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COMMONWEALTH PENNSYLVANIA v. CARL W. POKORNY (01/26/87)

filed: January 26, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
CARL W. POKORNY, APPELLEE



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, No. CC 8209195.

COUNSEL

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellant.

Joseph G. Kanfoush, Pittsburgh, for appellee.

Cavanaugh, Popovich and Montgomery, JJ. Cavanaugh, J., files a concurring opinion.

Author: Montgomery

[ 360 Pa. Super. Page 386]

This is the companion case to Commonwealth v. Septak, 359 Pa. Super. 375, 518 A.2d 1284 (1986), which was recently filed. In the instant matter the Commonwealth alleges that the trial court erroneously failed to apply the deadly weapon enhancement provision*fn1 of the Sentencing Guidelines to appellee's sentence. The Commonwealth further alleges that the sentence imposed was outside of the Sentencing Guidelines and unreasonable due to the court's failure to apply the aforementioned enhancement provision. We find that the sentencing court erred in failing to apply the deadly weapon enhancement provision for those reasons set forth in Septak, supra, and reverse and remand for resentencing.

We first note that as required by 42 Pa.C.S. § 9781(b), we find that there is a substantial question that the sentence imposed was not appropriate under the Sentencing Guidelines and will permit this appeal by the Commonwealth. Commonwealth v. Mattis, 352 Pa. Super. 144, 146-47, 507 A.2d 423, 424 (1986).

Appellee's pleas of guilty to unlawful restraint*fn2 and criminal conspiracy*fn3 resulted from his participation in the events of November 10th through 12th of 1982, when one Robert Johns was abducted and held for ransom. The record reveals that appellee pointed a loaded gun at the victim. It is also undisputed that the criminal information

[ 360 Pa. Super. Page 387]

    and the Commonwealth's offer of proof during the guilty plea hearing included evidence of appellee's possession of a gun. However, since the Commonwealth did not specifically state during the guilty plea hearing that deadly weapon enhancement would be sought at sentencing, the sentencing court refused to consider application of the enhancement provision. Instead, the court imposed a sentence of four (4) to twenty-three (23) months which was within the minimum range of the recommended guidelines sentence unenhanced by the deadly weapon provision.

For the reasons set forth in Septak, supra, we conclude that the sentencing court erroneously refused to apply the deadly weapon enhancement provision. It is therefore necessary to vacate the sentence and remand for resentencing. Commonwealth v. Drumgoole, 341 Pa. Super. 468, 474-76, 491 A.2d 1352, 1355 (1985).

The Commonwealth also claims that the sentence herein is outside the guidelines and unreasonable as the result of the court's failure to apply the deadly weapon enhancement provision. The Commonwealth supports its assertion by suggesting that this matter is controlled by 42 Pa.C.S. § 9781(c)(3), which requires us to vacate and remand where the sentence is outside the guidelines and unreasonable. The Commonwealth relies upon the wrong subsection of 9781 however, for the court herein erroneously concluded that deadly weapon enhancement should not be applied, but purportedly imposed a sentence of imprisonment within the minimum range of the unenhanced guidelines. The applicable provision is therefore 42 Pa.C.S. § 9781(c)(1), which requires us to vacate and remand where the court purported to sentence within the guidelines but applied the guidelines erroneously.

Recognizing that we reached the reasonableness claim argued in Septak, we find that case to be distinguishable from the instant matter. In Septak the sentencing court indicated ...


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