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COMMONWEALTH PENNSYLVANIA v. CHARLES JEFFERSON SMITH (03/01/85)

filed: March 1, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
CHARLES JEFFERSON SMITH, APPELLANT



No. 1991 Philadelphia 1983, Appeal from the Judgment of Sentence in the Court of Common Pleas of Lancaster County, Criminal Division at No. 15 of 1983.

COUNSEL

Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.

Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.

Cirillo, Del Sole and Popovich, JJ. Cirillo, J., files a dissenting opinion.

Author: Popovich

[ 340 Pa. Super. Page 73]

This is an appeal from the judgment of sentence in which appellant, Charles Smith, entered pleas of guilty to robbery,*fn1

[ 340 Pa. Super. Page 74]

    aggravated assault,*fn2 and disorderly conduct.*fn3 We reverse and remand for proceedings consistent with this opinion.

In this appeal, appellant raises one issue. He contends that his sentence is excessive because it "was nearly three times greater than the maximum sentence recommended under the guidelines for an 'aggravated' range." Brief for the Appellant at 2.

Appellant received a term of imprisonment of not less than five years nor more than ten years on the robbery conviction; a consecutive term of imprisonment of not less than six months nor more than one year on the disorderly conduct conviction, and a term of probation of ten years on the aggravated assault conviction, which was to run concurrent with the robbery conviction.

At the outset, the prosecution contends that the issue is waived because "appellant waited until the 28th day after the imposition of sentence to file his motion." Brief for the Prosecution at 3.

However, the record shows that appellant's counsel made the following statement at the sentencing hearing after being informed of his appellate rights:

MR. BOYD: Your honor, at this time inasmuch as the Court's minimum sentence on the robbery is three and a half times the maximum of the aggravated circumstances for a guideline score of seven, with no prior record, the Defendant wishes to orally make a motion to modify this sentence, which will be reduced to writing. N.T. 6/27/83 at 11. (emphasis added).

The trial court responded in the following manner:

"THE COURT: You may do so and I have stated the reasons on the record, and I will place those reasons -- again in the guidelines report. And they are basically that the Defendant has a history of assault, that he is

[ 340 Pa. Super. Page 75]

    before the Court -- two assault charges. And that the assault charges stem from a needless, senseless act of assault, which took place after the primary robbery had taken place." Sentencing Transcripts at 11-12.

Under these facts, we cannot assume that appellant's decision to reduce his petition to writing late was done in a knowing, intelligent, and voluntary manner particularly when the record indicates that the court granted appellant permission at sentencing to "orally make a motion to modify sentence, which will be reduced to writing." Id. Thus, we will consider appellant's motion as if it had been filed timely. See Commonwealth v. Thomas, 301 Pa. Super. 333, 337, 447 A.2d 994, 996 (1982) (where appellant was led to believe that his appeal would be timely if filed within 30 days of the disposition of his motion to challenge his sentence instead of from the date that his sentence was imposed, his appeal would be considered as if timely filed). We have said that:

"the purpose of a petition for reconsideration is to afford the sentencing court an opportunity prior to appellate review, to correct any errors that may have occurred at sentencing." Commonwealth v. Burtner, 307 Pa. Super. 230, 235, 453 A.2d 10, 12 (1982) (citations omitted).

See Pa.R.Crim.P. 1410 ("petition to modify should be filed within 10 days of the date that sentence is imposed").

In the instant case, the trial court was not deprived of that opportunity since it had "an opportunity prior to appellate review to correct any errors that may have occurred at sentencing." Id. See Commonwealth v. Gordon, 329 Pa. Super. 42, 49, 477 A.2d 1342, 1345-6 (1984) ("the trial court lacks jurisdiction to modify a sentence once the 30 day period for filing an appeal has passed.").

Appellant is arguing that the new sentencing guidelines were not followed, and that the matter should be remanded because the court "gave no reasons why the sentencing guidelines were not imposed." Brief for Appellant at 2.

[ 340 Pa. Super. Page 76]

We must remand the matter because the sentencing proceedings were defective.

The appellant was sentenced on June 27, 1983, which was after the effective date of the sentencing guidelines set forth in 204 Pennsylvania Code, Chapter 303, 42 Pa.C.S. § 9721 (effective July 22, 1982). Recently, this Court applied the new guidelines and said the following:

Initially, we note that there are two sets of "guidelines" for imposition of sentence. The earlier legislative "guidelines" are actually factors to be considered in weighing sentencing alternatives found in the Sentencing Code, 42 Pa.C.S. § 9701, and deal in general with the alternatives of (1) probation; (2) determination of guilt without further penalty; (3) partial confinement; (4) total confinement and (5) a fine. 42 Pa.C.S. §§ 9721 to 9726. As noted in Commonwealth v. Doyle, 275 Pa. Super. 373, 380, 418 A.2d 1336, 1340 (1979):

In imposing sentence the court "must not overlook pertinent facts, disregard the force of the evidence, commit an error of law . . . or inflict punishment exceeding that prescribed by statute." Commonwealth v. Knight, supra, 479 Pa. [209] at 212, 387 A.2d [1297] at 1299; see Commonwealth v. Lee, 450 Pa. 152, 299 A.2d 640 (1973). The court must consider the character of the defendant and the particular circumstances of the offense in light of the legislative guidelines for sentencing, and must impose a sentence that is the minimum sentence consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. See The Sentencing Code, Act of Dec. 30, 1974, P.L. 1052, No. 345, 18 Pa.C.S. § 1321(b) (Supp. 1977); Commonwealth v. Knight, supra, Commonwealth v. Riggins, supra [474 Pa. 115, 377 A.2d 140 (1977)]. (emphasis added).

The guidelines promulgated by the Pennsylvania Commission on Sentencing are set forth in the Pennsylvania Code and found at 42 Pa.C.S. § 9721. They were adopted

[ 340 Pa. Super. Page 77]

    by the legislature on May 14, 1982, to become effective on July 22, 1982. The purpose of the sentencing guidelines is to insure that more uniform sentences are imposed in this Commonwealth. Accordingly, the guidelines set forth the minimum range, aggravated minimum range and mitigated minimum range of sentence for the offenses dealt with in the sentencing range chart. The sentence range chart deals with specific offenses and the range of sentence for that offense considering "the offense gravity score" and "prior record score" as well as "weapon enhancement", if applicable. The sentencing guidelines now include specific as well as general standards which must be considered by the trial court.

In every case where sentence is imposed the court must state on the record at sentencing the reasons for the imposition of the sentence. This rule is applicable whether or not the sentence imposed is within the specific guidelines established by the Pennsylvania Commission on Sentencing. Commonwealth v. Royer, 328 Pa. Super. 60, 66, 476 A.2d 453, 455 (1984).

The underlying crime for which appellant was sentenced stemmed from appellant's entrance into a Turkey Hill Minit Market at 3:50 in the morning in Lancaster, Pennsylvania on December 8, 1982. While appellant was in the store, he struck the cashier about the face and neck areas and attempted to commit a robbery.

Appellant demanded money and received approximately sixty dollars in cash. The victim sustained serious bodily injury and had to be admitted to the hospital to have extensive medical attention.

In the instant case, there is no issue regarding whether the trial court complied with the first set of general guidelines as set forth in Commonwealth v. Riggins, supra. Instead, we are confronted with a question about the specific standards which must be considered by the trial court.

The record shows that appellant entered pleas of guilty to felonies of the second degree, robbery and aggravated

[ 340 Pa. Super. Page 78]

    assault. The simple assault charge was reduced to disorderly conduct, a misdemeanor of the third degree.

The procedure for determining the guideline sentence is set forth as follows in Section 303.2:

(1) Determine the prior record and offense gravity scores as described in §§ 303.7 and 303.8 (relating to prior record score and offense gravity score) except where the current conviction is for "Driving Under the Influence" under 75 Pa.C.S. § 3731 (relating ...


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