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COMMONWEALTH PENNSYLVANIA v. CARL L. KAHLEY (03/15/88)

filed: March 15, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
CARL L. KAHLEY, APPELLANT



Appeal from Judgment of Sentence July 6, 1987, in the Court of Common Pleas of Snyder County, Criminal, No. 14-1987.

COUNSEL

Charles Rector, Lemoyne, for appellant.

John T. Robinson, District Attorney, Middleburg, for Com., appellee.

Cavanaugh, Olszewski and Popovich, JJ.

Author: Olszewski

[ 372 Pa. Super. Page 182]

This is an appeal from a judgment of sentence imposing one-to-two years following a guilty plea to driving under the influence. Appellant contends that the trial court abused its discretion in imposing a sentence that is outside the guidelines, consistent with the statutory maximum, unreasonable, and not reflective of the minimum amount of time consistent with the gravity of the offense and therefore manifestly excessive. We affirm the judgment of the trial court.

On January 17, 1987, at about 6:00 p.m., appellant was arrested and charged with driving under the influence (DUI) and the summary offense of failing to stay within a

[ 372 Pa. Super. Page 183]

    single lane. Appellant subsequently pleaded guilty to DUI and the summary offense was nol prossed. During a sentencing hearing on July 6, 1987, the trial court considered a presentence report, appellant's driving record,*fn1 the sentencing guidelines and heard from appellant's attorney. The trial judge then sentenced appellant to one-to-two years imprisonment for DUI. This appeal followed.

We note, preliminarily, that appellant is appealing from discretionary aspects of his sentence. The Commonwealth contends that appellant's challenge is waived because he has failed to raise a substantial question with respect to the appropriateness of his sentence. We note that appellant has complied with the mandate of Pa.R.A.P. 2119(f) by setting forth a concise statement of the reasons relied upon for allowance of this appeal. We find, moreover, that appellant has presented us with a substantial question and, therefore, this appeal is properly before us for review.

Appellant claims that the trial court abused its discretion in sentencing appellant to one-to-two years. It is firmly established that sentencing is a matter within the discretion of the trial court which we will not disturb absent an abuse of discretion. Commonwealth v. Plank, 498 Pa. 144, 445 A.2d 491 (1982); Commonwealth v. Cherpes, 360 Pa. Super. 246, 520 A.2d 439 (1987). If the sentence is within the statutory limits,*fn2 there is no abuse of discretion unless the sentence is manifestly excessive so as to inflict too severe a punishment. Commonwealth v. Yacoubian, 339 Pa. Super. 413, 489 A.2d 228 (1985), citing Commonwealth v. Gaus, 300 Pa. Super. 372, 377, 446 A.2d 661, 664 (1982).

[ 372 Pa. Super. Page 184]

We have mandated that when a sentencing court deviates substantially from the sentencing guidelines,*fn3 it is important that the court consider all factors relevant to a determination of the proper sentence. Commonwealth v. Ruffo, 360 Pa. Super. 180, 520 A.2d 43 (1987). The trial court is required, therefore, to consider the sentencing guidelines, Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981); the background and character of the defendant and the circumstances of the crime, Commonwealth v. Arent, 352 Pa. Super. 520, 508 A.2d 596 (1986); and to ...


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