range. However, the Superior Court noted that in Shull’s case, there was an “inexplicably inadequate factual basis to substantiate a sentence significantly below the mitigating range for a typical first-degree felony robbery conviction, let alone one for which a deadly weapon enhancement also pertained.”
In fact, the Superior Court concluded that the trial court in Shull’s case tailored his sentence to whatever was necessary to avoid imposing a State sentence, regardless of the principles set forth in the Sentencing Code and called for by Shull’s individual history and circumstances and by the crime he committed.
The departure sentence entered by the trial court was therefore unreasonable in light of considerations set forth in the Sentencing Code.
LINK TO CASE:
http://www.pacourts.us/assets/opinions/Superior/out/J-A18037-16o%20-%201028077608885361.pdf?cb=1
