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COMMONWEALTH PENNSYLVANIA v. JAMES DONALD FRIES (02/09/87)

filed: February 9, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES DONALD FRIES, APPELLANT



Appeal from the Judgment of Sentence in the Court of Common Pleas of Bradford County, Criminal Division, No. 83-2128 CA.

COUNSEL

Susan E. Hartley, Athens, for appellant.

Daniel J. Barrett, Athens, for appellee.

Wickersham, Rowley and Tamilia, JJ.

Author: Tamilia

[ 362 Pa. Super. Page 166]

This is an appeal from judgment of sentence entered after a jury convicted appellant of various offenses including kidnapping, rape, involuntary deviate sexual intercourse, simple assault, theft and burglary. These charges arose from an incident wherein appellant kidnapped a minor female and held her captive in the woods for three days, forcing her to undergo repeated sexual assaults.

Appellant raises seventeen (17) issues for our review. After a thorough review of the record, the parties' briefs, the lower court opinion, and the relevant case law, we must conclude that the lower court was correct in its analysis and resolution of these issues and find that they are without merit. We will, however, address appellant's arguments dealing with sentencing as the lower court provided no basis upon which we are able to rely in resolving those issues.

Appellant was sentenced to a minimum of sixty-four (64) years and a maximum of one hundred and sixty-four (164) years imprisonment. Individually the sentences were as follows: three (3) counts of rape -- eight (8) to twenty (20) years, each to run consecutively; one (1) count of kidnapping -- six (6) to twenty (20) years, to run consecutively; four (4) counts of involuntary deviate sexual intercourse -- eight (8) to twenty (20) years, each to run consecutively; one (1) count of terroristic threats -- one (1) to two (2) years to run consecutively; and one (1) count of simple assault -- one (1) to two (2) years to run consecutively. Three burglary sentences of four (4) to twenty (20) years were to run consecutively to each other but concurrent to the offenses against the person. Sentences on offenses involving a second victim were also set to run concurrent with the sentences imposed for offenses against the primary victim. In addition to the aforementioned sentences, appellant also received numerous concurrent sentences which are not at issue in the instant appeal.

Appellant now contends the lower court erred by: 1) relying upon impermissible considerations in formulating

[ 362 Pa. Super. Page 167]

    his sentence; 2) incorrectly applying the sentencing guidelines; 3) failing to state sufficient reasons for the sentence on the record; and 4) imposing a sentence that is manifestly excessive.

Generally, we note that sentencing is a matter within the sound discretion of the sentencing judge and a sentence will not be disturbed by an appellate court absent manifest abuse. A sentence must either exceed the statutory limits or be manifestly excessive to constitute an abuse of discretion. Commonwealth v. White, 341 Pa. Super. 261, 491 A.2d 252 (1985). A sentencing judge's discretion must be accorded great weight as he is in the best position to weigh various factors such as the nature of the crime, the defendant's character, and the defendant's displays of remorse, defiance, or indifference. Commonwealth v. Duffy, 341 Pa. Super. 217, 491 A.2d 230 (1985).

Keeping these principles in mind, we now turn to appellant's assertion that the sentencing court relied upon impermissible considerations in formulating his sentence. Specifically, appellant takes issue with the sentencing court's statement that its reasons for imposing the sentence included appellant's "horrendous prior criminal record, including prior sexual offenses and offenses involving minors." (S.T., 4/22/85, p. 36). Appellant claims he has previously pled guilty to only one offense of corruption of minors and only one offense of rape; thus the use of the word "offense" in the plural form implied reliance by the court upon arrests which did not result in convictions, which is error. The court acknowledged and corrected this misstatement, however, when it noted during appellant's argument on his motion to modify sentence that while appellant had been arrested on other counts of rape and involuntary deviate sexual intercourse, those charges had been dismissed by the Commonwealth. (S.T. 5/17/85, p. 13).

While it is true that imposition of a criminal sentence based upon misinformation contravenes due process of law, Commonwealth v. Puchalski, 310 Pa. Super. 199, 456 A.2d 569 (1983), in the case sub judice, the sentencing

[ 362 Pa. Super. Page 168]

    judge noted his own misstatement and subsequently corrected himself. Furthermore, it is not improper for a court to consider a defendant's prior arrests which did not result in conviction, as long as the court recognizes the defendant has not been convicted of the charges. Commonwealth v. Johnson, 333 Pa. Super. 42, 481 A.2d 1212 (1984).

Appellant further contends the court incorrectly calculated his prior record score pursuant to the sentencing guidelines. The lower court calculated appellant's prior record score as a six (6) based upon appellant's prior convictions of fifteen counts of burglary, one count of rape, one count of theft and one count of corruption of minors. Appellant argues that his prior record score is a three (3) because at the sentencing proceedings for his prior crimes, the court treated the crimes as a "spree" and sentenced accordingly.

42 Pa.C.S.A. § 9721, 204 Pa. Code § 303.7(c) provides:

Prior multiple convictions and adjudications of delinquency for offenses arising out of the same criminal transaction for which concurrent or consecutive sentences were imposed are scored as a single conviction equal to the statutory classification of the most serious conviction offense. Prior multiple convictions and adjudications of delinquency arising out of separate criminal transactions are scored as separate convictions, and each is computed in the prior record score.

Appellant claims that his prior convictions arose out of one transaction and thus, only the most serious conviction, the rape, is counted, which would ...


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