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COMMONWEALTH PENNSYLVANIA v. ROBERT FLUELLEN (05/21/85)

submitted: May 21, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ROBERT FLUELLEN



Appeal from the Judgment of Sentence of May 1, 1984, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 83-11-1264.

COUNSEL

Eric B. Henson, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.

Anthony D. Jackson, Philadelphia, for appellee.

Cavanaugh, Cirillo and Hester, JJ.

Author: Hester

[ 345 Pa. Super. Page 168]

In this appeal we consider whether the trial court abused its discretion in sentencing appellee, Robert Fluellen, by

[ 345 Pa. Super. Page 169]

    unreasonably deviating from the Pennsylvania Sentencing Guidelines. We agree with appellant, Commonwealth of Pennsylvania, vacate the judgment of sentence and remand for resentencing.

On November 4, 1983, defendant/appellee was found guilty by a Municipal Court Judge of possession of a controlled substance, manufacturing a controlled substance with intent to deliver and conspiracy. He was sentenced to two and one-half to five years imprisonment on the delivery charge, a consecutive five year term of probation for conspiracy and a suspended sentence on the charge of possession.

Fluellen appealed and was tried de novo in the Philadelphia Court of Common Pleas on February 8, 1984. The Commonwealth established at trial that appellee sold three bags of cocaine to an undercover narcotics officer introduced to appellee by an informant. A search following appellee's arrest yielded 18 additional plastic packets of a white powder containing cocaine and one packet containing quinine and reducing sugar. Fluellen was again adjudged guilty of possession of a controlled substance and manufacturing a controlled substance with intent to deliver, but acquitted of conspiracy.

On May 1, 1984, appellee was sentenced to time served (approximately six months) to twenty-three and one-half months incarceration, to be followed by three years probation and inpatient drug rehabilitation. The Commonwealth filed a petition for reconsideration of sentence on May 11, 1984. However, neither the official court file nor the lower court docket entries revealed that such a motion had been filed. For this reason, the trial court held that the Commonwealth waived its argument that the sentence imposed unreasonably deviated from the sentencing guidelines.

A copy of the petition for reconsideration of sentence, revealing its date stamp ...


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