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COMMONWEALTH PENNSYLVANIA v. HAROLD PLASTERER (03/30/87)

submitted: March 30, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
HAROLD PLASTERER, APPELLANT



Appeal from the Judgment of Sentence of November 12, 1986 in the Court of Common Pleas of Dauphin County, Criminal Division, at Nos. 1255, 1255 A, 1255B, 1255C C.D. 1986.

COUNSEL

Federick W. Ulrich, Assistant Public Defender, Harrisburg, for appellant.

Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Com.

Brosky, Del Sole, and Hoffman, JJ.

Author: Hoffman

[ 365 Pa. Super. Page 191]

This is an appeal from the judgment of sentence for four counts of unlawful delivery of a controlled substance, 35 P.S. § 780-113(f)(1.1), and two counts of criminal conspiracy. Appellant contends that his sentence was excessive. For the reasons that follow, we vacate the judgment of sentence and remand for resentencing.

Appellant pled guilty to the above-stated charges following a hearing on September 24, 1986. The offense of unlawful delivery of a controlled substance is graded as a felony and carries an offense gravity score of four. See Sentencing Guidelines, 204 Pa.Code § 303.8(c)(3), reprinted following 42 Pa.C.S.A. § 9721. He was assigned a prior record score of zero. See Sentencing Hearing, N.T. November 12, 1986 at 7. The recommended ranges for sentencing

[ 365 Pa. Super. Page 192]

    that correspond to these scores are the following: standard range -- zero-to-twelve months; aggravated range -- twelve-to-eighteen months; mitigated range -- non-confinement. 204 Pa.Code § 303.9(b). Appellant was sentenced to four consecutive two-to-five-year terms of imprisonment for the four counts of unlawful delivery of a controlled substance, and two two-to-five-year terms of imprisonment for conspiracy to run concurrently with the other sentences. He also was fined $10,000 and ordered to pay $3,300 restitution. Appellant filed a motion to modify his sentence alleging that it was excessive. His motion was denied, and this appeal followed.

Initially, we note that a defendant does not have an appeal as of right from the discretionary aspects of his or her sentence for a felony or misdemeanor. Section 9781 of the Sentencing Code, 42 Pa.C.S.A. §§ 9701-9781, provides in relevant 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 a 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 this chapter.

Id. § 9781(b). The notice of appeal, see Pa.R.A.P. 902, operates as a "petition for allowance of appeal." See Pa.R.A.P. 341 note; Pa.R.A.P. 902 note. See also Commonwealth v. Drumgoole, 341 Pa. Superior Ct. 468, 472-73, 491 A.2d 1352, 1353-54 (1985). "In effect, the filing of the 'petition for allowance of appeal' contemplated by [§ 9781] is deferred by these rules until the briefing stage . . . ." Pa.R.A.P. 902 note. Pa.R.A.P. 2119(f) provides as follows:

An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects ...


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