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COMMONWEALTH PENNSYLVANIA v. PARRISH MULLER (06/18/87)

filed: June 18, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
PARRISH MULLER, APPELLANT



Appeal from the Judgment of Sentence in the Court of Common Pleas of Erie County, Criminal division, No. 1775 of 1985.

COUNSEL

Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.

Michael R. Cauley, Assistant District Attorney, Erie, for Com., appellee.

Rowley, Del Sole and Tamilia, JJ. Del Sole, J., concurs.

Author: Tamilia

[ 364 Pa. Super. Page 348]

On February 18, 1986, appellant pled guilty to two charges of possession with intent to deliver marijuana.*fn1 Appellant was sentenced, on April 2, 1986, by the Honorable Shad Connelly, on the first drug charge to pay costs, restitution, a fine of $100 and to serve a period of eighteen (18) months to thirty-six (36) months incarceration. On the second charge, appellant was sentenced to pay costs, a $500 fine, restitution and to serve three (3) years consecutive probation. A timely motion to modify sentence was filed by appellant and denied on April 10, 1986. Appellant now brings this timely appeal to that denial.

Appellant raises the following question on appeal: "[w]hether the lower court abused its discretion when it failed to give adequate weight to mitigating factors at sentencing and thereby imposed an excessive sentence while also failing to state adequate reasons for the sentence on the record?" Brief for Appellant at 3. Although this statement of the question involved on appeal appears to be couched as a single question, it in fact poses two issues for our review. First, whether the court abused its discretion by failing to give adequate weight to "mitigating factors" at sentencing, and second, whether the sentencing court failed to state adequate reasons for the sentence on the record requiring us to vacate the sentence and remand.

We find that this second issue is not properly before us and is waived due to appellant's failure to raise this issue in his motion to modify sentence. Procedural sentencing issues, such as appellant's insufficient-reasons-on-the-record claim, are waived if not properly preserved and presented below. Commonwealth v. Whetstine, 344 Pa. Super. 246,

[ 364 Pa. Super. Page 349496]

A.2d 777 (1985); Commonwealth v. Brown, 342 Pa. Super. 249, 492 A.2d 745 (1985); Commonwealth v. Martin, 328 Pa. Super. 498, 477 A.2d 555 (1984). However, since appellant's first issue regarding the trial court's weighing of mitigating factors was presented in appellant's motion to modify, we will address it.

Appellant contends the court abused its discretion by failing to give adequate weight to mitigating factors at sentencing. Based on the recent Supreme Court of Pennsylvania case of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), and our case of Commonwealth v. Thomas, 363 Pa. Super. 348, 526 A.2d 380 (1987) (applying Tuladziecki), we must analyze whether or not appellant has properly presented this issue for appeal.

As in Tuladziecki, notice of appeal under Pa.R.A.P. 902 operates as a "petition for allowance of appeal" which is required by 42 Pa.C.S. ยง 9781(b). The briefing stage must then deal with the appropriateness of the appeal. (Comments to Rule 902). There, the question of appropriateness is handled in the usual manner, first by alleging any question relating to the discretionary aspect of the appeal in the "statement of question involved" required by Pa.R.A.P. 2116(a) and (b). This was done in this case by appellant stating:

A. Whether the lower court abused its discretion when it failed to give adequate weight to mitigating factors at sentencing and thereby imposed an excessive sentence while also failing to state ...


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