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COMMONWEALTH PENNSYLVANIA v. PATRICK JOHN SMICKLO (07/05/88)

filed: July 5, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
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.

COUNSEL

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.

Author: Beck

[ 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August 4, 1986, the Honorable W. Parker Ruddock sentenced Smicklo under the Youth Offenders Act (which was subsequently repealed, effective February 9, 1987).*fn3 In accordance with the provisions of the Act, the Judge imposed no minimum term of confinement, and imposed a maximum term of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 ยงยง 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 ...


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