J-E01003-15

2015 PA Super 128

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DOMINIC CALDWELL

Appellant No. 1191 EDA 2013

Appeal from the Judgment of Sentence of November 14, 2012

In the Court of Common Pleas of Philadelphia County

Criminal Division at No.: CP-51-CR-0007114-2011

BEFORE: BOWES, DONOHUE, SHOGAN, LAZARUS, MUNDY, OLSON, WECHT, 

STABILE, and JENKINS, JJ. 

CONCURRING OPINION BY WECHT, J.: FILED MAY 29, 2015

The conduct which led to Dominic Caldwell’s conviction for aggravated 

assault and other crimes was wanton. It was reckless. It was dangerous. It 

put lives at risk. It deserved to be punished, and punished with severity. 

Did it merit a sentence that would result in confinement for over three 

decades, and perhaps for life? Perhaps not. I have my doubts. But 

sentencing is vested in the sound discretion of the sentencing judge, and is 

assailable only for a manifest abuse thereof. Accordingly, with considerable 

discomfort, I am constrained to concur.

Like the majority, I believe that Caldwell raises a substantial question 

that the trial court abused its discretion in ordering his sentences to run 

consecutively, with insufficient consideration of mitigating circumstances. 

See Commonwealth v. Edwards, 71 A.3d 323, 330-31 (Pa. Super. 2013). 

I am not entirely satisfied that the trial court fashioned a sentence that 
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adequately considered Caldwell’s individualized rehabilitative needs and 

mitigating circumstances. I am concerned that the trial court’s order is 

somewhat inconsistent internally, rejecting prospects for rehabilitation on 

the one hand, and ordering that Caldwell obtain his GED and job training on 

the other.

At sentencing, Caldwell was twenty-three years of age. He was 

sentenced in the aggregate to a minimum of thirty-one and a maximum of 

sixty-two years’ incarceration. His earliest release date puts him on the 

street at fifty-four years of age; his maximum releases him at age eightyfive.

Our General Assembly instructs Pennsylvania Courts that: “the 

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.” 42 Pa.C.S.A. § 9721(b). A trial court abuses its 

discretion when it orders an aggregate sentence that is “‘clearly 

unreasonable’ within the meaning of 42 Pa.C.S. § 9781(c).” 

Commonwealth v. Coulverson, 34 A.3d 135, 139 (Pa. Super. 2011) 

(vacating and remanding for resentencing where, inter alia, “90-year 

aggregate maximum potentially consigns a 19-year-old defendant with 

mental health problems to life in prison without even a nod to relevant 

sentencing factors”). See also 42 Pa.C.S.A. § 9781(c)(2) (stating that 

appellate court should vacate a sentence when “the sentencing court 
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sentenced within the sentencing guidelines but the case involves 

circumstances where the application of the guidelines would be clearly 

unreasonable”).

We have determined that a trial court oversteps its discretionary 

bounds by aggregating nonviolent offenses into what is effectively a life 

sentence. See, e.g., Commonwealth v. Dodge, 957 A.2d 1198, 1200 (Pa. 

Super. 2008) (holding that life sentence for forty counts of receiving stolen 

property was excessive); see also Commonwealth v. Dodge, 77 A.3d 

1263, 1278 (Pa. Super. 2013) (Wecht, J., dissenting).1 On an individualized 

basis, we have extended this consideration to violent crimes, as well. See 

Coulverson, 34 A.3d at 139 (reversing eighteen- to ninety-year aggregate 

sentence for, inter alia, rape, sexual assault, and aggravated assault as 

excessive). As we explained in Coulverson: 

In accordance with our Supreme Court’s pronouncement in 

[Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007)], we 

acknowledge the inherent fluidity of the “reasonableness” inquiry 

as well as the nuanced discretion that hallmarks the sentencing 

process. See [id.] at 963. In accordance with our own decision 

in [Commonwealth v. Dodge, 957 A.2d 1198, 1200 (Pa. 

Super. 2008)], which applied Walls on remand, we also 

recognize that individualized sentencing remains the controlling 

norm of the sentencing process and that a sentence befitting one 

____________________________________________

1 The Supreme Court of the United States has found that a trial court 

violated the Eighth Amendment when it ordered a defendant to serve a life 

sentence for nonviolent crimes. See Solem v. Helm, 463 U.S. 277 (1983) 

(holding that it was a violation of the Eighth Amendment to sentence a 

defendant to life for a seventh non-violent felony of writing a bad check for 

$100).
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defendant may not befit another. Hence, in Dodge, we 

concluded that a sentence spanning the remainder of the 

defendant’s life was “clearly unreasonable” within the meaning of 

Walls even though the defendant, at 42, had a long criminal 

history and was sentenced for multiple offenses. See Dodge, 

957 A.2d at 1202. The circumstances underlying the 

defendant’s crimes in Dodge do not inform our decision here, as 

the defendant had committed numerous property crimes rather 

than “crimes against the person.” Id. at 1201. We do find 

guidance, however, in the panel’s recognition that the trial judge 

imposed sentence not on a nuanced consideration of the 

statutory factors delineated in sections 9721 and 9781 but with 

“a fixed purpose of keeping Appellant in jail for his life.” Id. In 

Dodge, as here, the trial court imposed sentences commencing 

in the standard range of the guidelines but ordered them to run 

consecutive to one another on 37 counts, rendering an 

aggregate sentence of 58 1/2 to 124 years’ incarceration. Id. at 

1200. Although the court had the benefit of a PSI report, as well 

as an ample opportunity to observe the defendant, and cited the 

defendant’s failed history of rehabilitation, we found the court’s 

sentencing decision “irrational” and “clearly unreasonable.” Id. 

at 1202. Specifically citing the trial court’s “fixed purpose of 

keeping Appellant in jail for his life,” id. at 1201, we eschewed 

the court’s excessive emphasis on retribution at the expense of 

other statutorily mandated considerations, e.g., 42 Pa.C.S. 

[§] 9781(d)(1) (“The nature and circumstances of the offense 

and the history and characteristics of the defendant”), and 

remanded the matter for imposition of a truly individualized 

sentence shorn of the trial judge’s evident agenda.

Coulverson, 34 A.3d at 147-48. “[T]he record as a whole must reflect the 

court’s reasons and its meaningful consideration of the facts of the crime 

and the character of the offender.” Commonwealth v. Malovich, 903 A.2d 

1247, 1253 (Pa. Super. 2006).

At sentencing, Caldwell’s counsel reminded the court that “[h]e didn’t 

shoot anybody. There was no serious bodily injury here.” Notes of 

Testimony (“N.T.”), 11/14/2012, at 22. Nonetheless, the court focused, not 
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unreasonably, on the “gun play, shooting a gun on the street. You could 

have killed someone. But for the grace of God [] no one was killed.” Id. at 

43; see id. at 44 (“But for the grace of God that no one is dead[.]”). The 

court then announced an aggregate sentence of thirty-one to sixty-two 

years’ incarceration, and stated:

I’m also ordering that you complete your GED program that 

you’re already enrolled in. I think that’s wonderful. I would like 

you to enter job training. If you can take all that energy that 

you gave today in court in speaking and use that when you apply 

for a job when you do get out and you will get out one day, you 

apply that energy into persuading a perspective [sic] employer I 

think you’ll be fine with obtaining employment.

Id. at 47.

The sentencing court declared Caldwell incapable of rehabilitation. Id.

at 45. It is difficult to reconcile a sentence bearing a minimum term of 

thirty-one years’ incarceration with an order that Caldwell complete his GED 

and job training. Presumably, the GED and job training have some 

rehabilitative purpose. Or perhaps they are just calculated to keep Caldwell 

occupied. We do not know. The sentencing court does not tell us. At all 

events, I am hard-pressed to imagine what rehabilitative purpose Caldwell’s 

job training may serve him upon release three decades from now at a 

minimum, if ever in his lifetime. 

I believe that the sentence reflects the court’s focus on the (thankfully 

unrealized) possibility that someone could have been killed by Caldwell’s 

criminal actions. Perhaps the mandate for a GED and job training is a 
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backhanded or unstated nod to some hope for Caldwell’s rehabilitation, or 

perhaps it is lip service, or surplusage. The record on this point is somewhat 

opaque. 

Still in all, faithful to our precedent, I am unable to conclude that 

Caldwell’s sentence is “clearly unreasonable” or that it represents a manifest 

abuse of discretion. Compare Coulverson, 34 A.3d at 147-48; Malovich, 

903 A.2d at 1253; Dodge, 77 A.3d at 1278. As the learned majority 

observes, the sentencing court had the benefit of Caldwell’s arrest record, a 

pre-sentence investigation, and Caldwell’s allocution when fashioning his 

sentence. Maj. Opinion at 12-13. The record reflects that the sentencing 

court considered only a minimal amount of the appropriate sentencing 

factors specific to Caldwell and the facts at hand; nonetheless, minimal 

consideration is all that is required. See Walls, 926 A.2d at 963. Moreover, 

had the court further explained itself with appropriate deliberation and 

discussion on the record, Caldwell’s sentence would have been neither

excessive per se nor an abuse of discretion. I cannot conclude that, in this 

instance, the sentencing court violated the sentencing process or abused its 

discretion in fashioning Caldwell’s sentence. The court’s consideration of the 

relevant factors was minimal, as noted above. I consider the court’s efforts 

barely adequate to affirm. But, as a matter of law, barely adequate is 

adequate enough.

Accordingly, I concur.