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COMMONWEALTH PENNSYLVANIA v. EVARISTO SANCHEZ (03/16/88)

filed: March 16, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
EVARISTO SANCHEZ, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lehigh County at No. 1863/1984.

COUNSEL

Edward R. Eidelman, Public Defender, Allentown, for appellant.

Michael E. Moyer, Assistant District Attorney, Allentown, for Com., appellee.

Cirillo, President Judge, and Brosky, Wieand, Olszewski, Del Sole, Montemuro, Tamilia, Popovich and Johnson, JJ. Cirillo, President Judge, and Brosky, J., file a dissenting opinion. Wieand and Olszewski, JJ., file a dissenting statement.

Author: Popovich

[ 372 Pa. Super. Page 370]

This is an appeal from the judgment of sentence which was imposed upon appellant, Evaristo Sanchez, after he entered a plea of guilty to various drug charges. We granted en banc review and must remand the matter for resentencing.

The records sets forth the following scenario:

On July 11, 1985, appellant entered a plea of guilty to possession with intent to deliver heroin,*fn1 possession of heroin,*fn2 possession with intent to deliver cocaine,*fn3 and possession

[ 372 Pa. Super. Page 371]

    of cocaine,*fn4 counts one (1) to four (4) respectively.

On September 9, 1985, appellant received consecutive terms of imprisonment of not less than seven and one-half (7 1/2) nor more than fifteen (15) years on count one (1) and not less than two and one-half (2 1/2) nor more than ten (10) years on count three (3). The trial court merged counts two (2) and four (4) with counts one (1) and three (3). A motion for reconsideration of sentence was filed in a timely manner on September 16, 1985, and was subsequently denied. This appeal followed.

Appellant raises two issues in this appeal: (1) whether the trial court erred in failing to state appropriate reasons on the record for exceeding the Sentencing Guidelines, 204 Pa.Code § 303.1 et seq., and failed to state appropriate and sufficient reasons for the extremely harsh sentence and (2) whether the sentence of ten (10) to twenty-five (25) years in prison was manifestly excessive.

According to the prosecution, a waiver has occurred because "no motion to modify was ever filed." Brief for Appellee at 6. However our review of the record indicates that a motion for reconsideration was filed on September 16, 1985 and was denied on September 18, 1985. Because the issues which appellant raises were set forth in the reconsideration motion, these issues have not been waived. Commonwealth v. Tomasso, 506 Pa. 344, 485 A.2d 395 (1984).

Additionally, we note that the sentence which was imposed was authorized by the legislature. The maximum limits which could have been imposed under counts one (1) and three (3) were fifteen (15) and ten (10) years in prison, respectively. See 35 P.S. § 780-113(f)(1) and (1.1). Hence, appellant's sentence of not less than seven and one-half (7 1/2) nor more than fifteen (15) years in prison on count (1) and not less than two and one-half (2 1/2) nor more than ten (10) years in prison on count three (3) was within the statutory limits.

[ 372 Pa. Super. Page 372]

Because the instant appeal raises issues concerning the discretionary aspects of sentence, we must examine our Court's recent decision in Commonwealth v. Krum, 367 Pa. Super. 511, 533 A.2d 134 (1987). In Krum, we applied our Supreme Court's recent decision in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) and said the following:

In Tuladziecki, the defendant preserved his challenge to the Commonwealth's procedural violation of Rule 2119(f) by raising the issue (1) in the Superior Court, and (2) in the Supreme Court. In the instant case, the Commonwealth has not objected to or otherwise preserved the defendant's failure to include in his brief a separate showing, as required by Pa.R.App.P. 2119(f), a "substantial question that the sentence imposed [was] not appropriate." Because the requirement of Rule 2119(f), is procedural and not jurisdictional, the Commonwealth's failure to object to or otherwise assert the defect in the form of appellant's brief has resulted in a waiver of the defect. Therefore, the Superior Court will determine, in its own discretion, whether there is a substantial issue requiring it to review the discretionary aspects of the sentence imposed by the trial court. Id. [(at 511, 522 A.2d at 18)] (footnote omitted).*fn5

Because the prosecution has failed to mention appellant's noncompliance with Rule 2119(f), we may conclude that "the Commonwealth's failure to object to or otherwise assert the defect in the form of appellant's brief has resulted in a waiver of the defect." Id. In this case, appellant contends that the sentence which was imposed was almost twice as long as the sentence which was recommended by the guidelines. Under these circumstances, we find that there is a substantial question that the sentence which was imposed

[ 372 Pa. Super. Page 373]

    was not appropriate, and we may therefore examine the merits of appellant's claim that the trial court erred in failing to state appropriate or sufficient reasons for deviating from the guidelines.*fn6 See, e.g., Commonwealth v. Tuladziecki, supra; Commonwealth v. Darden, 366 Pa. Super. 597, 531 A.2d 1144 (1987).

We granted en banc review to determine whether the trial court failed to comply with this Court's previous decision in Commonwealth v. Royer, 328 Pa. Super. 60, 476 A.2d 453 (1984). In Royer, we held that the trial court must provide a contemporaneous written statement of the permissible range of sentences where a sentence is imposed which deviates from the statutory guidelines.*fn7 In this case, it is undisputed that the sentence deviated from the guidelines. We have examined the record in this case and conclude that "nowhere did the court allude to the guidelines, nor did it indicate that it was aware of the guidelines' suggested ranges." Commonwealth v. Chesson, 353 Pa. Super. 255, 509 A.2d 875, 876.

The written record which was compiled at the sentencing hearing consisted of the following:

"THE COURT: Well, let's take a look at that for a moment. In 1980, some gambling charge, guilty to disorderly

[ 372 Pa. Super. Page 374]

    conduct, pay fines and costs. A Judge gave you a chance to do something. Right, Mr. Sanchez? A Judge gave you a chance in 1980.

"Possession of marijuana, November, 1980, pay fine and costs. Again, a Judge gave you a chance then, right?

"I assume Mr. Lauer, Defense Counsel, has that. Do you have that report in front of you?

"MR. LAUER [Defense Counsel]: I have the pre-sentence report.

"THE COURT: Judge gave you chance then.

"April 1982, possession of marijuana, pay fine and costs. Judge gave you a chance then.

"May 21, 1982, public drunkenness. A Judge gave you a chance, $25 fine.

"In December of 1982, robbery charges dismissed. I don't know ...


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