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COMMONWEALTH PENNSYLVANIA v. WALTER MATTIS (04/02/86)

filed: April 2, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
WALTER MATTIS, APPELLEE



Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal, at No. 83-08-3423.

COUNSEL

Suzan E. Willcox, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Patricia M. Dugan, Philadelphia, for appellee.

Cirillo, Montemuro and Popovich, JJ.

Author: Montemuro

[ 352 Pa. Super. Page 145]

This is an appeal by the Commonwealth from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County by which appellee was sentenced to twenty-two months to five years imprisonment followed by five years probation for aggravated assault*fn1 (with credit for approximately eleven months time served), and a consecutive term of five years probation, for possession of an instrument of crime.*fn2 The Commonwealth's sole argument on appeal is that the sentencing court unreasonably deviated from the recommended minimum ranges set forth in the Sentencing Guidelines, 204 Pa.Code § 303.1 et seq.*fn3 We

[ 352 Pa. Super. Page 146]

    agree and, accordingly, vacate the judgment of sentence and remand for resentencing.

"Although the Commonwealth, in seeking to appeal from the discretionary aspects of the sentence imposed in this case, properly initiated the appeal by the filing of a notice as required by Pa.R.A.P. 902, before proceeding to the merits of the issue raised herein, we must first determine whether or not there is a substantial question that the sentence imposed is not appropriate under the Sentencing Guidelines." Commonwealth v. Days, 349 Pa. Super. 188, 192, 502 A.2d 1339, 1341 (1986); see also, Commonwealth v. Fluellen, 345 Pa. Super. 167, 170, 497 A.2d 1357, 1358 (1985); Commonwealth v. Dixon, 344 Pa. Super. 293, 496 A.2d 802 (1985); Commonwealth v. Drumgoole, 341 Pa. Super. 468, 491 A.2d 1352 (1985). As the discussion which follows shall indicate, "it appears that there is a substantial question that the sentence imposed is not appropriate . . . ." 42 Pa.C.S. § 9781(b). We therefore permit the Commonwealth to appeal.*fn4

As required by the Sentencing Guidelines,*fn5 the record before us contains the standard Sentencing Guideline Form. Commonwealth v. Days, supra. Under the offense of aggravated assault (marked "Ag. Ass."), the sentencing court listed the offense gravity score as "7" and the prior record score as "6".*fn6 In addition, in the section provided for the "deadly weapons enhancement",*fn7 the court checked

[ 352 Pa. Super. Page 147]

    the box "yes". Although the form provides boxes for the minimum range, the aggravated range and the mitigated range of sentences set forth in the guidelines, the sentencing court simply indicated the following under the "minimum range" heading:

43-64

12-24

Finally, in section VIII of the form, entitled "Departure Report -- List reasons why sentence departs from the guidelines," the court noted that the instant sentence was appellee's "1st incarceration -- Court believes this sentence [and] not guidelines is appropriate under the circumstances." See also N.T., May 23, 1984, at 51.

Thus, the record before us indicates that the sentencing court considered at least the minimum range under 204 Pa.Code § 303.9(b), which, under the circumstances of this case, calls for 43 to 64 months imprisonment. The court also applied the deadly weapons enhancement section of the Sentencing Guidelines.*fn8 This section provides that "an additional twelve (12) to twenty-four (24) months confinement ' shall be added ' to the sentence prescribed in the guidelines. 204 Pa.Code §§ 303.2(5) and 303.4 (deadly weapons enhancement)." Commonwealth v. Drumgoole, supra, 341 Pa. Superior Ct. at 474, 491 A.2d at 1355 (original emphasis). Thus, under the guidelines, as enhanced by section 303.4, the starting point in calculating the sentence in this case, under the minimum range, was 55 months to 88 months. Although the sentencing court recognized this ...


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