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COMMONWEALTH PENNSYLVANIA v. FONZA HARRY BLACK (04/21/87)

submitted: April 21, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
FONZA HARRY BLACK, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Northumberland County at No. 83-196.

COUNSEL

Barry F. Feudale, Shamokin, for appellant.

John P. Muncer, Assistant District Attorney, Sunbury, for Com., appellee.

Popovich, Johnson and Hester, JJ. Johnson, J., concurs in the result.

Author: Popovich

[ 366 Pa. Super. Page 427]

This is an appeal from the judgment of sentence which was imposed upon appellant, Fonza Black, after he entered a plea of guilty to robbery (18 Pa.C.S.A. § 3701), false imprisonment (18 Pa.C.S.A. § 2903), and criminal mischief (18 Pa.C.S.A. § 3304). We must modify the sentence in part and deny appellant permission to appeal in part for the reasons herein stated.

The record reveals the following scenario:

On November 9, 1984, appellant received consecutive prison sentences of not less than three (3) nor more than eight (8) years for robbery, not less than one (1) nor more than two (2) years for unlawful restraint and a fine of $100.00 for criminal mischief. An appeal followed, and we remanded the matter for resentencing because the trial court erred in applying the deadly weapons enhancement section of the sentencing guidelines, 204 Pa.Code, Ch. 303, Section 303.4. Commonwealth v. Black, 355 Pa. Super. 369, 513 A.2d 475 (1986).

On August 26, 1986, appellant was resentenced to consecutive terms of two and one-half (2 1/2) to eight (8) years for robbery, one (1) to two (2) years for unlawful restraint, and a fine of $100.00 for criminal mischief. A timely motion for modification of sentence was denied, and this appeal followed.

Appellant raises the following issues: (1) whether the trial court erred in applying deadly weapons enhancement because the court increased appellant's original sentence and violated the double jeopardy clause in resentencing; (2) whether the trial court abused its discretion in unreasonably deviating from the sentencing guidelines by sentencing within the guidelines at the initial sentencing and outside the guidelines upon resentencing; and (3) whether the trial court erred by sentencing and resentencing appellant for the crime of unlawful restraint when appellant entered a plea of guilty to the crime of false imprisonment.

[ 366 Pa. Super. Page 428]

Recently, our Supreme Court addressed the jurisdictional issues surrounding an appeal which raises sentencing issues and said that "[a]ppellate review of sentences is governed statutorily by Subchapter G of the Sentencing Code, 42 Pa.C.S.A. § 9781." Commonwealth v. Tuladziecki, 513 Pa. 508, 510, 522 A.2d 17, 18 (1987). If a sentence is legislatively permitted, the legality of the sentence is not implicated, and the appeal is discretionary. On the other hand, if the ...


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