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filed: November 2, 1987.


Appeal from Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Monroe County, Nos. 453-1984 and 455-1984.


William K. Sayer, Assistant Public Defender, Stroudsburg, for appellant.

E. David Christine, Assistant District Attorney, East Stroudsburg, for Com., appellee.

Cirillo, President Judge, and Brosky, Rowley, Wieand, Montemuro, Beck, Tamilia, Popovich and Johnson, JJ. Brosky, J., files a dissenting opinion in which Cirillo, President Judge, and Popovich and Johnson, JJ., join. Cirillo, President Judge, and Popovich and Johnson, JJ., join this dissenting opinion.

Author: Wieand

[ 367 Pa. Super. Page 513]

Roy Krum entered pleas of guilty to two charges of burglary. Although these were his first adult offenses, Krum had a lengthy juvenile record. The sentencing court imposed concurrent sentences of not less than four years nor more than eight years, which it refused to modify in response to a petition for reconsideration. On direct appeal, Krum argues (1) that the sentencing guidelines are "in violation of Pennsylvania case law and the Sentencing Code in that they fail to distinguish between the effect of a prior adjudication as a fifteen year old juvenile and a prior conviction as an adult"; and (2) that the sentences constituted an abuse of discretion because Krum did not have a prior adult record.

An examination of the record in the trial court discloses that only the second issue has been preserved for appellate review. The first issue was not raised in the trial court at the sentencing hearing or in the motion to reconsider and modify the sentence. It was raised for the first time after an appeal had been filed in this Court. Appellant's motion for reconsideration of sentence contained as reason therefor only the following:

Defendant requests your Honorable Court to reconsider the sentence in light of the fact that the Court failed to give sufficient consideration to the defendant's young age at the time these incidents occurred and to the defendant's status as a young juvenile at the time of his prior criminal activities as a juvenile. The Court was also not aware of the extent to which the defendant has cooperated with the authorities since his arrest on these charges.

Par. 3, Motion to Reconsider and Modify Sentence.

It is well established that sentencing issues which have not been raised in a motion to modify sentence are waived.

[ 367 Pa. Super. Page 514]

See: Commonwealth v. Duffy, 341 Pa. Super. 217, 221, 491 A.2d 230, 231 (1985); Commonwealth v. Cottman, 327 Pa. Super. 453, 461, 476 A.2d 40, 44 (1984); Commonwealth v. Kuhn, 327 Pa. Super. 72, 83, 475 A.2d 103, 108 (1984). The sentencing guidelines issue which appellant has sought to raise in the instant appeal, even if meritorious, would not render the sentence illegal in the sense that it could not be waived. Compare: Commonwealth v. Reardon, 297 Pa. Super. 193, 443 A.2d 792 (1981). The sentence imposed upon appellant was authorized by the legislature, was within statutory limits, and was not an illegal sentence. The sentence recommended by the guidelines, as the opinion of the sentencing court makes clear, was only one of several factors considered in formulating an appropriate sentence to be imposed upon Roy Krum. If a sentencing court considers improper factors in imposing sentence upon a defendant, the court thereby abuses its discretion, but the sentence imposed is not rendered illegal. Otherwise, every erroneous consideration by a sentencing court will render the sentence illegal in a manner which cannot be waived by a defendant. This is not the law. See: Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1975); Commonwealth v. Bryant, 349 Pa. Super. 358, 503 A.2d 39 (1986); Commonwealth v. Spencer, 344 Pa. Super. 380, 496 A.2d 1156 (1985); Commonwealth v. Sypin, 341 Pa. Super. 506, 491 A.2d 1371 (1985); Commonwealth v. Duden, 326 Pa. Super. 73, 473 A.2d 614 (1984); Commonwealth v. Garrison, 292 Pa. Super. 326, 437 A.2d 407 (1981); Commonwealth v. Graves, 275 Pa. Super. 557, 419 A.2d 41 (1980); Commonwealth v. Cruz, 265 Pa. Super. 474, 402 A.2d 536 (1979); Commonwealth v. Fields, 251 Pa. Super. 287, 380 A.2d 491 (1977); Commonwealth v. Walls, 248 Pa. Super. 335, 375 A.2d 125 (1977), aff'd, 481 Pa. 1, 391 A.2d 1064 (1978); Commonwealth v. Shoemaker, 226 Pa. Super. 203, 313 A.2d 342 (1973), aff'd, 462 Pa. 342, 341 A.2d 111 (1975). Indeed, even issues of constitutional dimensions can be waived. See: Commonwealth v. Boone, supra (appellant's contention that she had been denied due process of law by imposition of minimum and maximum sentence was waived by failure

[ 367 Pa. Super. Page 515]

    to object at sentencing). See also: Commonwealth v. Sessoms, 516 Pa. 365, 368 n. 2, 532 A.2d 775, 782 n. 2 (1987) (invalidity of sentencing guidelines can be waived if not preserved at all stages of adjudication).

In the instant case, appellant could waive and, in fact, did waive a challenge to the authority of the Sentencing Commission to require that prior juvenile adjudications be deemed equivalent to adult convictions for purposes of determining an offender's prior record score.*fn1 He waived this issue by failing to raise it in the trial court at sentencing or in his motion to reconsider and modify the same.*fn2

The second issue argued by appellant was adequately preserved in the trial court. Because it involves the discretionary aspects of sentencing, however, it is necessary that we determine whether there is a sufficiently substantial issue to require review.

The right of appeal from a final judgment of sentence is guaranteed by Article 5, § 9 of the Pennsylvania Constitution. The exclusive jurisdiction to hear such appeals, except in capital cases, is vested in the Superior Court. 42 Pa.C.S. § 742. Such an appeal may generally be taken as of right by filing a notice of appeal with the clerk of the lower court within the time allowed for such appeal. Pa.R.App.P. 902. With respect to appeals challenging the discretionary aspects of sentencing, however, the legislature has provided at 42 Pa.C.S. § 9781(b) as follows:

[ 367 Pa. Super. Page 516]

(b) Allowance of appeal. -- The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be Page 516} 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 this chapter. (Emphasis added).

Pursuant to its authority to prescribe rules governing practice and procedure in the courts, the Supreme Court has promulgated rules to implement this statutory provision. By a note accompanying Pa.R.A.P. 902 the proper procedure to be followed in ...

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