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COMMONWEALTH PENNSYLVANIA v. LARRY EASTERLING (02/13/86)

submitted: February 13, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
LARRY EASTERLING



Appeal from the Judgment of Sentence of April 17, 1985 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 84-09-1962-63.

COUNSEL

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

John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellee.

Montemuro, Hoffman and Cercone, JJ.

Author: Hoffman

[ 353 Pa. Super. Page 86]

This is the Commonwealth's appeal from the judgment of sentence imposed on appellee. The Commonwealth contends that the sentence imposed is unreasonable because the lower court erred in (1) sentencing appellee outside the sentencing guidelines, 204 Pa.Code §§ 303.1-303.9, reprinted following 42 Pa.C.S.A. § 9721, when there were no mitigating circumstances to support the deviation from them; (2) sentencing appellee so as to retain jurisdiction over him in order that another judge could place him in a drug and alcohol treatment program; and (3) failing to consider the totality of the circumstances in sentencing appellee. We agree that the sentence is unreasonable and, accordingly, vacate the sentence and remand this case for resentencing.

On August 22, 1984, appellee was arrested and charged with several offenses in connection with an August 15, 1984, burglary of a Philadelphia apartment. He entered an open plea of guilty to burglary and criminal conspiracy charges before the court below on February 26, 1985. On April 17, 1985, the court sentenced appellee to concurrent terms of eleven-and-one-half-to-twenty-three months imprisonment, both to run concurrently to a sentence appellee then was serving. The Commonwealth filed a petition to modify sentence on April 24. See Commonwealth v. Anderson, 304 Pa. Superior Ct. 476, 450 A.2d 1011 (1982) (Commonwealth must comply with Pa.R.Crim.P. 1410, requiring the filing of a motion to modify sentence within ten days

[ 353 Pa. Super. Page 87]

    after the imposition of sentence, before obtaining appellate review of a sentence). The petition was denied on the same day, and this appeal followed.

Initially, we note that the Commonwealth does not have an appeal as of right of the discretionary aspects of a defendant's sentence for a felony or misdemeanor. Section 9781 of the Judicial Code, 42 Pa.C.S.A. §§ 101-9781, provides in pertinent part as follows:

The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under . . . chapter [97, of the Sentencing Code, §§ 9701-9781].

42 Pa.C.S.A. § 9781(b). A notice of appeal, see Pa.R.A.P. 902, operates as a "petition for allowance of appeal." Commonwealth v. Drumgoole, 341 Pa. Superior Ct. 468, 472-73, 491 A.2d 1352, 1353-54 (1985) (citing Pa.R.A.P. 341 note, 902 note). Accordingly, pursuant to § 9781(b), we "must determine whether or not there is a substantial question that the sentence imposed is not appropriate under the [s]entencing [g]uidelines." Id., 341 Pa. Superior Ct. at 473, 491 A.2d at 1354.*fn1

This Court has allowed Commonwealth appeals under § 9781(b) and its nearly identical predecessor that governed the interim sentencing guidelines, see Act of Nov. 26, 1978,

[ 353 Pa. Super. Page 88]

P.L. 1316, No. 319, § 5(d) (the Act), reprinted at 42 Pa.C.S.A. § 2155 historical note, and following id. § 9721, but without discussion as to what constitutes a "substantial question." See Commonwealth v. Dixon, 344 Pa. Superior Ct. 293, 295, 496 A.2d 802, 802-03 (1985) (the Commonwealth's petition for appeal is granted because, "[a]s will appear from the ensuing discussion," the record raises a substantial question); Commonwealth v. Drumgoole, supra, 341 Pa. Superior Ct. at 473, 491 A.2d at 1354 ("[o]ur review of the record convinces us that a substantial question exists in this case"); Commonwealth v. Nixon, 311 Pa. Superior Ct. 450, 452 n. 1, 457 A.2d 972, 973 n. 1 (1983) ("we shall allow an appeal"); Commonwealth v. Love, 295 Pa. Superior Ct. 276, 278, 441 A.2d 1230, 1231 (1982), allocatur denied ("the Commonwealth brought this appeal which we allow"). In Commonwealth v. Frazier, 347 Pa. Superior Ct. 64, 66, 500 A.2d 158, 159 (1985), and Commonwealth v. Hutchinson, 343 Pa. Superior Ct. 596, 597-98, 495 A.2d 956, 957-58 (1985), we noted that the Commonwealth filed its appeals pursuant to § 9781(b), but we nowhere stated that we were accepting the appeals, thus implicitly suggesting that the appeals were taken as of right. See also Commonwealth v. Tomasso, 311 Pa. Superior Ct. 103, 457 A.2d 514 (1983), aff'd, 506 Pa. 344, 485 A.2d 395 (1984) (Commonwealth appeal of sentence imposed under the interim guidelines as unreasonable; no discussion of whether the appeal was properly before the Court). As the plain language of § 9781(b) indicates, however, appeals from the discretionary aspects of a sentence are to be granted at our discretion*fn2 and not as of right.

Section 9781(b) provides for our discretionary review of sentences imposed pursuant to the sentencing guidelines. By considering the ...


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