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COMMONWEALTH PENNSYLVANIA v. WILLIAM THOMAS (07/24/89)

submitted: July 24, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
WILLIAM THOMAS, APPELLANT



Appeal from the Judgment of Sentence Docketed February 10, 1989, in the Court of Common Pleas of Lackawanna County, Criminal, No. 87 CR. 995; 87 CR. 1266.

COUNSEL

Carl J. Poveromo, Scranton, for appellant.

Salvatore J. Nardozzi, Asst. Dist. Atty., Dunmore, for Com.

Rowley, Olszewski and Hester, JJ.

Author: Olszewski

[ 387 Pa. Super. Page 192]

This is an appeal from a judgment of sentence imposed following appellant's conviction of two counts of driving under the influence of alcohol, 75 Pa.C.S.A. § 3731(a) (hereinafter "DUI"). Appellant contends that the trial court abused its discretion in sentencing appellant to two consecutive terms of one-to-two years incarceration. For reasons that follow, we affirm the judgment of sentence.

As the result of an accident that occurred on July 10, 1987, appellant was charged on July 15, 1987 with DUI. Following another accident on October 1, 1987, appellant was again charged with DUI.*fn1 On June 10, 1988, appellant plead guilty to both counts. The trial court imposed consecutive one-to-two year sentences on February 10, 1989, and

[ 387 Pa. Super. Page 193]

    denied appellant's petition for reconsideration of sentence on February 15, 1989. This appeal followed.

Appellant raises one issue for our review: "Whether the sentencing court abused its discretion in sentencing the defendant due to its failure to consider the guidelines as an indicator of reasonability and by imposing an excessive and unreasonable sentence based solely upon the nature of the crime and defendant's prior record?" Appellant's brief at 3. Appellant challenges the discretionary aspects of his sentence. When challenging the discretionary aspects of sentencing, the courts of this Commonwealth require: (1) a timely notice of appeal; (2) setting forth of the challenge in the statement of questions presented; and (3) a concise statement of reasons for allowance of appeal under 42 Pa.C.S.A. § 9781(c). Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); Commonwealth v. Darden, 366 Pa. Super. 597, 531 A.2d 1144 (1987).

Finding that appellant has complied with these procedural requirements, we proceed to determine whether appellant has raised the appearance of a substantial question as to whether the sentence imposed is appropriate under the Sentencing Code. 42 Pa.C.S.A. § 9781(b). Commonwealth v. Anderson, 381 Pa. Super. 1, 17, 552 A.2d 1064, 1072 (1988); Commonwealth v. Felix, 372 Pa. Super. 145, 151, 539 A.2d 371, 374 (1988). Our Supreme Court mandated that an appellant separately set forth the reasons relied upon for allowance of appeal in order to further the purpose of the Sentencing Code "of limiting any challenges to the trial court's evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases." Tuladziecki, supra, 513 Pa. at 513, 522 A.2d at 20 (emphasis added). In determining whether a substantial question is presented, we must make a separate and distinct determination from any review of the merits of the petition. Darden, supra, 366 Pa. Super. at 603, 531 A.2d at 1147. "Consequently, we must accept appellant's assertions of fact as a true and complete statement of the relevant facts for the

[ 387 Pa. Super. Page 194]

    limited purpose of determining whether appellant has raised the appearance of a ...


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