filed: July 5, 1988.
COMMONWEALTH OF PENNSYLVANIA
PATRICK JOHN SMICKLO, APPELLANT
Appeal from the judgment of sentence of September 3, 1986 in the Court of Common Pleas of Indiana County, Criminal, No. 22 CRIM 1986.
Michael Handler, Assistant Public Defender, Indiana, for appellant.
Pamela Miller, Assistant District Attorney, Indiana, for Com., appellee.
Brosky, Wieand, McEwen, Olszewski, Beck, Tamilia, Kelly, Popovich and Johnson, JJ. Kelly, J., files a concurring and dissenting opinion.
[ 375 Pa. Super. Page 451]
This is an appeal by John Smicklo from a prison sentence imposed by the Court of Common Pleas of Indiana County. We conclude that the judgment of sentence must be affirmed.
John Smicklo was arrested and charged with stealing a lawn tractor valued at over two thousand dollars from the Burrell Township Elementary School on November 18, 1985. He pleaded guilty to theft by unlawful taking*fn1 and receiving stolen property*fn2 as felonies of the third degree. On August 4, 1986, the Honorable W. Parker Ruddock sentenced Smicklo under the Youth Offenders Act (which was subsequently repealed, effective February 9, 1987).*fn3 In accordance with the provisions of the Act, the Judge imposed no minimum term of confinement, and imposed a maximum term of confinement of six years to be served at the State Correctional Institutional at Camp Hill. See Pa.Stat.Ann. tit. 61 §§ 484, 485. Smicklo filed a motion to modify sentence which was denied. He appealed to this court, and the case was certified for en banc review.
[ 375 Pa. Super. Page 452]
Appellant contends that the trial judge did not have authority to sentence him under the Youth Offenders Act because the Act was invalid as a sentencing statute. He claims that the Youth Offenders Act, which prohibits a minimum sentence, is inconsistent with the 1982 Sentencing Guidelines, which specify suggested ranges of minimum sentences.*fn4 We recently rejected this argument in Commonwealth Page 452} v. Smith, 375 Pa. Super. 419, 544 A.2d 991 (1988) (en banc). As we noted in Smith, "A judge could fulfill his responsibilities under both the guidelines and the Act by: 1) considering the minimum sentence range suggested by the guidelines; 2) stating on the record his reasons for deviating from the guidelines and applying the Act; and 3) imposing a sentence without a minimum term of confinement." Id., 375 Pa. Super. at 430, 544 A.2d at 997. Therefore, the Act and the guidelines are not in conflict. Since appellant qualified for sentencing under the Act and was sentenced before the repeal of the Act, the trial judge had authority to invoke the Act and impose a sentence with no minimum limit.
Appellant also maintains that the trial court erred by failing to state on the record his reasons for not sentencing under the guidelines.*fn5 We must determine at the outset
[ 375 Pa. Super. Page 453]
whether this issue implicates a discretionary aspect of the sentence or the legality of the sentence. A challenge to the legality of a sentence may be appealed as of right and cannot be waived. On the other hand, we cannot reach the merits of a discretionary sentencing issue unless we find: 1) that the issue was properly preserved in the trial court; 2) that the appellant has filed a brief with this court which does not contain a fatal defect; and 3) that the issue presents the appearance of a substantial question that the sentence appealed from is not appropriate under the Sentencing Code. Smith, 375 Pa. Super. at 435, 544 A.2d at 998; see Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).
We find that appellant Smicklo's second claim involves a discretionary aspect of sentence rather than a question of sentence legality. "A legality issue is essentially a claim that the trial court did not have jurisdiction to impose the sentence that it handed down . . . . A trial court ordinarily has jurisdiction to impose any sentence which is within the range of punishments which the legislature has authorized for the defendant's crimes." Commonwealth v. Smith, 375 Pa. Super. at 426, 544 A.2d at 994. As we have noted, appellant's sentence of no minimum term and six years maximum term was specifically authorized by the Youth Offenders Act, and the Act was in force at the time of appellant's sentencing hearing. We therefore conclude that the judgment of sentence was not illegal.
By characterizing appellant's second claim as "discretionary", we do not mean to imply that the trial court need not explain its reasons for departing from the guidelines. The
[ 375 Pa. Super. Page 454]
trial court has been directed by the legislature to state on the record its reasons for deviating from the guidelines, and the trial court's failure to provide such a statement is cause for vacating and remanding a judgment of sentence. 42 Pa.Cons.Stat.Ann. § 9721(b) (Purdon 1982).*fn6 However, it does not follow that the failure to state reasons for sentencing outside the guidelines implicates the court's power to impose a legislatively mandated sentence. It must be emphasized that not every error committed during the course of the sentencing hearing is sufficient to divest the trial court of jurisdiction. See, Commonwealth v. Krum, 367 Pa. Super. 511, 513-14, 533 A.2d 134, 135 (1987) (en banc) (consideration of impermissible factor does not render sentence illegal). See generally Commonwealth v. Hartz, 367 Pa. Super. 267 at 285-89, 532 A.2d 1139 at 1148-1149 (1987) (Cirillo, P.J., concurring) (collecting cases on waiver).
In Commonwealth v. Tolassi, 303 Pa. Super. 177, 449 A.2d 636 (1982), we considered the analogous question of whether the trial court's failure to give an overall statement of reasons for the sentence imposed, as required by the Pennsylvania Supreme Court's decision in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), resulted in an illegal sentence.*fn7 This court held in an opinion by former President Judge Spaeth that:
The requirements that the lower court must state of record its reasons for not ordering a pre-sentence report, Pa.R.Crim.P. 1403(A)(2); that sentences must not be uniform
[ 375 Pa. Super. Page 455]
but individualized, Commonwealth v. Martin, [466 Pa. 118, 351 A.2d 650 (1976)]; Commonwealth v. Riggins, supra; and that the lower court must state of record its reasons for the sentence, Commonwealth v. Riggins, supra; Pa.R.Crim.P. 1405(b), are all requirements intended to improve the quality of sentencing and to aid appellate review. They do not implicate the power of the court to impose sentence, and the failure to comply with them does not render a sentence "illegal" within the principle that the illegality of a sentence is not subject to waiver, any more that a judge's failure to make a correct evidentiary ruling makes the resulting verdict "illegal." Thus we have repeatedly held that the claim that a sentence should be vacated because of the lower court's failure to state of record its reasons for the sentence will be waived if not made in a motion to modify sentence, filed pursuant to Pa.R.Crim.P. 1410 . . . . Any other result would be inconsistent with the principle of Commonwealth v. Clair, [458 Pa. 418, 326 A.2d 272 (1974)], that even claims of "fundamental error" may be waived.
303 Pa. Super. at 180-82, 449 A.2d at 638.
[ 375 Pa. Super. Page 456]
Since Tolassi, we have customarily treated claims relating to statement of reasons requirements not as challenges to sentence legality but rather as challenges to discretionary aspects of a sentence. We have reaffirmed the holding that such claims are waived unless raised before the trial court in a motion to modify sentence. See, e.g., Commonwealth v. Martin, 328 Pa. Super. 498, 477 A.2d 555 (1984) (en banc); Commonwealth v. Warden, 335 Pa. Super. 315, 484 A.2d 151 (1984). We have also found that such claims are not appealable as of right, and are subject to the Pennsylvania Supreme Court's decision in Commonwealth v. Tuladziecki, supra. See, e.g., Commonwealth v. Johnson, 373 Pa. Super. 312, 328-330, 541 A.2d 332, 340 (1988); Commonwealth v. Sanchez, 372 Pa. Super. 369, 539 A.2d 840 (1988) (en banc); Commonwealth v. Thomas, 370 Pa. Super. 544, 537 A.2d 9, 12 (1988); Commonwealth v. Losch, 369 Pa. Super. 192, 535 A.2d 115 (1987); Commonwealth v. Osborn, 364 Pa. Super. 505, 528 A.2d 623, 630 (1987); Commonwealth Page 456} v. Thomas, 363 Pa. Super. 348, 354-55, 526 A.2d 380, 383 (1987).
In Tuladziecki, the Court emphasized the importance of compliance with Pennsylvania Rule of Appellate Procedure 2119(f). Rule 2119(f) directs the appellant to "set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence." Appellant's brief does not contain a Rule 2119(f) statement. This court will overlook a Rule 2119(f) violation where the appellee has failed to object to the defect. Commonwealth v. Krum, supra. In this case, however, the Commonwealth specifically objected to the defect. Supplemental Brief of Appellee at 3-4. Therefore we will not consider whether the trial court provided a sufficient statement of reasons for sentencing appellant outside the guidelines.
Judgment of sentence affirmed.
KELLY, Judge, concurring and dissenting:
I agree with the majority that the Youth Offenders Act was not impliedly repealed by adoption of the Sentencing Guidelines. I also agree that a sentence under the Youth Offenders Act is a sentence "outside" the guidelines, is subject to the written statement requirement of 42 Pa.C.S.A. § 9721(b) and 204 Pa.Code § 303.1(h), and is reviewable under 42 Pa.C.S.A. § 9781(b) and 9781(c)(3). See Commonwealth v. Felix, 372 Pa. Super. 145, 154 n. 4, 539 A.2d 371, 375 n. 4 (1988).
I do not agree that: 1) if the Commonwealth fails to raise a challenge to an appellant's failure to comply with Pa.R.A.P. 2119(f), that procedural defect is waived and will be ignored; and, 2) if the Commonwealth properly raises a challenge to an appellant's failure to comply with Pa.R.A.P. 2119(f), appellant's challenge to the discretionary aspects of sentence must be deemed to have been waived. Those pronouncements improperly and unduly restrict this Court's inherent discretionary authority to enforce the rules of procedure sua sponte, and to decide in our sound discretion
[ 375 Pa. Super. Page 457]
what the proper response to a procedural defect is in a particular case. See Commonwealth v. Zeitlen, 366 Pa. Super. 78, 81-86, 530 A.2d 900, 902-04 (1987) (Kelly, J., joining and concurring); see also Commonwealth v. Graham, 372 Pa. Super. 365, 367, 539 A.2d 838, 839 (1988); Commonwealth v. Felix, supra, 372 Pa. Super. at 155, 539 A.2d at 376 (1988); Commonwealth v. Douglass, 370 Pa. Super. 104, 106, 535 A.2d 1172, 1174 (1988); Commonwealth v. Pickford, 370 Pa. Super. 444, 453, 536 A.2d 1348, 1356-57 (1987) (Kelly, J., concurring and dissenting).
In the instant case, appellant argues that the trial court failed to comply with the written statement requirement of 42 Pa.C.S.A. § 9721 and 204 Pa.Code § 303.1(h). This issue was properly preserved by a timely motion to modify sentence, timely notice of appeal, and inclusion of the issue in the statement of questions presented. However, counsel failed to include the required Pa.R.A.P. 2119(f) statement in appellant's brief. Rather than find the issue waived based upon counsel's procedural default, I would simply direct counsel to file a supplement to the brief to comply with Pa.R.A.P. 2119(f), and thereby avoid the inevitable PCHA petition raising this identical claim in an ineffective assistance of counsel claim. See Commonwealth v. Zeitlen, supra, 366 Pa. Super. at 81-85, 530 A.2d at 902-03.
Thus, I concur in part and dissent in part.