They want even more time?

I represent a defendant on appeal who entered open guilty pleas in a Philadelphia gun case (no shots fired, nobody hurt) back in March 2013.  My client remains incarcerated, with his state parole for a prior conviction now extended until late 2019.  Despite these circumstances, the Commonwealth appealed his sentence, because they want to “warehouse” him for 4-8 years in a state institution.  Your taxpayer dollars at work!

The first part of the argument section of my much longer opposition to the Commonwealth’s appeal is attached.  Hoping for the best.

A.             Two concurrent terms of time served to two years’ incarceration on the charges of violating Sections 6105 and 6106 of the UFA, subject to additional penalties for Whitfield’s violation of State Parole, was reasonable and consistent with the applicable provisions of the Sentencing Code.

The parties agreed on March 19, 2013 that the standard range for Whitfield’s UFA offenses was 48 to 60 months’ incarceration, plus or minus 12 months.  (R. 22b, NT 14/6-11).  The Trial Court’s sentence of time served to two years on the UFA charges was outside the guidelines, as a result of which this Court must decide if that sentence was “unreasonable.”  See 42 Pa. C.S. § 9781 (c)(3).  At the outset, Supreme Court authority instructs that an unreasonable sentence is one that is “irrational” or “not guided by sound judgment.”  Walls at 963.  These adjectives do not accurately describe Judge Schulman’s sentence in this case, most evidently because Whitfield remains incarcerated at SCI Somerset, pending a State Parole Hearing that will take place later this year.  Thus, while “time served” as of the Sentencing Hearing meant the 21 months that had passed between the June 19, 2011 offense date and the March 19, 2013 hearing date, “time served” now means the 31 months that have passed since June 19, 2011, and as Judge Schulman specifically recognized during sentencing, Whitfield faces the certainty “that the State Parole Board will be dealing with your parole case in the manner that will be appropriate.”  (R. 25b, NT 26/18-24).[1]  As a result, this case bears no resemblance to situations where this Court has vacated a sentence outside the guidelines as excessively lenient.  Compare Commonwealth v. Daniel, 30 A.3d 494, 497 (Pa. Super. 2011) (vacating 11 ½ to 23 month sentence where defendant had a lengthy criminal record, was on probation at the time of the incident, and “nearly killed an unarmed man by stabbing him in the stomach and he seriously injured another man.”).

In addition, the Trial Court’s sentence met all the criteria for review provided by the Sentencing Code.  The first requirement of Section 9781 (d) of the Code is that the Court “shall have regard for the nature and circumstances of the offense, and the history and characteristics of the defendant.”  42 Pa. C.S. § 9781 (d)(1).  Accordingly, Judge Schulman heard a detailed recitation of the facts from the Commonwealth – that when faced with an approaching caravan of police vehicles in the middle of the night on June 19, 2011, Whitfield removed a loaded Beretta semiautomatic pistol from his waistband, tossed it under a van near the corner of 22nd and Oxford Streets, and then attempted to sneak off into the night, only to be immediately arrested by Officer Hauser.  (R. 20b, NT /18-9/1).  On the consequences of having guns on the streets in general, the Trial Court heard four pages of testimony from Orla Treacy, a representative of Cease Fire Pennsylvania who covered the economic effects of gun violence (“they think, I’m not going to venture past Fairmount Avenue because it’s not safe”), and the danger of guns even when they don’t get fired (“in a lot of cases it’s just pure luck that there wasn’t a victim who was shot or killed”).  (R. 23b, NT 18/18-19/24).

The “history and characteristics of the defendant” were likewise thoroughly covered at the sentencing hearing.  Near the start of the hearing, defense counsel advised Judge Schulman, referring to Whitfield, that “he’s on parole.” (R. 20b, NT 6/3).  After the Court denied the Commonwealth’s request for a continuance, the first thing said by the ADA in the room was “Offense gravity score is 10; prior record is a 4; guidelines from an F-1 Robbery committed by this defendant sentenced in 2006.”  (R. 22b, 14/6-11).  After Ms. Treacy concluded her testimony on the community effects of gun violence, the Commonwealth characterized Whitfield, again referring to the 2006 conviction, as “somebody who cannot be near guns period.” (R. 24b, NT 21/4-5).  After each side had made its presentation, the Trial Court immediately noted that Whitfield “did state time at a young age” as a consequence of the 2006 robbery conviction.  (R. 25b, NT 26/1-7).  And finally, while imposing sentence, Judge Schulman made clear that “I was the Gun Court Judge for a year.  I fully understand what we are dealing with day in and day out, and I am not known as being a lenient sentencer.”  (R. 26b, NT 29/20-25).  There is no question that Whitfield’s criminal history was a primary fact of the Court’s consideration at sentencing, in compliance with Section 9781 (d)(1) of the Code.

The next criterion provided by Section 9781 (d) is “the opportunity of the sentencing court to observe the defendant, including any presentence investigation,” see 42 Pa. C.S. § 9781 (d)(2), and again there is no question that this element was met at the sentencing hearing.  After each side had covered its respective points, the Trial Court engaged in the following colloquy with Whitfield:

THE COURT: You are 28 years old now.  I look at you sitting here and you don’t look like the same guy who would commit a robbery and show up on parole with a loaded Glock and have the appalling attitude that comes out on this transcript.  You don’t look like that guy.  I would like to know, Mr. Whitfield, when you got out, did you get a job of any sort?

THE DEFENDANT: Yes.

THE COURT: Doing what?

THE DEFENDANT: Stage hands.  First I was working at Enterprise.  They fired me because of my criminal background, and I put on my application that I was a convicted felon, but they passed it.  So they fired me and wrote a letter of recommendation.  Then I started doing stage hands, and me and my wife opened our own business, and it’s still up and running, but it’s failing because of I’m in here.

THE COURT: Doing business as what?

THE DEFENDANT: Selling hair weave. 

(R. 25b, NT 26/25-28/1).  Evidently, Judge Schulman’s sentence was not the product of a perfunctory review of the facts, or a “cookie cutter” approach to either the defendant, or to gun-related crimes.  While the Trial Court denied as untimely the Commonwealth’s request for a continuance to obtain a PSI, the record demonstrates that Judge Schulman engaged in the individualized sentencing that is required by Section 9781 (d).

Finally, for purposes of this section of argument, the record likewise shows that Whitfield’s sentence satisifed the general standards of Section 9721 (b), which the record must show were expressly or implicitly considered by the sentencing court.  See Walls at 964, citing 42 Pa. C.S. § 9721 (b).  The first factor is “protection of the public,” and in furtherance of this, Whitfield remains in custody to date.  (R. 2b).  Further, Judge Schulman advised Whitfield: “You are never permitted to have a gun, Mr. Whitfield, ever.  Do you understand that?”  His answer was “Yes.” (R. 26b, NT 30/1-23).  While nobody was injured in either the July 19, 2011 incident or the 2004 robbery, Whitfield’s continuing supervision on State Parole after his release will further the protection of the public as required by Section 9721 (b)(1).[2] 

The second factor is “the gravity of the offense in relation to the impact on the victim and the community.”  42 Pa. C.S. § 9721 (b)(2).  While the June 19, 2011 incident fortunately did not involve a victim, the more general impacts of having loaded handguns on the streets of Philadelphia were covered in detail by the four pages of testimony given by Orla Treacy of Cease Fire Pennsylvania.  (R. 22b-23b, NT 16/22-20/17).  The third and final factor provided by Section 9721 (b) is “the rehabilitative needs of the defendant,” and again there is no doubt that Judge Schulman considered this at sentencing, where the Court asked Whitfield about his employment history, received ample facts about his wife’s successful hair weaving business, and then imposed anger management classes as a further component of the sentence.  (R. 26b, NT 30/24-31/1 – “Well, you clearly have an anger problem, so I will order anger management.”).

In summary, Judge Schulman’s sentence, imminently reasonable under the circumstances of Whitfield’s looming State Parole sanction, also met all criteria for review provided by Sections 9721 (b) and 9781 (d) of the Sentencing Code.[3]


[1] Whitfield’s 31 months in custody as a result of his arrest on June 19, 2011 is currently only five months short of a mitigated, guidelines sentence of 3 to 6 years.  By the time this case is argued, Whitfield’s time in custody will likely exceed what is necessary to achieve the functional equivalent of a Guidelines sentence, making this appeal moot.

[2] As a result of Whitfield’s convictions in this case, the Parole Board has so far taken away credit for Whitfield’s time at liberty from January 4, 2009 to June 19, 2011, and has extended his maximum date from October 23, 2016 to January 27, 2019 for the 2006 robbery conviction at CP-51-CR-507921-2004.

[3] While the Commonwealth chose to omit the transcript of the sentencing hearing from its Brief, the Commonwealth simultaneously goes outside the hearing record and into inadmissible hearsay to suggest that Whitfield’s use of the names Jalil and Devon somehow make him more deserving of a lengthy sentence.  See Commonwealth Brief at 5, n.1.  This Court should disregard the argument, as it is not based on materials that are part of the record on appeal.  Further, there has not been any confusion about Whitfield’s identity, and the suggestion that he might actually be a different prisoner by the same name, housed at SCI-Pittsburgh, is baseless.

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