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11/13/97 COMMONWEALTH PENNSYLVANIA v. ADRIAN JOSEPH

November 13, 1997

COMMONWEALTH OF PENNSYLVANIA
v.
ADRIAN JOSEPH WAGNER, APPELLANT; COMMONWEALTH OF PENNSYLVANIA V. ADRIAN JOSEPH WAGNER, APPELLANT



Appeal from the Judgment of Sentence dated August 12, 1996 In the Court of Common Pleas of Erie County Criminal Division, No. 464 of 1996.

Appeal from the Judgment of Sentence dated August 12, 1996 In the Court of Common Pleas of Erie County Criminal Division, No. 453 of 1996.

Before ANTHONY, J.

Before: Kelly, J., Cercone, P.j.e., and Brosky, J. Opinion BY Cercone, P.j.e. Concurring Opinion BY Brosky, J.

The opinion of the court was delivered by: Cercone

OPINION BY CERCONE, P.J.E.:

Filed November 13, 1997

This is a consolidated appeal from the judgment of sentence imposed after appellant pleaded no contest to two counts of indecent assault. *fn1 We vacate the judgment of sentence and remand for resentencing.

Appellant was charged with two counts of indecent assault, one count of indecent exposure, and one count of aggravated indecent assault. The charges arose out of two incidents involving appellant, a van driver for handicapped students at Edinboro University, and the victim, a handicapped student. Appellant pled no contest to the two charges of indecent assault, as well as to a count of indecent exposure. A charge of aggravated indecent assault was nolle prossed. Appellant was sentenced to consecutive terms of one to two years incarceration on the indecent assault charges. The charge of indecent exposure merged for sentencing purposes. On appeal, appellant raises three issues:

A. Whether the lower court abused its discretion in failing to provide due consideration to his lack of a juvenile record, his prior record score of zero, his educational background, his positive behavior while incarcerated, and his remorse, as mitigating factors in imposing sentence?

B. Whether the lower court abused its discretion in imposing the statutory maximum sentence for the charge of indecent assault where the conduct, although unlawful, was relatively minor compared to other conduct comprising the crime of indecent assault?

C. Whether the lower court abused its discretion in imposing the statutory maximum sentences on each respective criminal count when there were insufficient aggravating circumstances to legally support said sentencing scheme and where the sentencing court failed to make a legally sufficient contemporaneous statement on the record and where the court advanced reasons for imposing a sentence in the aggravated range and then imposed sentence outside of the guidelines?

Brief for appellant, at 3.

We must first determine if appellant has raised a substantial question justifying our review of the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781 (b)(appellate court may at its discretion grant allowance of appeal where it appears there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code). A substantial question will be found where appellant advances a colorable argument that the trial Judge's actions were inconsistent with a specific provision of the sentencing code, or contrary to the fundamental norms underlying the sentencing process. Commonwealth v. Losch, 369 Pa. Super. 192, 201 n.7, 535 A.2d 115, 119 n.7 (1987).

An allegation that the sentencing court failed to consider or did not adequately consider certain factors does not raise a substantial question that the sentence imposed was inappropriate. Commonwealth v. Cruz-Centeno, 447 Pa. Super. 98, 668 A.2d 536, 447 Pa. Super. 98 (1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996). A claim of excessiveness of sentence does not raise a substantial question where the sentence imposed is within the statutory limits. Id. The sentences imposed here were within the statutory limits. See 18 Pa.C.S.A. ยง 106 (7)(maximum sentence for misdemeanor of second degree is two years). However, a claim that the sentencing court did not adequately explain its reasons for sentencing outside of the sentencing ...


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