Appeal from the Judgment of Sentence entered November 13, 1985 in the Court of Common Pleas of Erie County, Criminal Division, at No. 469 of 1981.
David A. Schroeder, Erie, for appellant.
Ernest J. Disantis, Jr., Assistant District Attorney, Erie, for Com., appellee.
Rowley, Del Sole and Johnson, JJ. Rowley, J., agrees that judgment of sentence should be modified, and as modified, affirmed. However, he would deny appellant's petition for leave to appeal on the issue of failure to articulate sufficient reasons. Johnson, J., concurs in the result.
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Appellant entered guilty pleas and was sentenced to a term of imprisonment for not less than ten nor more than 20 years on a charge of robbery. In addition, Appellant
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received consecutive terms of five to ten years on a criminal conspiracy charge and two and one-half to five years for possessing instruments of crime. Appellant's co-defendant was sentenced by a different judge from the same court to a term of four to eight years on the robbery charge and four years consecutive probation on the charge of criminal conspiracy.
Appellant claims the trial court failed to articulate sufficient reasons in support of the sentence. Appellant also contests the disparity of sentences handed down for himself and his co-defendant. Finally, Appellant appeals from the imposition of consecutive sentences for the inchoate offenses of conspiracy and possession of instruments of crime. On this latter assignment of error, Appellant maintains he cannot be convicted of both criminal conspiracy and the possessing offense in that they were committed with a single objective in view.
For the reasons which follow, we affirm Appellants sentence in part and sua sponte amend Appellant's sentence with regard to the inchoate offense of possessing instruments of crime.
The right of appeal from the discretionary aspects of sentencing is neither automatic nor absolute as the allowance of such an appeal rests within the discretion of the Superior Court. (See 42 Pa.C.S.A. § 9781(b)). An appellant who challenges a discretionary aspect of his sentencing shall set forth in his brief a concise statement of the reasons relied upon for the allowance of his appeal. The appellant is further required to present this statement prior to his offer of arguments on the merits of his claim. Pa.R.App.P. 2119(f). A brief by an appellant which fails to contain such a statement is defective. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).
It has been determined that such a defect is procedural and may be overlooked by the Superior Court providing the Appellee does not object to the procedural irregularity. In the instant case, Appellant's brief lacks the concise ...