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COMMONWEALTH PENNSYLVANIA v. CONLEY BAILEY (04/27/87)

submitted: April 27, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
CONLEY BAILEY, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Montgomery County, No. 110-82.

COUNSEL

Douglas M. Johnson, Assistant Public Defender, Collegeville, for appellant.

Mary M. Killinger, Assistant District Attorney, Norristown, for Com., appellee.

Wieand, Olszewski and Hoffman, JJ. Olszewski and Hoffman, JJ., file a concurring opinion.

Author: Wieand

[ 368 Pa. Super. Page 620]

Conley B. Bailey was tried non-jury and was found guilty of possession of an instrument of crime, possession of an offensive weapon and criminal conspiracy. On January 10, 1983, he was sentenced to probation for a period of three years. On August 22, 1985, during a hearing held on a charge of probation violation, Bailey stipulated that he had violated the conditions of his probation by committing new offenses. The hearing court revoked the prior sentence of probation and sentenced Bailey to a new probationary period of five years upon condition that he complete an alcohol treatment program. On July 29, 1986, Bailey was again arrested and charged with burglary and related offenses. Another charge of probation violation was leveled against Bailey, and this time the trial court, after hearing, revoked probation and imposed a sentence of imprisonment for not less than two years nor more than five years. A motion to modify this sentence was denied, and Bailey appealed. The only argument which he makes on appeal is that the sentence of imprisonment was excessive.

With respect to appeals challenging the discretionary aspects of sentencing, the legislature has provided at 42 Pa.C.S. § 9781 as follows:

(a) Right to appeal. -- The defendant or the Commonwealth may appeal as of right the legality of the sentence.

[ 368 Pa. Super. Page 621]

[a]n 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 of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.

In Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), the defendant, who had been convicted of various violations of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §§ 780-113(a)(16), (30), was sentenced to pay a fine of $1,000 and to serve a five year term of probation. The Commonwealth appealed. This Court vacated the judgment of sentence and remanded for resentencing on the ground that the sentence was outside the sentencing guidelines and unreasonable. The Supreme Court reversed, holding that it had been error for this Court to consider the merits of the Commonwealth's appeal where the Commonwealth had failed to comply with the mandates of Rule 2119(f). The Court said:

It must first be observed that our rules make a careful distinction between "questions relating to the discretionary aspects of the sentence" and "the issue whether the appellate court should exercise its discretion to reach such question." Pa.R.A.P. 2116. Recognizing this distinction, the language from the Note to Pa.R.A.P. 902 . . . speaks only to the fact that the appellant is to supply his brief, with argument on the merits of the question, at the same time as he provides his concise statement of the reasons relied upon for allowance of appeal. It does not and cannot obviate the need for such a statement.

The procedure outlined in the Note accompanying Rule 902 was published in the interest of maintaining consistency between practice under this section of the Sentencing Code and typical appellate practice in Superior Court, which does not ...


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