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COMMONWEALTH PENNSYLVANIA v. BRADLEY E. HARTZ (09/01/87)

filed: September 1, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
BRADLEY E. HARTZ, APPELLANT



Appeal from the Judgment of Sentence dated November 22, 1983, in the Court of Common Pleas, Chester County, Criminal No. 0303-83.

COUNSEL

Heather J. Mattas and Charles M. Nester, Assistant Public Defenders, Pottstown, for appellant.

Stuart B. Suss, West Chester, Assistant District Attorney, for Com., appellee.

Cirillo, President Judge, and Cavanaugh, Brosky, McEwen, Del Sole, Beck, Tamilia, Kelly and Johnson, JJ. Cavanaugh, McEwen and Beck, JJ., join. Cirillo, President Judge, concurs in an opinion in which Brosky and Johnson, JJ., join. Kelly, J., concurs in an opinion. Tamilia, J., dissents in an opinion.

Author: Del Sole

[ 367 Pa. Super. Page 269]

Appellant appeals the judgment of sentence imposed following his guilty plea to charges of Unlawful Restraint, Recklessly Endangering Another Person, Terroristic Threats and Aggravated Assault. The issues raised on appeal relate to sentencing matters. Appellant first alleges five bases for finding the deadly weapons enhancement provisions of the Sentencing Guidelines, 42 Pa.C.S.A. § 9721, 204 Pa.Code Ch. 303, unconstitutional. In addition, he maintains the sentence imposed was excessive; the sentencing judge failed to state upon the record the reasons for the sentence; and, the sentencing judge failed to consider the circumstances of the crime and the history, character and condition of the Appellant. For the following reasons we find we cannot reach the merits of these claims and, therefore, we affirm the judgment of sentence.

Appellant was first sentenced on November 10, 1983. At that time, the court imposed a total sentence of 18 to 36 months incarceration, 7 years probation and a $1,000.00 fine. The court also ordered Appellant to pay the costs of prosecution and to make restitution in the amount of $20.00. On November 17, 1983, Appellant filed a timely Motion to Reconsider and Modify Sentence. The court granted Appellant's motion and on November 22, 1983, it vacated its previous sentence and imposed a sentence modifying the prison term to 16 to 36 months and the probationary period to 5 years. At the close of the second sentencing hearing, Appellant was informed by the court that he had ten days in which to file an application with the court for reconsideration of his sentence. Nevertheless, Appellant failed to file such a petition and, instead, filed an appeal from the November 22nd sentence with this court on December 11, 1983.

This Court has had occasion to consider a similar set of circumstances in Commonwealth v. Cottman, 327 Pa. Super. 453, 476 A.2d 40 (1984). Therein, it was noted:

Appellant correctly filed a motion to modify his original sentence, as required by Pa.R.Crim.P. 1410. The principal

[ 367 Pa. Super. Page 270]

    purpose of this rule is to provide the sentencing court with the first opportunity to modify its sentence and to correct any errors that may have occurred at sentencing. Commonwealth v. Burtner, 307 Pa. Super. 230, 235, 453 A.2d 10, 12 (1982), and cases cited therein. In the absence of such a motion, a defendant may only seek appellate review of the legality of his sentence. Commonwealth v. DeCaro, 298 Pa. Super. 32, 444 A.2d 160 (1982). Failure to present claims of abuse of discretion to the sentencing court constitutes waiver. Commonwealth v. Boyce, 304 Pa. Super. 27, 450 A.2d 83 (1982); Commonwealth v. Dumas, 299 Pa. Super. 335, 445 A.2d 782 (1982).

Although appellant did afford the sentencing court the opportunity to adjust its initial sentence, he failed to provide an opportunity to that court with respect to the amended sentence, which was imposed following the vacation of the initial sentence. The issue raised instantly alleges that error was committed at the second sentencing hearing. Since appellant's initial sentence was vacated and no motion to reconsider appellant's current sentence was filed, this issue is waived.

Id., 327 Pa. Super. at 460-461, 476 A.2d at 44.

For the reasons set forth in Commonwealth v. Cottman, we find waived Appellant's claims of error, with the exception of the constitutionality of § 9721.*fn1 The constitutional questions raised by Appellant are viewed as challenges to the legality of his sentence and are not waived for failure to

[ 367 Pa. Super. Page 271]

    be included in a Motion for Reconsideration. Commonwealth v. Cooke, 342 Pa. Super. 58, 492 A.2d 63 (1985).

Although the constitutional questions raised in this appeal are not waived, for other reasons we are unable to consider these claims. Appellant seeks our review of the constitutionality of the deadly weapon enhancement section of the Sentencing Guidelines. The record makes clear, however, that Appellant was not affected by the potential applicability of § 9721.

Appellant's counsel specifically asked the sentencing court whether it added the enhancement provisions when calculating Appellant's sentence. The court responded:

THE COURT: It's considered. The guideline speaks to enhancement.

Frankly, I don't intend specifically attach it to the sentence that I impose. Well, remember what these charges started out being when we were talking about criminal attempt homicide and kidnapping, and thing like that. I think an eighteen-month period of imprisonment is rather modest under the circumstances, although we appreciate those charges are not before us. They are factual contentions out of which this criminality comes, and I think with that in mind, whether or not we had a weapons enhancement, I can't see a minimum period of certainly any less than sixteen months in any turn of events.

So I rather figure it's in there, but don't intend to separately set it forth in any way because I think whether it existed or not, my sentence would be unchanged. (S.T. 11-22-83 at 4).

Where a person is not prejudicially affected by the statute in the case under review, that individual is not entitled to be heard on the question of the statute's alleged unconstitutionality. Commonwealth v. Samuels, 354 Pa. Super. 128, 146-147, 511 A.2d 221, 230 (1986). In the instant case, the court, by its comments, reveals Appellant suffered no prejudice by operation of the statute.

[ 367 Pa. Super. Page 272]

Because of the factual circumstances in this case, we decline to reach the issue of the constitutionality of § 9721.*fn2 In making this determination we are mindful of the "well established proposition that a court is not to rule on the constitutionality of a statute unless it is absolutely necessary to do so in order to decide the issue before it". Commonwealth v. Samuels, supra.

Judgment of sentence affirmed.

CIRILLO, President Judge, concurring:

I concur in the majority's decision not to disturb the judgment of sentence of sixteen to thirty-six months' imprisonment

[ 367 Pa. Super. Page 273]

    imposed on appellant for unlawful restraint and related crimes. However, I write separately to register my disagreement with the dictum in the majority opinion, and the statements in the dissenting opinion, that appellant has preserved his constitutional challenges to the deadly weapon enhancement provision of the Sentencing Guidelines, 204 Pa.Code § 303.4, reprinted in 42 Pa.C.S.A. § 9721 note (1982), despite his failure to include them in a motion to modify sentence. I believe that my colleagues' statements that a constitutional challenge to a sentencing provision raises the legality of the sentence and hence can never be waived are erroneous, and in need of correction before they lead to every sentencing issue being couched in constitutional terms to avoid the consequences of waiving the issue in the trial court.

The Pennsylvania Supreme Court has clearly held that constitutional issues, even sentencing issues based on the constitution, are waived if not properly raised in the trial court. Commonwealth v. Walton, 483 Pa. 588, 600, 397 A.2d 1179, 1185 (1979) (due process attack on restitution statute waived where not presented to sentencing court); Commonwealth v. Lee, 478 Pa. 70, 73 n. 4, 385 A.2d 1317, 1319 n. 4 (1978) (claim that sentencing by judge other than trial judge violated due process had been waived); Commonwealth v. McConnell, 470 Pa. 312, 368 A.2d 646 (1977) (due process and equal protection challenges to imposition of life sentences without minimum terms had been waived); Commonwealth v. Boone, 467 Pa. 168, 181, 354 A.2d 898, 904 (1975) (due process challenge to imposition of minimum sentence waived where not raised at sentencing); Commonwealth v. Strand, 464 Pa. 544, 548, 347 A.2d 675, 677 (1975) (equal protection challenge to sentencing court's failure to impose minimum sentence waived where not raised at sentencing); Commonwealth v. Piper, 458 Pa. 307, 309-11, 328 A.2d 845, 847 (1974) (same); accord Commonwealth v. Thurmond, 268 Pa. Super. 283, 287, 407 A.2d 1357, 1359 (Hoffman, J.) (Superior Court wouldn't consider constitutional challenge to sentencing court's consideration of defendant's false testifying where only challenge raised below

[ 367 Pa. Super. Page 274]

    was that such reliance was improper on facts of case), allowance of appeal denied, 268 Pa. Super. 283, 407 A.2d 1357 (Pa.1979); Commonwealth v. Rutherford, 252 Pa. Super. 348, 350, 381 A.2d 952, 953 (1977) (claims that sentencing violated due process and right to speedy sentencing waived where not presented to sentencing court); Commonwealth v. Olsen, 247 Pa. Super. 513, 523, 372 A.2d 1207, 1212 (1977) (claim that consecutive sentences violated double jeopardy waived where not raised below), vacated on other grounds, 487 Pa. 499, 410 A.2d 299 (1980); Commonwealth v. Henderson, 234 Pa. Super. 525, 528, 341 A.2d 195, 196-97 (1975) (Hoffman, J.) (equal protection challenge to sentencing statute waived where not raised at sentencing); Commonwealth v. Jefferson, 234 Pa. Super. 337, 338 A.2d 657 (same), allowance of appeal denied, 234 Pa. Super. xxvii, 338 A.2d 657 (Pa.), cert. denied, 423 U.S. 947, 96 S.Ct. 362, 46 L.Ed.2d 281 (1975); see also Commonwealth v. Henderson, 482 Pa. 359, 364-65, 393 A.2d 1146, 1148 (1978) (plurality opinion) (double jeopardy attack on sentence raised in petition for allowance of appeal did not preserve due process challenge which petitioner raised in argument); Commonwealth v. Cherpes, 360 Pa. Super. 246, 266, 520 A.2d 439, 449 n. 2 (1987) (equal protection attack on mandatory fine-enhancement statute waived where not set out in argument section of brief), appeal denied, 515 Pa. 612, 530 A.2d 866 (Pa.1987). The requirement that constitutional sentencing issues be timely raised is merely an extension of the general rule that "[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). In fact, this rule requiring that issues be raised first in the trial court takes on added significance when someone attacks the constitutionality of a statute, because an appellate court should not rule on the constitutionality of a statute unless absolutely necessary to decide the case before it, Commonwealth v. Cacek, 358 Pa. Super. 381, 384, 517 A.2d 992, 993 (1986) (Del Sole, J.); Commonwealth v. Samuels, 354 Pa. Super. 128, 144-45, 511 A.2d 221, 230 (Hoffman, J.), allowance of appeal granted, 513 Pa. 20, 518 A.2d 801 (1986), and where no constitutional

[ 367 Pa. Super. Page 275]

    objection has been raised in the trial court the record usually will be inadequate for purposes of making such a weighty determination. "Thus, it is beyond cavil that this court will not sua sponte raise constitutional questions which have not been framed by the parties. Nor should we address constitutional issues unnecessarily or when not properly presented and preserved in the lower court for our appellate review." Commonwealth v. Barone, 276 Pa. Super. 282, 286, 419 A.2d 457, 460 (1980) (plurality opinion) (en banc) (emphasis added) (citations and footnotes omitted); accord Commonwealth v. Warren, 475 Pa. 31, 35, 379 A.2d 561, 562 (1977) (constitutional challenge

     to robbery statute waived where not raised in trial court); Commonwealth v. Maute, 336 Pa. Super. 394, 408, 485 A.2d 1138, 1145-46 (1984) (Hoffman, J.) (equal protection attack on involuntary deviate sexual intercourse statute waived), allowance of appeal denied, 336 Pa. Super. 394 (Pa.1985); Commonwealth v. Byron, 319 Pa. Super. 1, 4, 465 A.2d 1023, 1024 (1983) (constitutional attack on voluntary intoxication statute waived), allowance of appeal denied, 319 Pa. Super. 1 (Pa.1984); Commonwealth v. Danko, 281 Pa. Super. 97, 101, 421 A.2d 1165, 1167 (1980) (constitutional attacks on prostitution statute waived); Commonwealth v. Ashford, 268 Pa. Super. 225, 231, 407 A.2d 1328, 1330 (1979) (due process challenge to terroristic threats statute waived); Commonwealth v. Paul, 177 Pa. Super. 289, 291, 111 A.2d 374, 375 (dictum) (due process challenge to lotteries statute not preserved where not raised in trial court), allocatur denied, 177 Pa. Super. xxvi, 111 A.2d 374 (Pa.1955).

The majority relies on an oft-stated exception to the rules requiring issue preservation which holds that claims of illegality of sentence can never be waived. See, e.g., Commonwealth v. Gillespie, 512 Pa. 349, 355, 516 A.2d 1180, 1183 (1986) (plurality opinion) (double jeopardy claim); Commonwealth v. Isabell, 503 Pa. 2, 9 & n. 6, 467 A.2d 1287, 1290-91 & n. 6 (1983) (dictum) (questioning rule); Commonwealth v. Norris, 498 Pa. 308, 319 n. 9, 446 A.2d 246, 251 n. 9 (1982) (duplicitous sentences claim); Commonwealth v. Lee, 363 Pa. Super. 405, 526 A.2d 405 (1987)

[ 367 Pa. Super. Page 276]

(failure to impose mandatory minimum sentence on recidivist drunk driver); Commonwealth v. Campbell, 351 Pa. Super. 56, 59-63, 505 A.2d 262, 263-651 (1986) (en banc) (common law merger doctrine); Commonwealth v. Ohlinger, 337 Pa. Super. 437, 440 n. , 487 A.2d 25, 26 n. (1985) (imposition of minimum sentence in violation of Youth Offenders Act, 61 P.S. § 485); Commonwealth v. Britton, 334 Pa. Super. 203, 221, 482 A.2d 1294, 1304 (1984) (en banc) (sentence exceeding statutory maximum), appeal dismissed, 509 Pa. 620, 506 A.2d 895 (1986); Commonwealth v. Zaengle, 332 Pa. Super. 137, 145, 480 A.2d 1224, 1228 (1984) (multiple sentences for single unlawful act), vacated, 508 Pa. 355, 497 A.2d 1330 (1985); Commonwealth v. Riley, 330 Pa. Super. 201, 210, 479 A.2d 509, 514 (1984) (multiple sentences for single conspiracy); Commonwealth v. Duden, 326 Pa. Super. 73, 82, 473 A.2d 614, 619 (assertion that statute prohibited total minimum sentence from exceeding half the maximum of the longest of consecutively imposed sentences) allowance of appeal denied, 326 Pa. Super. 73 (Pa.1984); Commonwealth v. Bossche, 324 Pa. Super. 1, 5, 471 A.2d 93, 95 (1984) (double jeopardy); Commonwealth v. Staples, 324 Pa. Super. 296, 302, 471 A.2d 847, 849 (1984) (separate sentences for murder and connected felony); Commonwealth v. Mathis, 317 Pa. Super. 362, 372, 464 A.2d 362, 367 (1983) (whether statute authorized restitution); Commonwealth v. Mathis, 317 Pa. Super. 226, 229, 463 A.2d 1167, 1169 (1983) (maximum sentence for first-degree misdemeanor imposed where crime rose no higher than second-degree misdemeanor); Commonwealth v. Fulton, 315 Pa. Super. 420, 422 n. 4, 462 A.2d 265, 266 n. 4 (1983) (statutory merger of inchoate offenses); Commonwealth v. Reardon, 297 Pa. Super. 193, 200, 443 A.2d 792, 795 (1981) (term of probation exceeding maximum sentence allowed by law); Commonwealth v. Albertson, 269 Pa. Super. 505, 510 n. 7, 410 A.2d 815, 817 n. 7 (1979) (both minimum and maximum prison terms exceeded statutory limits), allowance of appeal denied, 269 Pa. Super. 505, 410 A.2d 815 (Pa.1980); Commonwealth v. Wilks, 250 Pa. Super. 182, 190 n. 6, 378 A.2d 887, 890 n. 6 (1977) (statutory merger of burglary and

[ 367 Pa. Super. Page 277]

    intended crime); Commonwealth v. Lane, 236 Pa. Super. 462, 465 n. 5, 345 A.2d 233, 234 n. 5 (improper sentencing as repeat offender caused sentence to exceed statutory limits), allocatur denied, 236 Pa. Super xxvi, 345 A.2d 233 (Pa.1975). However, these cases establishing that an illegal sentence cannot be waived all share an element missing from this case: each concerned a claim that the sentence was unlawful per se in that the sentencing court lacked constitutional or statutory power or authority to impose it. In that sense, all these cases involved jurisdictional challenges to the sentences, because without constitutional or statutory authority a court has no jurisdiction to impose a given sentence, and since jurisdictional defects are not subject to waiver, an appellate court can and indeed must address them even if the parties fail to raise them. Commonwealth v. Kozrad, 346 Pa. Super. 470, 472, 499 A.2d 1096, 1097-98 (1985) ("it is required of this court to correct an illegal sentence sua sponte." (emphasis mine)); accord Commonwealth v. Ruffin, 317 Pa. Super. 126, 134, 463 A.2d 1117, 1121 (1983); Commonwealth v. Boerner,

281 Pa. Super. 505, 513 n. 6, 422 A.2d 583, 587 n. 6 (1980) ("When a court takes action beyond the power conferred on it by law (its jurisdiction), its action is a nullity, and objection to it cannot be waived by the defendant. Commonwealth v. Hall, 291 Pa. 341, 354, 140 A. 626, 631 (1928)."), allowance of appeal denied, 281 Pa. Super. 505, 422 A.2d 583 (Pa.1981).

Appellant's constitutional attacks on the deadly weapon enhancement do not call in question the legality of his sentence, because regardless of the validity of these claims the sixteen- to thirty-six-month sentence imposed on him is both constitutional and legal in itself, and, indeed, may be a perfectly valid exercise of the "broad discretion [which the legislature has vested] in the trial court to impose a sentence appropriate to each case which comes before it." Commonwealth v. Tuladziecki, 513 Pa. 508, 515, 522 A.2d 17, 20 (1987). The General Assembly has classified unlawful restraint in Pennsylvania as a misdemeanor of the first degree, see 18 Pa.C.S. § 2902, and has prescribed a maximum

[ 367 Pa. Super. Page 278]

    sentence of five years' imprisonment for such crimes. Id. § 1104(1). Since the minimum term of a prison sentence may not exceed one half the maximum, see 42 Pa.C.S. § 9756(b), the greatest sentence the court could have imposed on appellant was two and a half to five years. The sixteen- to thirty-six-month sentence he received was well within those limits and thus it was a legislatively authorized sentence for the crime; nor was the sentence otherwise illegal or unconstitutional in the sense that it was outside the court's power to impose it. A truly illegal sentence is not one where the trial court simply has abused its discretion, but one that goes beyond any discretionary power granted to the court. Such is not the case with appellant's sentence. Even if we were to uphold each and every one of his constitutional arguments and strike down the deadly weapon enhancement, the sentencing court would not necessarily be prevented from reimposing the same sentence on remand, provided the sentence is otherwise justified on the facts of this case. Cf. Commonwealth v. Goldhammer, 512 Pa. 587, 517 A.2d 1280 (1986) (double jeopardy did not prohibit resentencing in accordance with trial court's original sentencing scheme where appellate court had upset the scheme by discharging several counts), cert. denied, U.S. , 107 S.Ct. 1613, 94 L.Ed.2d 798 (1987). Whether appellant's sentence was indeed a proper exercise of the trial court's discretion in light of the facts and circumstances of this case we need not determine, because, as the majority correctly holds, appellant has waived his claims of abuse of discretion by failing to raise them in a motion to modify sentence.

The proposition that constitutional challenges to a sentencing provision implicate the "legality" of the sentence, and hence cannot be waived, originates in the case of Commonwealth v. Cooke, 342 Pa. Super. 58, 492 A.2d 63, allowance of appeal denied, 342 Pa. Super. 58 (Pa.1985). Cooke involved a constitutional challenge to 42 Pa.C.S. § 9712, which prescribes a mandatory minimum sentence of five years' imprisonment for certain felonies committed with a firearm in visible possession. The court addressed

[ 367 Pa. Super. Page 279]

Cooke's constitutional attack on the statute despite the fact that he had not raised it at sentencing or in a motion to modify sentence, stating "the legality of a sentence can never be waived." 342 Pa. Super. at 68 n. 1, 492 A.2d at 68 n. 1. The court offered no rationale for finding that Cooke's constitutional arguments raised the "legality" of the sentence; nor did the Norris and Fulton cases which it cited support the proposition, since they did not involve constitutional challenges to sentencing statutes. Our court has since followed the Cooke holding without comment in Commonwealth v. Sterling, 344 Pa. Super. 269, 272 n. 2, 496 A.2d 789, 790 n. 2 (1985) (citing Cooke and Bossche); Commonwealth v. Anderson, 345 Pa. Super. 407, 410 n. 1, 498 A.2d 887, 888 n. 1 (1985) (citing Cooke); Commonwealth v. Irving, 347 Pa. Super. 349, 356, 500 A.2d 868, 872 (1985) (citing Norris); Commonwealth v. Gonzales, 350 Pa. Super. 373, 377 n. 5, 504 A.2d 886, 888 n. 5 (1986) (citing Norris and Cooke); and Commonwealth v. Eliason, 353 Pa. Super. 321, 324 n. 3, 509 A.2d 1296, 1298 n. 3 (1986) (citing Cooke). However, with all due respect to Cooke 's author, my learned and admired colleague Judge J. Sydney Hoffman, I believe that Cooke was wrongly decided, and that the court en banc should disavow Cooke and its progeny.

Conceivably a constitutional attack on a sentencing statute could implicate the legality of a sentence imposed under it, if, for example, invalidation of the statute would remove the constitutional or statutory jurisdiction of the trial court to impose the sentence it did. But cf. Commonwealth v. Kuhn, 327 Pa. Super. 72, 83, 475 A.2d 103, 108 (plurality opinion) (constitutionality of sentence requiring church attendance didn't raise illegality that court could raise sua sponte), allowance of appeal denied, 327 Pa. Super. 72 (Pa.1984). However, such was not the case with Cooke's sentencing claims, because even had the court ruled the mandatory sentencing statute unconstitutional, Cooke's five- to ten-year prison term for attempted robbery still would have been a statutorily authorized sentence. See 18 Pa.C.S. § 3701(a)(1)(i)-(iii), (b) (relating to first-degree felony

[ 367 Pa. Super. Page 280]

    robbery); id. § 905(a) (attempt to commit a first-degree felony is a felony of the second degree); id. § 1103(2) (maximum sentence for second-degree felony is ten years).

The jurisdictional nature of the sentencing claims found non-waivable in previous cases distinguishes them from the Cooke line of cases, and from this case as well. In all of the earlier cases, the sentencing claims, if upheld by the appellate court, would have robbed the sentencing court of its jurisdictional basis for imposing sentence, or at least for imposing a sentence of the same length as the one challenged on appeal.

For example, in Norris the supreme court addressed a claim that separate sentences for rape and corrupting a minor arising from the same act violated the defendant's right to be free from double jeopardy. The court found the claim not waived even though not raised in the trial court because it put the "legality" of the sentences in question. 498 Pa. at 319 n. 9, 446 A.2d at 251 n. 9. The authority the court cited for this proposition, Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976), established that multiple sentences for the same crime are "beyond the power of a court imposing sentence," and hence unlawful. 468 Pa. at 330 n. 3, 362 A.2d at 230 n. 3. Justice Manderino, concurring in Walker, further explained that "the issue of double jeopardy is similar to an issue of subject matter jurisdiction. It may be raised at any time even initially on appeal. Constitutionally, no court has jurisdiction to try or sentence a person twice, in violation of the Federal and Pennsylvania Constitutions." Id., 468 Pa. at 336, 362 A.2d at 233 (Manderino, J., concurring) (emphasis mine).

The reason a court has no jurisdiction to impose more then one sentence for the same offense is that the legislature has authorized only one punishment. "It is the province of the legislature to determine the punishment imposable for criminal conduct," Commonwealth v. Wright, 508 Pa. 25, 40, 494 A.2d 354, 361 (1985), aff'd sub nom. McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986); "[i]ndeed, with the abolition of common

[ 367 Pa. Super. Page 281]

    law crimes, the judiciary has no power to fix penalties for criminal offenses unless they have been provided for by the legislature." Commonwealth v. Sutley, 474 Pa. 256, 287, 378 A.2d 780, 796 (1977) (Roberts, J., dissenting) (citation omitted). The double jeopardy prohibition on multiple punishments for the same offense is therefore merely a rule of statutory construction which seeks to "prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). "The intent of the double-jeopardy provisions is . . . to prevent the court from exceeding its legislative authorization by imposing multiple punishments for the same offense." Commonwealth v. Williams, 514 Pa. 124, 131-132, 522 A.2d 1095, 1099 (1987) (emphasis added) (quoting Commonwealth v. Bostic, 500 Pa. 345, 350, 456 A.2d 1320, 1322 (1983)). Thus, the imposition of dual sentences where only one offense has occurred, like the imposition of a sentence without a finding of guilt, see Commonwealth v. Paige, 287 Pa. Super. 133, 142 n. 3, 429 A.2d 1135, 1140 n. 3 (1981), "raise[s] a jurisdictional issue, which is simply another name for a question of whether a court has power to act under a given set of circumstances. Jurisdictional questions are non-waivable and not only may be raised by the court sua sponte, but must be." Commonwealth v. Boerner, 281 Pa. Super. at 515-16 n. 11, 422 A.2d at 588 n. 11 (citations omitted) (emphasis added). As the court went on to explain in Boerner,

     ordinarily a court should not raise issues sua sponte [,] and we do not imply that [ Walker ] stands for the proposition that constitutional issues generally, or even all double jeopardy issues or all sentencing issues, are non-waivable. The mere fact that an issue involves a constitutional right does not mean it should be raised sua sponte. Many double jeopardy claims can be waived. Many types of sentencing errors are also waivable. Under [ Walker ], however, appellant's sentence for both theft and retail theft, when the information charging him with these crimes made out but a single act as the basis

[ 367 Pa. Super. Page 282]

    for both charges, was an illegal sentence, one which is beyond the power of the court below to impose.

We therefore may and must raise it ourselves, even if it has never been raised either in the lower court or on appeal.

Id., 281 Pa. Superior Ct. at 516 n. 11, 422 A.2d at 588-89 n. 11 (citations omitted); accord Commonwealth v. Barnhart, 345 Pa. Super. 10, 33, 497 A.2d 616, 628-29 (1985); Commonwealth v. Fortune, 305 Pa. Super. 441, 444, 451 A.2d 729, 731 (1982); Commonwealth v. Usher, 246 Pa. Super. 602, 607, 371 A.2d 995, 998, allocatur refused, 251 Pa. Super. XXXV (Pa.1977); cf. Bossche (court considered claim that increasing sentence on reconsideration violated double jeopardy despite defendant's failure to file motion to modify sentence in trial court).

Similarly, the Fulton case dealt with a claim that the defendant had been unlawfully sentenced for multiple inchoate offenses designed to culminate in the commission of the same crime. The Crimes Code, 18 Pa.C.S. § 906, explicitly prohibits such multiple convictions, and the court therefore vacated one of the sentences as "illegal" despite the defendant's failure to object at sentencing. Such duplicitous sentences for multiple inchoate offenses " are beyond the power and jurisdiction of the sentencing court and, therefore, can be considered despite our normal rules concerning waiver and sua sponte review." Commonwealth v. Ford, 315 Pa. Super. 281, 296-97 n. 11, 461 A.2d 1281, 1289 n. 11 (1983) (emphasis added); accord Commonwealth v. Watts, 319 Pa. Super. 137, 140, 465 A.2d 1267, 1269, allowance of appeal denied, 319 Pa. Super. 137 (Pa.1983); Commonwealth v. Martinez, 293 Pa. Super. 260, 262, 438 A.2d 984, 984-85 (1981); see also Commonwealth v. Bright, 361 Pa. Super. 261, 522 A.2d 573 (1987).

The common law merger doctrine raises a similar jurisdictional defect in the court's power to impose more than one sentence for a single offense. "[M]ultiple sentences for a single criminal act are unlawful and are beyond the power of the trial court," Commonwealth v. Campbell, 351 Pa. Super.

[ 367 Pa. Super. Page 283]

    at 63, 505 A.2d at 265 (emphasis added); the merger doctrine, like the double jeopardy clause, merely provides a rule of statutory construction for determining how many punishments the legislature has authorized the court to impose for a single criminal act. See Commonwealth v. Williams, 344 Pa. Super. 108, 126, 496 A.2d 31, 41 (1985) (en banc). If multiple sentences merge, the appellate court should raise the issue sua sponte, see Commonwealth v. Neidig, 340 Pa. Super. 217, 224, 489 A.2d 921, 924-25 (1985); Commonwealth v. Vazquez, 328 Pa. Super. 86, 91, 476 A.2d 466, 469 (1984), because the sentences are illegal, and, hence, punishments unauthorized by the legislature. See also Commonwealth v. Hamilton, 339 Pa. Super. 1, 7-8, 488 A.2d 277, 281 (1985) (court sua sponte raised legality of suspended sentence not authorized by Sentencing Code); Commonwealth v. Everett, 277 Pa. Super. 323, 419 A.2d 793 (1980) (court sua sponte raised illegality of alternate sentences proscribed by Sentencing Code); Commonwealth v. Fral, 248 Pa. Super. 560, 562-63, 375 A.2d 383, 383-84 (1977) (illegality of restitution not waived where no statute authorized restitution at the time of sentencing and hence it was beyond court's power to impose), rev'd per curiam on other grounds, 483 Pa. 602, 397 A.2d 1186 (1979) (holding restitution had been authorized as condition of probation); Commonwealth v. Olsen, 247 Pa. Super. at 524, 372 A.2d at 1213 (Spaeth, J., dissenting) ("No court has jurisdiction to impose a sentence beyond the statutory maximum for the crime committed." (emphasis mine)); 42 Pa.C.S. § 9712(c) ("There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) . . . ." (emphasis mine)); 75 Pa.C.S. § 3731(e) ("the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of . . . ." (emphasis mine)).

Perhaps no case from our supreme court illustrates better than Commonwealth v. Walton the distinction between a truly non-waivable illegal sentence and one that, though lawful, involves an impermissible or unconstitutional consideration.

[ 367 Pa. Super. Page 284]

In Walton the supreme court found that Walton had not waived a challenge to an order of restitution premised on the trial court's alleged lack of statutory authority to impose restitution, while at the same time holding that Walton had waived a constitutional sentencing argument. The court said, "Since Walton raised no objections in the trial court, his only basis for appellate attack on the order of probation [with a condition of restitution] was the jurisdictional ground that it lacked legal authority." 483 Pa. at 596, 397 A.2d at 1183 (emphasis added). The court addressed Walton's contention that the trial court lacked authority to impose restitution as a condition of probation, and rejected the attack, holding that the court had been statutorily empowered to grant restitution. Id., 483 Pa. at 593-600, 397 A.2d at 1182-84. However, after disposing of this non-waivable jurisdictional challenge to the trial court's sentencing authority, the supreme court turned to Walton's separate argument that the restitution order in question was arbitrary, and that the statute, if construed to allow it, was overbroad and violative of due process. The court found this constitutional attack on the sentencing statute waived, saying,

As noted previously, however, Walton at his sentencing hearing failed to object to the amount of the order or the appropriateness of the procedure used to ascertain it, although he had the opportunity to do so. Thus, in our view, he has waived these issues. The order was within the authority of the statute and cannot in itself be said to render the statute unconstitutional.

Id., 483 Pa. at 600, 397 A.2d at 1185 (citations omitted).

Here, the court had statutory authority for the sentence imposed on Hartz, and none of his constitutional attacks on the deadly weapon enhancement provision of the Sentencing Guidelines would remove that authority or render the sentence itself illegal or unconstitutional.

Were I in agreement with my Brother Tamilia that the deadly weapon enhancement prescribes a mandatory twelve- to twenty-four-month addition to every sentence

[ 367 Pa. Super. Page 285]

    otherwise suggested by the guidelines, which in some cases might push the sentence beyond the legal limit for the offense, then I would agree that in a case where that happened the sentence itself would be "illegal" and a constitutional challenge to the weapon enhancement would implicate the "legality" of the sentence. However, the guidelines themselves are bound "within the limits prescribed by law," 42 Pa.C.S. § 2154, and this prohibits any guideline sentence from exceeding one half the statutory maximum. See 204 Pa.Code § 303.1(i). In fact, the Pennsylvania Commission on Sentencing anticipated exactly the situation envisioned by Judge Tamilia, and cautioned trial judges that where the twelve- to twenty-four-month deadly weapon enhancement caused the guideline sentence to exceed the longest minimum sentence allowed by statute, the statutory limit would control over the guideline sentence as enhanced. See Commonwealth of Pa. Comm'n on Sentencing, Sentencing Guidelines Implementation Manual 57 (1982); see also Commonwealth v. Lowe, 361 Pa. Super. 343, 348 n. 4, 522 A.2d 614, 617 n. 4 (1987).

The deadly weapon enhancement is "mandatory" only in the sense that the sentencing court must "consider" the guidelines in imposing sentence, 42 Pa.C.S. § 9721(b), and therefore must consider adding twelve to twenty-four months to the guideline sentence for visible possession of a deadly weapon in the commission of the offense. 204 Pa.Code § 303.4. The court, however, can reject the guidelines' recommendation to apply the weapons enhancement just as it can reject any other guideline recommendation in the exercise of its sound discretion. Indeed, the majority in this case finds that the sentencing judge declined to apply the weapon enhancement provision, and this discretionary choice on the part the judge has not led the court to declare the sentence itself "illegal."

Because the Sentencing Guidelines do not prescribe mandatory sentences but merely structure sentencing discretion, they do not affect the legality of a sentence, and issues of compliance with them can be waived just as any other

[ 367 Pa. Super. Page 286]

    issues impinging on the discretionary aspects of a sentence can be waived. See, Commonwealth v. Mease, 357 Pa. Super. 366, 376, 516 A.2d 24, 29 (1986); Commonwealth v. Gallagher, 353 Pa. Super. 426, 453, 510 A.2d 735, 749 (1986) (alternative holding) (Hoffman, J.) (constitutional attack on failure to apply guidelines waived). The Sentencing Code's requirement that a sentencing judge consider the guidelines does not render a sentence imposed without such consideration "illegal," even if we would vacate a sentence for failure to consider the guidelines if the issue were properly raised and preserved in the trial court. The Sentencing Code also requires that a sentencing court state reasons on the record for its sentence, and we may vacate a sentence where the court fails to comply. See 42 Pa.C.S. § 9721(b). It is, in that sense, illegal for the trial court not to give reasons for its sentence, but as long as the sentence itself is legal, the issue may be waived. See Commonwealth v. Whetstine, 344 Pa. Super. 246, 256-57, 496 A.2d 777, 782 (1985); Commonwealth v. Martin, 328 Pa. Super. 498, 477 A.2d 555 (1984) (en banc); Commonwealth v. Tolassi, 303 Pa. Super. 177, 449 A.2d 636, allowance of appeal denied, 303 Pa. Super. 177 (Pa.1982). The Pennsylvania Rules of Criminal Procedural require the sentencing court in many cases to order a presentence investigation report or place his reasons on the record for dispensing with one. Pa.R.Crim.P. 1403(A). It is in that sense "illegal" for a sentencing judge to fail to order a report or state his reasons for not ordering one, and a defendant can obtain resentencing on this basis if he properly preserves the issue. See e.g., Commonwealth v. Carter, 336 Pa. Super. 275, 485 A.2d 802 (1984). However, if the sentence is legislatively authorized, the absence of such a report does not make the sentence itself an "illegal" sentence, and if appellant does not raise the issue both in the sentencing court and on appeal, he waives the issue. Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980) (plurality opinion); Commonwealth v. Stockard, 346 Pa. Super. 263, 499 A.2d 598 (1985) (plurality opinion); Tolassi. Similarly, the consideration of an illegal factor in sentencing, or the failure to consider a factor that

[ 367 Pa. Super. Page 287]

    should have been considered, does not render the sentence illegal, and may be waived. See, e.g., Commonwealth v. Preston, 488 Pa. 311, 319 n. 3, 412 A.2d 524, 528 n. 3 (1980) (alleged denial of allocution and improper consideration of juvenile adjudications apparently waived where not raised at sentencing); Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978) (sentencing under misapprehension about the law waived where not raised below); Commonwealth v. Shoemaker, 462 Pa. 342, 341 A.2d 111 (1975) (per curiam) (alleged improper consideration of arrest record waived); Commonwealth v. Boyce, 304 Pa. Super. 27, 450 A.2d 83 (1982) (alleged excessiveness of sentence waived); Commonwealth v. Ellison, 293 Pa. Super. 329, 439 A.2d 136 (1981) (failure to consider statutory sentencing factors did not make sentence "illegal," defendant waived it by not raising in motion to modify sentence).

Similarly, here appellant argues that constitutional considerations require that the sentencing court not consider the twelve- to twenty-four-month sentence enhancement provided by section 303.4 of the Sentencing Guidelines. Were appellant correct in his arguments, and had he raised them properly below, we would be justified in vacating a sentence that took the deadly weapon enhancement into account. However, again, that would not make the sentence itself unlawful or unconstitutional, because the sentence is within the limits established by the General Assembly and is not, per se, an unconstitutional sentence.

As in Cooke, the merits of appellant's constitutional attacks on the deadly weapon enhancement do not render his sentence illegal, because the legislature has clearly authorized such a sentence as within the permissible bounds of the sentencing court's discretion for the crime which appellant committed. It is not the sentence which appellant argues is illegal, but a particular feature of the sentencing guidelines which allegedly offends the constitution. He should not be excused from failing to raise his constitutional arguments in the sentencing court, the same as any other

[ 367 Pa. Super. Page 288]

    argument attacking the laws of the Commonwealth on constitutional grounds must first be raised below.

The consequence of the majority's determination that a challenge to the constitutionality of a sentencing statute is never waived is that this court in every case must raise sua sponte whatever constitutional challenges there might be to the statute or guideline under which the defendant was sentenced, or at least we must do so whenever we cannot avoid the issue as the majority does in this case by finding that the alleged unconstitutionality of the sentencing law did not prejudice the defendant. If constitutional challenges are not waived by failure to raise them below, then it necessarily follows that they are not waived even if not raised in our court, cf. Commonwealth v. McCabe, 242 Pa. Super. 413, 420, 364 A.2d 338, 342 (1976) (Hoffman, J., dissenting), aff'd per curiam, 479 Pa. 273, 388 A.2d 323 (1978), and we should and indeed must raise such issues whether or not the appellant raises them on appeal.

The answer to this unwieldy and impossible result, which I am sure the majority does not intend, is to return to a definition of "illegality" of sentence which predated Cooke, in which this court for the first time departed from a long line of cases holding to the contrary and found that a constitutional sentencing issue could not be waived. The principle we should reaffirm is that an argument does not implicate the "legality" of the sentence unless it attacks the jurisdiction or power of the sentencing court to impose the sentence at issue. Because appellant's constitutional challenges to the deadly weapons enhancement do not affect the legality of his sentence, I would find these challenges, as well as the claims of excessiveness and inadequate reasons, waived for not being presented in a motion to modify. Further, based on my view that all appellant's issues go to the discretionary aspects of his sentence, I would quash his appeal for failure to properly petition for allowance of appeal from the discretionary aspects of sentence. See Tuladziecki; Commonwealth v. Hawthorne, 364 Pa. Super. 125, 527 A.2d 559 (1987) (quashing Commonwealth's appeal

[ 367 Pa. Super. Page 289]

    questioning trial court's refusal to apply deadly weapon enhancement); Commonwealth v. Grove, 363 Pa. Super. 328, 526 A.2d 369 (1987) (quashing appeal alleging excessiveness); Commonwealth v. Thomas, 363 Pa. Super. 348, 526 A.2d 380 (1987) (quashing appeal alleging inadequate reasons for sentence).

KELLY, Judge, concurring:

I concur in the result reached by the majority but not its reasoning. I write separately to express my reasoning and to address issues raised by the separate opinions in this case.

I.

I cannot agree with the majority's conclusion that appellant lacks standing to challenge the constitutionality of the deadly weapon enhancement provision because he was not adversely affected by its application. The trial court was required to consider the guidelines, state its reasons for the sentence imposed, and explain on the record any deviation from the applicable standard minimum range. 42 Pa.C.S.A. § 9721(b); 204 Pa.Code §§ 303.1(a, b & h), 303.3(2); see Commonwealth v. Stevens, 349 Pa. Super. 310, 503 A.2d 14 (1986); Commonwealth v. Royer, 328 Pa. Super. 60, 476 A.2d 453 (1984). Assuming arguendo that the provision was unconstitutional, I would find that the consideration of the less favorable enhanced guideline sentence and the failure to consider the more favorable unenhanced guideline sentence constitutes sufficient prejudice to give appellant standing to challenge the provision. I do not find that the prejudice is removed by the simple expedient of declaring that had the guidelines been calculated otherwise, the sentence would still have been the same. Cf. Commonwealth v. Johnakin, 348 Pa. Super. 432, 438, 502 A.2d 620, 623 (1985) (despite the sentencing court's anticipatory statement explaining reasons for sentencing outside the guidelines if calculation of guidelines was found to be erroneous, the

[ 367 Pa. Super. Page 290]

    panel was not pursuaded that necessity of remand was precluded). I note that in Commonwealth v. Dickison, 334 Pa. Super. 549, 553, 483 A.2d 874, 876 (1984), a panel of this Court held that error in the application of guideline provisions was not rendered harmless by the fact that the same sentence could have been imposed had the guidelines been correctly applied. Finally, I note that in Commonwealth v. Samuels, 354 Pa. Super. 128, 161-62, 511 A.2d 221, 238-39 (1986) (upon which the majority relies) a panel of this Court vacated sentence and remanded for resentencing when it found that the prior misdemeanor conviction enhancement provision was unconstitutional and that application of the provision prejudiced appellant by improperly increasing the guideline ranges from which the court determined the applicable guideline sentence. I find no material distinction between the prejudice alleged in the instant case and that previously recognized by this Court as being sufficient to give standing to challenge similar guideline provisions.

II.

Nonetheless, I am persuaded by President Judge Cirillo's exhaustive review of the waiver doctrine that appellant's challenges to the constitutionality of the deadly weapon enhancement provision were waived by appellant's failure to raise and preserve the issues in the trial court. I, too, would disavow Commonwealth v. Cooke, 342 Pa. Super. 58, 492 A.2d 63 (1985). I agree that non-jurisdictional challenges to sentence are waivable. Thus, I would find appellant's constitutional challenges to the deadly weapon enhancement to also have been waived by appellant's failure to file a second motion to modify after the original sentence was vacated and a new sentence was imposed. See Commonwealth v. Cottman, 327 Pa. Super. 453, 476 A.2d 40 (1984).

I cannot agree, however, with President Judge Cirillo's statement that:

The court, however, can reject the guidelines' recommendation to apply the weapons enhancement just as it can

[ 367 Pa. Super. Page 291]

    reject any other guideline recommendation in the exercise of its sound discretion.

Concurring Opinion by Cirillo, P.J., supra, 367 Pa. Superior Ct. at 273, 532 A.2d at 1141. The sentencing court does not have discretion to disregard the deadly weapon enhancement provision in determining the applicable guideline sentence. See Commonwealth v. Pokorny, 360 Pa. Super. 384, 388-89, 520 A.2d 511, 513 (1987); Commonwealth v. Septak, 359 Pa. Super. 375, 380-81, 518 A.2d 1284, 1286 (1986); Commonwealth v. Johnakin, supra; Commonwealth v. Drumgoole, 341 Pa. Super. 468, 475, 491 A.2d 1352, 1355 (1985). In Commonwealth v. Johnakin, supra, a panel of this court explained:

While we may affirm a sentence that is outside the guidelines provided it is reasonable, 42 Pa.C.S.A. § 9781(c)(3), it is imperative that the sentencing court determine the correct starting point in the guidelines before sentencing outside of them.

502 A.2d at 603. See also Commonwealth v. Drumgoole, supra, 491 A.2d at 1355; Cf. Commonwealth v. Maleno, 348 Pa. Super. 426, 430-31, 502 A.2d 617 (1985) (prior record scores and offense gravity scores are not themselves modifiable at the discretion of the sentencing court). In determining the applicable guideline sentence, the sentencing court may not elect to disregard any of the provisions of the guidelines. It is only after the guideline sentence has been correctly determined and properly considered that a sentencing court may elect to deviate from the guidelines based upon reasonable grounds set forth on the records.

III.

Finally, I feel compelled to address one issue raised in Judge Tamilia's dissenting opinion. The deadly weapon enhancement provision in effect at the date of sentencing in the instant case provided in pertinent part:

When the court determines that the defendant or an accomplice possessed a deadly weapon, as defined in 18 Pa.C.S.A. § 2301 (relating to definitions), during the commission

[ 367 Pa. Super. Page 292]

    of the current conviction offense; at least 12 months and up to 24 months shall be added to the guideline sentence which would otherwise have been imposed.

204 Pa.Code § 303.4(a). (Emphasis added). Seizing upon the emphasized portion of the statute above, the dissent reasons:

However, herein lies the crucial distinction between the provision in Wright and the provision before us; the mandatory sentence provision requires a minimum sentence within the term of imprisonment set by legislation, whereas the Guidelines Weapon Enhancement section adds to the guideline sentence and therefore may exceed the term of imprisonment mandated by the legislature. Taylor, supra. The fact that the guidelines, in some instances, go beyond the statutory maximum, and section 303.1(i) provides the sentence imposed should not exceed the maximum time permitted by statute in those cases, offers no relief. As indicated below, the enhancement is added to the sentence, which would have been imposed and, in many cases, will result in a sentence beyond the statutory maximum, even if the range is limited to ...


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