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COMMONWEALTH PENNSYLVANIA v. DARRYL DARDEN (04/13/87)

submitted: April 13, 1987.

COMMONWEALTH OF PENNSYLVANIA,
v.
DARRYL DARDEN, APPELLANT



Appeal from the Judgment of Sentence entered October 14, 1986 in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 86-05-2005.

COUNSEL

Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.

Kelly, Popovich and Watkins, JJ. Popovich, J., files a dissenting opinion.

Author: Kelly

[ 366 Pa. Super. Page 600]

Appellant, Darryl Darden, petitions for allowance of appeal from the discretionary aspects of sentence. We grant allowance of appeal and affirm judgment of sentence.

On Tuesday, February 25, 1986, appellant and four other young men surrounded and robbed seventy-year-old Minnie Darling, as she was attempting to enter a restaurant in downtown Philadelphia. During the course of the robbery, the victim was thrown through the door of the restaurant and onto the pavement. Appellant and his companions were apprehended as they attempted to flee with the wallet taken from the victim's purse.

On August 5, 1986, appellant entered an open plea of no contest (nolo contendre) to charges of robbery and conspiracy

[ 366 Pa. Super. Page 601]

    after a comprehensive colloquy during which it was correctly explained that a plea of no contest (nolo contendre) "has the same effect as a guilty plea if the Judge accepts it." (N.T. 8/5/86 at 7); see Commonwealth v. Hayes, 245 Pa. Super. 521, 523, 369 A.2d 750, 751 (1976). On October 14, 1986, appellant was sentenced to a term of imprisonment of three and one-half to seven years imprisonment on the robbery conviction and a consecutive seven year term of probation on the conspiracy conviction. No motion to withdraw the plea was filed. A motion to vacate and/or modify sentence was filed and denied. Timely notice of appeal was filed on October 30, 1986. The case is now properly before this Court for disposition. We grant allowance of appeal and affirm.

I.

Appellant's sole contention on appeal is that the sentence imposed on the robbery conviction was an unreasonably harsh deviation from the sentencing guidelines as the minimum sentence imposed was more than twice the highest recommended minimum sentence in the aggravated range of the applicable guidelines. (Appellant's Brief at 2, 5-6). This is a challenge of the discretionary aspects of sentence.

Under Pennsylvania law, neither the defendant nor the Commonwealth may take an appeal as of right from the discretionary aspects of sentence. Rather, "[t]he defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of 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 [the Sentencing Code]." 42 Pa.C.S.A. § 9781(b). Our Supreme Court indicated in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), that three distinct steps must be taken to properly raise a challenge to the discretionary aspects of sentence: there must be a timely notice of appeal (see

[ 366 Pa. Super. Page 602]

Pa.R.A.P. 902 & Note; Pa.R.A.P. 903); the challenge must be set forth in the statement of questions presented (see Pa.R.A.P. 2116(b)); and, the appellant must include in the brief, immediately preceding argument in support of the challenge, a separate, concise statement of the reasons for allowance of appeal under 42 Pa.C.S.A. § 9781(c) (see Pa.R.A.P. 2119(f)). 522 A.2d at 18-19.

In the instant case, timely notice of appeal was filed and appellant's challenge to the discretionary aspects of sentence was set forth in the statement of questions involved. (See Appellant's Brief at 2). Appellant's brief does not contain a separate, concise statement pursuant to Pa.R.A.P. 2119(f) separately delineated by a heading such as "Substantial Question" or "Statement of Reasons for Allowance of Appeal." Nonetheless, though the "Summary of Argument" in appellant's brief does not comply with the letter of Pa.R.A.P. 2119(f), we find that it offers substantial (therefore, sufficient) compliance with the rule to permit limited review as to whether a "substantial question" is raised. Cf. Commonwealth v. Muller, 364 Pa. Super. 346, 350 & n. 2, 528 A.2d 191, 193 & n. 2 (1987).

Appellant's "Summary of Argument" alleges that:

Appellant was convicted of robbery as a third degree felony. If the lower court had noted the presence of specific additional aggravating factors, a sentence in the aggravated range might have been permissible. However, the lower court not only failed to place any such findings on the record (other than appellant's criminal history, which was already accounted for in the prior record score) but it also proceeded to sentence appellant to the statutory maximum amount of imprisonment (3 1/2 to 7 years incarceration). The sentence was more than double the highest sentence recommended by the aggravated sentencing guideline range (12 to 18 months imprisonment). This departure from the sentencing guideline range to such a substantial degree renders the sentence unreasonable, and therefore requires a remand for resentencing.

[ 366 Pa. Super. Page 603]

(Appellant's Brief at 5). (Emphasis supplied). Succinctly, appellant contends that he was sentenced outside the guidelines and that the sentence imposed is unreasonable because: no sufficient aggravating factors were noted; appellant's prior criminal history was considered as an aggravating circumstance even though it was already accounted for in the prior record score; and, the deviation was so substantial to render the sentence unreasonable.

In Commonwealth v. Tuladziecki, supra, our Supreme Court made it clear that our determination as to whether a substantial question was presented was to be made separate and distinct from any review of the merits of the petition. 522 A.2d at 19-20. Consequently, we must accept appellant's assertions of fact as a true and complete statement of the relevant facts for the limited purpose of determining whether appellant has raised the appearance of a substantial question. With this in mind, we find that appellant has raised the appearance of a substantial question that the sentence imposed was outside the guidelines and unreasonable. See 42 Pa.C.S.A. § 9781(c)(3).

We note, however, that the allegation of facts which, if accepted as a true and complete statement of the pertinent facts would establish grounds for vacating the sentence under 42 Pa.C.S.A. § 9781(c), does not entitle the ...


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