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COMMONWEALTH PENNSYLVANIA v. CHERYL M. PARRISH (03/22/85)

filed: March 22, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
CHERYL M. PARRISH, APPELLANT



Appeal from the Judgment of Sentence in the Court of Common Pleas of Potter County, Criminal Division, No. 113 of 1983, O.T.N.: B114512-6; No. 370 Pittsburgh, 1984, J-78042/84

COUNSEL

Basil J. Freeman, Port Allegheny, for appellant.

David B. Acker, District Attorney, Coudersport, for Commonwealth, appellee.

Cirillo, Tamilia and Montgomery, JJ.

Author: Per Curiam

[ 340 Pa. Super. Page 530]

This is an appeal from judgment of sentence following a guilty plea/plea bargain as to charges without specification as to the sentence. The charges and sentences were homicide by vehicle (1 1/2 -- 3 years), driving under the influence (1 -- 2 years consecutive to the homicide by vehicle sentence) and leaving the scene of an accident (6 -- 12 months concurrent with the driving under the influence sentence). Appellant's motion for modification of sentence was denied and she filed this timely appeal. Appellant, Cheryl Parrish, presents only one issue on appeal, that is, excessiveness of sentence in that the sentence imposed violates or exceeds the sentencing guidelines.

After careful consideration of the briefs, record and sentencing guidelines, we would agree with appellant that the sentence imposed is improper in that the guidelines were misapplied, the result being an excessively harsh and

[ 340 Pa. Super. Page 531]

    manifestly excessive sentence.*fn1 We, therefore, reverse the trial court and vacate the judgment of sentence.*fn2

An analysis of the possible sentences for the three crimes in question is, necessarily, the first matter we will address. Homicide by vehicle, 75 Pa.C.S.A. § 3732, is a misdemeanor of the first degree. Applying the Sentencing Guidelines, 42 Pa.C.S.A. § 9721, 204 Pa.Code § 303.1 et seq., with an undisputed prior record score of 0, the suggested minimum sentencing range is 0 -- 12 months, the mitigated sentence, non-confinement, and the aggravated minimum range, 12 -- 18 months. The statutory maximum for a misdemeanor of the first degree is 5 years. Appellant was sentenced to 1 1/2 -- 3 years -- the most extreme sentence suggested under the aggravated range.

Leaving the scene of an accident, involving death or personal injury, 75 Pa.C.S.A. § 3742(a), is a misdemeanor of the third degree; the guidelines indicating 0 -- 6 months in the minimum range, non-confinement in the mitigated minimum range, and the statutory limit -- 1 year for misdemeanor III's, is the aggravated range. Appellant was sentenced 6 -- 12 months -- the extreme end of the minimum range.

Driving under (the) influence of alcohol or controlled substance, 75 Pa.C.S.A. § 3731, is a misdemeanor of the second degree. The guidelines, written when drunk driving was a misdemeanor of the third degree, suggest a minimum sentence range of non-confinement to 6 months, a mitigated sentence of non-confinement and an aggravated sentence of six months. If one applies the statutory maximum for a misdemeanor of the second degree, it is 2 years and the mandatory sentences under 75 Pa.C.S.A. § 3731 provide: (i) not less than 48 hours for a first offense; (ii) not less than

[ 340 Pa. Super. Page 53230]

days for a second offense; (iii) not less than 90 days for a third offense and (iv) not less than one year for a fourth offense. In this instance, appellant was sentenced to 1 -- 2 years. The sentence is far beyond that suggested by the guidelines for D.U.I.; it is identical to the maximum mandatory sentence for a four-time offender and in this instance, appellant had no prior convictions of any kind.

Sentencing is a matter within the sound discretion of the sentencing court, and, generally, will not be disturbed absent an abuse of discretion. Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978); Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976); Commonwealth v. Giffin, 279 Pa. Super. 264, 420 A.2d 1134 (1980). "If the sentence imposed is within the statutory limits, there is no abuse of discretion, unless the sentence is so manifestly excessive so as to inflict too severe a punishment." Commonwealth v. ...


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