Appeal from the Judgment of Sentence entered September 12, 1984, in the Court of Common Pleas of Philadelphia County, Criminal No. 83-07-2223.
Hugh Burns, Jr., Assistant District Attorney, Philadelphia, for Com., appellant.
Dale G. Larrimore, Philadelphia, for appellee.
Rowley, Kelly and Watkins, JJ. Rowley, J., files dissenting statement.
[ 372 Pa. Super. Page 148]
The Commonwealth appeals from a sentence of "time in" (four months) to twenty-three months imposed upon appellee Charles Felix, Jr., following his conviction in a bench trial of burglary and theft. The Commonwealth argues that the trial court abused its discretion by unreasonably sentencing appellee below the applicable mitigated minimum range. Despite the subsequent invalidation of the sentencing guidelines, we find that: the appearance of a substantial question as to the appropriateness of the sentence
[ 372 Pa. Super. Page 149]
imposed, considering the Sentencing Code as a whole, is presented; the gravamen of the Commonwealth's challenge to the discretionary aspects of sentence is that the sentence imposed is excessively lenient under the circumstances; and, the trial court did abuse its discretion by imposing an excessively lenient sentence. We vacate judgment of sentence and remand for resentencing.
The pertinent facts and procedural history may be summarized as follows. Appellee circulated flyers advertising his willingness to complete small home repairs as an independent contractor (handyman). Michael and Rene Klein hired appellee to repair their back door. After the repair work was done and while the Kleins were not home, their home was burglarized. A neighbor reported seeing appellee return to the Klein residence during the time period when the burglary occurred. A warrant was issued to search appellee's residence and a gold necklace was discovered which was identified as being one of the items taken in the burglary.
A bench trial was conducted on January 5, 1984. Appellee claimed the gold necklace was his and not the one stolen from the Kleins. Appellee also presented an alibi defense. Nonetheless, appellee was convicted of burglary and theft. Post-verdict motions were filed and denied. On May 10, 1984, the trial court sentenced appellee to two concurrent sentences of "time-in" (four months) to twenty-three months imprisonment.
On May 17, 1984, the Commonwealth filed a timely motion for reconsideration of sentence. The Commonwealth contended that the sentence was unreasonable in that: it was substantially below the applicable mitigated minimum range; mitigating circumstances were negligible; appellee's extensive criminal record including 21 arrests, 13 convictions, and several parole and probation violations were not fully reflected in the prior record score computation and therefore constituted a countervailing aggravating factor;
[ 372 Pa. Super. Page 150]
and, the psychiatric evaluation indicated that appellee's prognosis for "adequate adjustment" was "marginal at best." On May 17, 1984, sentence was vacated pending consideration of the Commonwealth's motion. Following a brief hearing on September 12, 1984, the Commonwealth's motion for reconsideration was denied and sentence was reinstated. Timely notice of appeal was filed and the case is now properly before us for disposition.
On appeal, the Commonwealth contends that the sentence imposed is excessively lenient and constitutes an unreasonable deviation from the applicable guideline ranges. This is a challenge to a discretionary aspect of sentence.
This Court explained in Commonwealth v. Darden, 366 Pa. Super. 597, 531 A.2d 1144 (1987):
Under Pennsylvania law, neither the defendant nor the Commonwealth may take an appeal as of right from the discretionary aspects of sentence. Rather, "[t]he defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be 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 [the Sentencing Code]." 42 Pa.C.S.A. § 9781(b). Our Supreme Court indicated in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), that three distinct steps must be taken to properly raise a challenge to the discretionary aspects of sentence: there must be a timely notice of appeal (see Pa.R.A.P. 902 & Note; Pa.R.A.P. 903); the challenge must be set forth in the statement of questions presented (see Pa.R.A.P. 2116(b)); and, the appellant must include in the brief, immediately preceding argument in support of the challenge, a separate, concise statement of the reasons for allowance of appeal under 42
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Pa.C.S.A. § 9781(c) (see Pa.R.A.P. 2119(f)). 522 A.2d at 18-19.
366 Pa. Superior Ct. at 601-602, 531 A.2d at 1146.
In the instant case, timely notice of appeal was filed; the Commonwealth's challenge to the discretionary aspects of sentence was included in the statement of question presented; and, the Commonwealth included in its brief, immediately preceding argument in support of the challenge, a separate, concise statement of the reasons for allowance of appeal. Thus, the Commonwealth has satisfied the procedural requirements for properly raising a challenge to discretionary aspects of sentence.
Next, we must determine whether appellant has raised the appearance of a substantial question as to whether the sentence imposed is appropriate under the Sentencing Code as a whole. Under the plain language of 42 Pa.C.S.A. § 9781(b), the appearance of a substantial question determines whether this Court may grant allowance of appeal of the discretionary aspects of sentence, while the sound discretion of this Court determines whether this Court will grant review. Commonwealth v. Darden, supra, 366 Pa. Superior Ct. at 603, 531 A.2d at 1147; see also Commonwealth v. Douglass, 370 Pa. Super. 104, 113-114, 535 A.2d 1172, 1177 (1987) (Kelly, J., concurring).
In order to determine whether the Commonwealth has raised the appearance of a substantial question in the instant case, we must first decide, at least generally, what a "substantial question" is. Our task has been narrowed somewhat by the legislature; 42 Pa.C.S.A. § 9781(c) provides:
Determination on appeal. -- The appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds:
[ 372 Pa. Super. Page 152]
(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the sentence imposed by the sentencing court.
(Emphasis added). Unless an appellant establishes one of these three grounds to vacate sentence, this Court is under a statutory mandate to affirm judgment of sentence. It follows, necessarily, that presentation of at least an arguable claim that the sentence should be vacated under one of these grounds is minimally required to establish a substantial question. Cf. Commonwealth v. Tilghman, 366 Pa. Super. 328, 330-31, 531 A.2d 441, 443-44 (1987); Commonwealth v. Easterling, 353 Pa. Super. 84, 509 A.2d 345 (1986).*fn1
In construing the language of 42 Pa.C.S.A. § 9781(c)(2) and 42 Pa.C.S.A. § 9781(c)(3), it is important to note that this Court's former dictum that "only in exceptional cases and for sufficient reasons may a court deviate from the guidelines,"*fn2 has been abandoned. In Commonwealth v. Darden, supra, this Court noted that our Supreme Court's opinion in Commonwealth v. Tuladziecki, supra, eroded, if
[ 372 Pa. Super. Page 153]
not overruled sub silentio, any basis for reliance on the former dictum. This Court then concluded:
[W]hile the sentencing court is required to 'consider' the applicable guidelines, and while the reasons for any deviation from the applicable standard range of the guidelines must be explained in writing, the determination of whether the sentence is 'not appropriate,' 'clearly unreasonable,' or 'unreasonable' must be made with reference to the Sentencing Code as a whole, not solely with reference to the provisions of the sentencing guidelines.
366 Pa. Superior Ct. at 608, 531 A.2d at 1150. (Emphasis in original). Our analysis in Darden is supported by our Supreme Court's explanation in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987), that:
Most important, the court has no 'duty' to impose a sentence considered appropriate by the Commission. The guidelines must only be 'considered' and, to ensure that such consideration is more than mere fluff, the court must explain its reasons for departure from them. Viewed in this manner, the guidelines are essentially a sophisticated compilation and distillation of a vast range of factors affecting the sentencing process in the abstract, accomplished by persons of expertise representing a broad spectrum of interests. The legislature with the governor's approval has deemed it proper that the findings of such a body, assembled to assist it in developing and overseeing a sound sentencing system, be given practical application in individual cases as well. We may say that in directing courts to consider these guidelines, just as they must consider a number of listed though non-exclusive factors in imposing probation, the legislature has done no more than direct that the courts take notice of the Commission's work.
516 Pa. at 377, 532 A.2d at 781; see also Commonwealth v. Douglass, supra, 370 Pa. Superior Ct. at 110-113, 535 A.2d at 1174-1176; Commonwealth v. Pickford, 370 Pa. Super. 444, 448-451, 536 A.2d 1348, 1350-51 (1987) (Kelly, J., concurring and dissenting).
[ 372 Pa. Super. Page 154]
From the foregoing we conclude that in accordance with the provisions of 42 Pa.C.S.A. § 9781(c), in order to raise the appearance of a substantial question, an appellant ...