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COMMONWEALTH PENNSYLVANIA v. EARL B. WILKINS (01/06/88)

SUPERIOR COURT OF PENNSYLVANIA


filed: January 6, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
EARL B. WILKINS, APPELLEE. COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. EARL B. WILKINS, APPELLANT

Appeal from the Judgment of Sentence of February 4, 1987, in the Court of Common Pleas of Philadelphia County, Criminal No. 85-10-1406.

COUNSEL

Hugh Burns, Jr., Assistant District Attorney, Philadelphia, for Com., appellant (at 708) and appellee (at 943).

Jeffery Shender, Assistant Public Defender, Philadelphia, for Wilkins, appellee (at 708) and appellant (at 943).

Cirillo, President Judge, and Wieand and Olszewski, JJ. Dissenting statement by Wieand, J.

Author: Olszewski

[ 369 Pa. Super. Page 468]

These are appeals from the judgment of sentence entered after the trial court found appellant-Wilkins guilty of aggravated assault and possession of an instrument of crime. Appellant-Commonwealth presents one issue for our review:

[ 369 Pa. Super. Page 469]

    whether the trial court abused its discretion by imposing a standard-range sentence under the sentencing guidelines.*fn1 In his cross-appeal, appellant-Wilkins presents two issues for our review: (1) whether the sentencing guidelines were adopted in violation of the bicameral consideration and gubernatorial presentment provisions of the Pennsylvania Constitution and the separation of powers doctrine; and (2) whether the deadly weapon enhancement provision*fn2 of the sentencing guidelines is unconstitutional. For the reason stated below, we must vacate Wilkins's sentence and remand for resentencing.

Following a bench trial, the trial court found Wilkins guilty of aggravated assault and possession of an instrument of crime. Post-verdict motions were filed and denied. Wilkins was then sentenced to 28 to 56 months' imprisonment.*fn3 The Commonwealth and Wilkins each filed a petition to reconsider sentence. Both petitions were denied and both parties subsequently appealed to the trial court, which dismissed the appeals. The Commonwealth and Wilkins both filed timely appeals to this Court which have been consolidated.

[ 369 Pa. Super. Page 470]

With respect to Wilkins's appeal, Wilkins first contends that the sentencing guidelines were adopted in violation of the bicameral consideration and gubernatorial presentment provisions of the Pennsylvania Constitution and the separation of powers doctrine. Wilkins, however, has failed to preserve this issue for our review. Wilkins waived this issue by failing to raise it in the trial court at sentencing or in his petition to reconsider sentence. See Page 470} Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987).

Wilkins's next contention is that the deadly weapon enhancement provision of the sentencing guidelines is unconstitutional. An examination of the record reveals that this issue was raised in the trial court*fn4 and, consequently, is properly before us for review.*fn5 See N.T. 12/22/86 at 56.

[ 369 Pa. Super. Page 471]

In light of our Supreme Court's recent invalidation of the sentencing guidelines in Sessoms, supra, we are constrained to find that the trial court acted improperly when it gave appellant an enhanced sentence pursuant to the deadly weapon enhancement provision of the sentencing guidelines. See Commonwealth v. Taylor, 516 Pa. 21, 531 A.2d 1111 (1987) (in view of recent invalidation of sentencing guidelines, trial court properly refused to apply the deadly weapon enhancement provision of the sentencing guidelines).

Accordingly, the judgment of sentence is vacated and the matter is remanded for resentencing.*fn6 Jurisdiction is relinquished.

[ 369 Pa. Super. Page 472]

WIEAND, Judge, dissenting:

I respectfully dissent. I find no abuse of the sentencing court's discretion and, therefore, would affirm the judgment of sentence.


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