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COMMONWEALTH PENNSYLVANIA v. THOMAS K. THOMAS (07/11/84)

submitted: July 11, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS K. THOMAS, APPELLANT



No. 03187 Philadelphia 1983, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Monroe County At No. 584-1983.

COUNSEL

Arthur L. Zulick, Assistant Public Defender, Stroudsburg, for appellant.

James F. Marsh, District Attorney, Stroudsburg, for Commonwealth, appellee.

Wieand, Olszewski and Popovich, JJ.

Author: Popovich

[ 335 Pa. Super. Page 102]

This is an appeal by appellant, Thomas K. Thomas, from a judgment of sentence of 10 to 20 years' imprisonment entered following a plea of nolo contendere to rape. This is the maximum sentence permitted by 18 Pa.C.S.A. § 3121, 18 Pa.C.S.A. § 1103.

Appellant was charged with kidnapping, rape and related crimes arising from an incident which took place on July 1, 1983. On that day, the victim, responding to a request from one of appellant's friends, agreed to give appellant a ride. He subsequently abducted and raped her in a wooded area on the Appalachia Trail in Monroe County in the presence of her 10-week old son. He then bound, gagged and blindfolded her and left her lying naked at this distant outpost. After appellant departed, the victim, still bound, was forced to leave her son and walk a distance of approximately five miles before she was able to secure help.

On September 14, 1983, appellant entered his pleas of nolo contendere to the charges of rape and kidnapping. On October 31, 1983, he was sentenced to a term of five to ten years' incarceration on the kidnapping charge to be served consecutively with the sentence which is the subject

[ 335 Pa. Super. Page 103]

    of this appeal. This appeal follows denial, after a hearing, of appellant's motion for reconsideration.*fn1 We affirm.

Appellant herein raises three issues for our consideration. First, he argues that the lower court erred in imposing a sentence in excess of the aggravated minimum range of the Pennsylvania Sentencing Guidelines.

It is true that the lower court imposed a sentence in excess of the minimum aggravated range for an offense with a gravity offense score of "9"; however, the court provided its reasons for so doing. 204 Pa.Code 303.1(h), 42 Pa.C.S.A. § 9721 et seq., effective July 22, 1982, provides

In every case where the court imposes a sentence outside the sentencing guidelines, the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from this chapter.

The court listed the following reasons in the departure report:

The facts of this case show that the Defendant acted in an extremely brutal and calculating fashion in ...


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