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COMMONWEALTH PENNSYLVANIA v. MELVINA JOHNAKIN (09/11/85)

submitted: September 11, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
MELVINA JOHNAKIN



Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal No. 83-09-1857-1860.

COUNSEL

Gerald A. Stein, Philadelphia, for appellee.

Spaeth, President Judge, and Hoffman and Hester, JJ.

Author: Spaeth

[ 348 Pa. Super. Page 434]

This is an appeal by the Commonwealth from a judgment of sentence. Appellee was convicted of robbery, simple and aggravated assault, theft by unlawful taking, and recklessly endangering another person. She was acquitted of other charges, including possession of an instrument of crime. After her post-trial motions were denied, she was sentenced to eleven to twenty-three months' imprisonment, to be followed by eight years' probation. Other charges of which appellee was convicted were found to merge in the conviction for robbery. On this appeal the Commonwealth argues that the trial court applied the sentencing guidelines erroneously, and that the sentence imposed was outside the guidelines and was unreasonable. We agree that the trial court misapplied the guidelines, and we therefore vacate the sentence and remand so that the trial court may resentence knowing the correct minimum sentence range. We do not

[ 348 Pa. Super. Page 435]

    reach the issue of whether the sentence imposed was unreasonable.

The Commonwealth may appeal from the discretionary aspects of a judgment of sentence under 42 Pa.C.S. § 9781(b), and it may initiate the appeal simply by filing notice as required under Pa.R.A.P. 902. However, before proceeding to the merits of such an appeal, we must decide whether there is a substantial question that the sentence imposed was inappropriate under the sentencing guidelines. Commonwealth v. Fluellen, 345 Pa. Super. 167, 497 A.2d 1357 (1985); Commonwealth v. Drumgoole, 341 Pa. Super. 468, 491 A.2d 1352 (1985). For reasons that will become apparent, we find that such a question exists.

On review of a judgment of sentence to which the sentencing guidelines apply, we will vacate the sentence and remand with instructions if we find (1) that the trial court applied the guidelines erroneously; (2) that the sentence, even though within the guidelines, is "clearly unreasonable," or (3) that the sentence, if outside the guidelines, is unreasonable. 42 Pa.C.S. § 9781(c); Commonwealth v. Drumgoole, supra, 341 Pa. Superior Ct. 468, 491 A.2d at 1352. Accordingly, we must begin by deciding whether the trial court applied the guidelines properly in this case. The Commonwealth argues that it did not; specifically, it argues that the trial court applied the wrong offense gravity score, and erroneously failed to apply the deadly weapon enhancement provision of the guidelines. 204 Pa.Code § 303.4. We agree on both points.

Appellee was convicted of robbery, and the trial court found that in the course of the robbery she inflicted serious bodily injury upon the victim. N.T. 7/13/84 at 35-36; See also slip op. of tr. ct. at 2. Under the sentencing guidelines, robbery (inflicts serious bodily injury) has an offense gravity score of 9. 204 Pa.Code § 303.8. However, the infliction of serious bodily injury was the basis of appellee's conviction of aggravated assault, a second degree felony. The guidelines provide that robbery (commits or

[ 348 Pa. Super. Page 436]

    threatens immediately to commit any F1 or F2) has an offense gravity score of 7. Id. The trial court reasoned that the actions for which appellee was convicted fit either of these definitions, and that it therefore had the option to sentence under an offense gravity score of either 9 or 7. N.T. 7/13/84 at 34-35. The court chose to apply the offense gravity score of 7.

We do not agree that the trial court had discretion with respect to the correct offense gravity score. Appellee was found guilty of a robbery during which she caused serious bodily injury to her victim. The trial court found that the conviction for aggravated assault merged in the conviction for robbery. N.T. 7/13/84 at 36. The court could not then separate the two offenses for the purpose of determining the correct offense gravity score. Allowing the court such discretion would allow it to defeat the purpose of the guidelines, which were developed to "focus appellate review . . . on the reasonableness of deviations from the presumptively appropriate range of sentence." Commonwealth v. Fluellen, supra 345 Pa. Super. at 167, 497 A.2d at 1357; Commonwealth v. Hutchinson, 343 Pa. Super. 596, 495 A.2d 956 (1985). The ...


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