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COMMONWEALTH PENNSYLVANIA v. DWIGHT CAMERON JOHNSTON. COMMONWEALTH PENNSYLVANIA V. DWIGHT CAMERON JOHNSTON (11/29/85)

filed: November 29, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
DWIGHT CAMERON JOHNSTON. COMMONWEALTH OF PENNSYLVANIA V. DWIGHT CAMERON JOHNSTON, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Butler County, Criminal Division, at No. C.A. 100 of 1984, Book 78 Page 102.

COUNSEL

William R. Shaffer, Assistant District Attorney, Butler, for Commonwealth, appellant (at 1541) and appellee (at 1545).

Frank W. Ittel, Jr., Pittsburgh, for appellant (at 1545) and appellee (at 1541).

Cavanaugh, Brosky and Watkins, JJ.

Author: Brosky

[ 348 Pa. Super. Page 162]

These cross-appeals are from the judgment of sentence imposed after appellee*fn1 was found guilty in a bench trial of possession with intent to deliver*fn2 and simple possession.*fn3 Appellee contends that: (1) his motion to suppress evidence should have been granted because the totality of the circumstances did not establish probable cause for issuance of a search warrant; and (2) his demurrer should have been sustained because the Commonwealth did not adduce evidence

[ 348 Pa. Super. Page 163]

    from which it could be concluded beyond a reasonable doubt that he constructively possessed the contraband recovered in this case. Appellant contends that the sentencing court erred in imposing a sentence for the offense of possession with intent to deliver which was in the mitigated minimum range of the Sentencing Guidelines*fn4 instead of the minimum range without stating any reasons for doing so. We find no merit to either appeal,*fn5 but do find that the crime of simple possession should have been merged for sentencing purposes with the crime of possession with intent to deliver. Accordingly, we vacate the judgment of sentence for simple possession and affirm the judgment of sentence for possession with intent to deliver.

On November 1, 1984, appellee was sentenced to five to ten months imprisonment and two years probation for the crime of possession with intent to deliver. An identical concurrent sentence was imposed for the crime of simple possession. The Commonwealth timely filed a motion for modification of sentence which was denied by the lower court. This appeal timely followed.

Appellant argues that the minimum range established by the Sentencing Guidelines for appellee's sentence was 8 to

[ 348 Pa. Super. Page 16412]

months imprisonment. It contends that the minimum sentence of five months imposed by the lower court was in the mitigated minimum range and since the sentencing court did not give any reasons for sentencing within this range, the case should be remanded for resentencing.

We agree with the Commonwealth that if a sentencing court sentences outside of the minimum range (in the aggravated minimum range or the mitigated minimum range) or outside of the guidelines entirely, it must explain its reasons for doing so. See Commonwealth v. Royer, 328 Pa. Super. 60, 476 A.2d 453 (1984); 42 Pa.C.S. ยง 9721(b); Commonwealth of Pennsylvania Commission on Sentencing, Sentencing Guidelines Implementation Manual at 15. However, we find that the Commonwealth has miscalculated the minimum ...


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