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COMMONWEALTH PENNSYLVANIA v. THOMAS EDWARD OSTEEN (01/11/89)

filed: January 11, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS EDWARD OSTEEN, APPELLANT



Appeals from the Judgments of Sentence entered January 28, 1988 and February 1, 1988 in the Court of Common Pleas of Erie County, Criminal Division, Nos. 1085 and 1780 of 1987.

COUNSEL

Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.

Stephen J. Lagner, Assistant District Attorney, Erie, for Com., appellee.

Olszewski, Del Sole and Kelly, JJ. Del Sole, J., concurs in the result.

Author: Kelly

[ 381 Pa. Super. Page 122]

Appellant appeals from judgments of sentence alleging that the sentences imposed are excessive, and that the trial court abused its discretion by rejecting the sentencing recommendation which the prosecutor made pursuant to a plea bargain. We affirm judgments of sentence, and deny the petitions for allowance of appeal of the discretionary aspects of the sentences imposed.

FACTS AND PROCEDURAL HISTORY

On Wednesday, October 7, 1987, appellant pled guilty to charges of false reports to law enforcement authorities and loitering and prowling at night. The only inducement offered by the Commonwealth for that plea was an agreement to nol pros a summary charge of criminal mischief. (N.T. 10/7/87 at 7).

On Friday, December 4, 1987, appellant entered a plea of no contest to charges of simple assault and a summary offense of harassment. The factual predicate for these charges was that appellant chased another individual up a street with a baseball bat, putting that individual in fear of imminent serious bodily injury. To induce this plea, the Commonwealth agreed that the summary harassment conviction would be considered to merge with the simple assault conviction, and the prosecutor would recommend to the court at sentencing that a term of probation should be imposed upon the simple assault conviction to be served consecutive to whatever sentence was imposed upon the convictions for false reports and loitering and prowling. (N.T. 12/4/87 at 2; see also N.T. 1/28/88 at 7).

A comprehensive pre-sentence report, a psychological report, and a victim impact statement were prepared, and were reviewed by counsel and the trial court prior to

[ 381 Pa. Super. Page 123]

    sentencing. On January 28, 1988, a sentencing hearing was held wherein defense counsel presented argument toward mitigation of sentence. (N.T. 1/28/88 at 2-7). The prosecutor, while continuing its recommendation of consecutive probation on the simple assault conviction, noted various factors which weighed in favor of incarceration on the false reports and loitering and prowling convictions. (N.T. 1/28/88 at 8-9).

Following counsels' arguments, the trial court outlined in detail the various sentencing factors it considered. (N.T. 1/28/88 at 9-17). The trial court proceeded to sentence appellant to a term of imprisonment of twelve to twenty-four months on the false reports conviction and a consecutive term of imprisonment of six to twelve months on the loitering and prowling at night conviction, plus restitution in the amount of thirteen dollars and ninety-five cents for replacement of a window broken in the incident. (N.T. 1/28/88 at 17-18). The trial court then specifically rejected the prosecution's recommendation of consecutive probation for the simple assault conviction, and instead sentenced appellant to a term of imprisonment of twelve to twenty-four months imprisonment to be served consecutive to the sentences previously imposed. Thus, appellant was sentenced to an aggregate term of imprisonment of two and one-half to five years imprisonment.

A timely motion to reconsider the sentences imposed was filed which challenged the sentences as excessive and contrary to the agreed plea bargain. This motion was granted in part on February 1, 1988, by reducing the sentence on the simple assault conviction from a term of twelve to twenty-four months imprisonment to a term of six to twelve months imprisonment. The new aggregate sentence was two to four years imprisonment. On February 4, 1988, appellant renewed his motion to reconsider sentence on the same grounds previously raised. This motion was denied on February 5, 1988.

On February 19, 1988, the trial court directed appellant to file a Pa.R.A.P. 1925(b) statement ...


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