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COMMONWEALTH PENNSYLVANIA v. DENNIS PATRICK CATAPANO (09/03/85)

submitted: September 3, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
DENNIS PATRICK CATAPANO, APPELLANT



Appeal from the Judgment of Sentence of October 19, 1984 in the Court of Common Pleas of Montgomery County, Criminal Division, at Nos. 3560-84; 3560.1-84; 3560.2-84; 3560.3-84; 3560.4-84; 2104-84; 4179-84; 2416-84; 4180-83; 4192-83.

COUNSEL

Frank R. Bartle, Lansdale, for appellant.

Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Johnson, Hoffman and Cercone, JJ.

Author: Hoffman

[ 347 Pa. Super. Page 377]

This is an appeal from the judgment of sentence for burglary (eight counts), auto theft, and driving while under the influence of alcohol. Appellant contends that the lower court failed to state reasons on the record for sentencing him outside of the sentencing guidelines. For the following reasons, we vacate in part and affirm in part.

On July 18, 1984, appellant pled guilty to three counts of burglary, auto theft, and driving while under the influence of alcohol. On October 19, 1984, the day scheduled for appellant's sentencing, he pled guilty to five additional counts of burglary. The same day, the court below sentenced appellant to the following terms of imprisonment: Bill of Information 3560-84 (burglary), three-to-ten years; 3560.1-84 (burglary), three-to-ten years, consecutive to 3560-84; 3560.2-84 (burglary), one-to-two-years, consecutive to 3560.1-84; 3560.3-84 (burglary), one-to-two years, concurrent to 3560.2-84; 3560.4-84 (burglary), one-to-two years, concurrent to 3560.3-84; 2104-84 (burglary), two-and-one-half-to-five years, consecutive to 3560.2-84; 4179-83 (burglary), one-to-two years, concurrent to 3560.3-84; 2416-84 (burglary), one-to-two years, concurrent to 4179-83; 4180-83 (auto theft), suspended sentence; and 4192-83 (driving while under the influence of alcohol), three-to-twenty-four months, concurrent to 4179-83. Appellant thus received a total term of nine-and-one-half-to-twenty-seven years imprisonment. His motion for modification of sentence was timely filed and, following a January 9, 1985 hearing, was denied. This appeal followed.

Appellant contends that his sentences on Bills of Information 3560-84, 3560.1-84, and 2104-84, "overstep the bounds" of the sentencing guidelines, 204 Pa.Code §§ 303.1-.9, reprinted following 42 Pa.C.S.A. § 9721. We agree. Appellant's prior record score is zero. See N.T. October 19, 1984 at 53; id. January 9, 1985 at 15-16. The burglaries charged in bills 3560-84 and 3560.1-84 have an offense gravity score of seven. 204 Pa.Code § 303.8(d) ("Burglary of a structure adapted for overnight accommodation in

[ 347 Pa. Super. Page 378]

    which at the time of the offense any person is present"); see also N.T. October 19, 1984 at 54. The sentence ranges for a prior record score of zero and an offense gravity score of seven are as follows: eight-to-twelve months (minimum range), four-to-eight months (mitigated minimum range), and twelve-to-eighteen months (aggravated minimum range). 204 Pa.Code § 303.9. Appellant received minimum sentences of three years (thirty-six months) on bills 3560-84 and 3560.1-84, twice the maximum suggested under the aggravated range. The burglary charged in 2104-84 has an offense gravity score of five. Id. § 303.8(d) ("Burglary of a structure not adapted for overnight accommodation in which at the time of the offense no person is present"); see also N.T. October 19, 1984 at 54-55. The applicable sentence ranges, with a prior record score of zero, are as follows: zero-to-twelve months (minimum range), non-confinement (mitigated minimum range), and twelve-to-eighteen months (aggravated minimum range). Appellant received a minimum sentence of two-and-one-half years (thirty months) on bill 2104-84, a minimum twelve months greater than the maximum suggested under the aggravated range. Therefore, appellant correctly states that the sentences imposed on bills 3560-84, 3560.1-84, and 2104-84 exceed the guidelines. (Brief for Appellant at 10).

A sentencing court can, of course, sentence a defendant to the maximum period authorized by statute, 42 Pa.C.S.A. § 9756(a), and the "minimum sentence . . . shall not exceed one-half of the maximum sentence imposed." Id. 9756(b).*fn1 However, "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 the guidelines. Failure to comply shall be grounds for vacating the sentence and resentencing the defendant." Id. § 9721(b) (emphasis added); see also 204 Pa.Code § 303.1(h). Therefore, "two issues are raised [here]: (1) was the statement of the court made at sentencing

[ 347 Pa. Super. Page 379]

    in [appellant's] presence, and recorded, a 'contemporaneous written statement'; and if so then, (2) is the statement sufficient to meet the requirements of [§ 9721(b)]." Commonwealth v. Royer, ...


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