Appeal from the Judgment of Sentence October 26, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007848-2011 Appeal from the Judgment of Sentence October 26, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007855-2011
The opinion of the court was delivered by: Stevens, P.J.
IN THE SUPERIOR COURT OF PENNSYLVANIA
BEFORE: STEVENS, P.J., WECHT, J., and COLVILLE, J.*fn1
Kalee Hill (hereinafter "Appellant") appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County on October 26, 2011, at which time he was sentenced to an aggregate term of thirty-five (35) years to seventy (70) years in prison following his open guilty plea to three counts of Aggravated Assault and to one count of Persons not to possess, use, manufacture, control, sell or transfer firearms.*fn2 Upon our review of the record, we vacate and remand for resentencing?*fn3
This matter arises following Appellant's entry of an open guilty plea on August 24, 2011, to the aforementioned crimes which occurred on June 12, 2011. On that date at approximately 9:45 p.m., Appellant was standing near a busy intersection in Philadelphia during which time a car circled the block prior to slowing down in front of him. N.T., 10/26/11, at 18.
Appellant took out a gun and opened fire at the vehicle. Id. Mr. Raymond Erwin, who was speaking with a friend nearby, was struck by a stray bullet fired from Appellant's gun as was Ms. Mimine Hein, a young woman who was nine months pregnant and in the vicinity to pick up her husband and daughter. Id. at 10. The Commonwealth acknowledged that the shooting of Mr. Erwin and Ms. Hein was unintentional, though it also stressed that this did not mitigate the crimes he had committed. Id. at 20-21.
Mr. Erwin testified that as a result of the injuries he sustained in the shooting, he had a gastronomy tube implanted for one year, had undergone three surgeries prior to the date of sentencing, and had a fourth surgery scheduled for November 15, 2011. Id. at 7. Ms. Heim testified that she had been shot in her left arm which rendered her unable to lift it. As a result, she is no longer able to work in the field of hair braiding. Id. at 11.
A sentencing hearing was held on October 26, 2011, after which the sentencing court imposed consecutive sentences of ten (10) years to twenty (20) years in prison for each of the Aggravated Assault counts followed by a consecutive sentence of five (5) years to ten (10) years in prison on the firearms charge.
On November 3, 2011, Appellant filed his Motion for Reconsideration of Sentence, and the sentencing court denied the same on November 10, 2011. Appellant filed a timely notice of appeal.
On January 17, 2012, Appellant filed his 1925(b) Statement of Questions Presented, and in his brief Appellant raises the following questions for our review:
1. Whether the lower court abused its discretion in imposing [a] maximum aggregate sentence of thirty-five (35) to seventy (70) years, for three counts of Aggravated Assault, 18 Pa.C.S.A. Section 2702, and one count of Persons not to Possess Firearm, 18 Pa.C.S.A. 6105, which was significantly higher than the maximum aggravated sentence recommended by the sentencing guidelines, contrary to the fundamental norms of sentencing and inconsistent with the objectives of the sentencing code, where the sentence was manifestly excessive in light of criminal conduct at issue in the case, and the sentence was not consistent with the protection of the public or the rehabilitative needs of Appellant, who articulated remorse at his sentencing hearing?
2. Whether the lower court abused its discretion in denying Appellant's application for continuance of sentencing hearing, in order for the court to obtain complete mental health evaluation, and instead proceeded to sentencing, without stating adequate reasons for the omission?
Brief for Appellant at 7 (emphasis in original).*fn4
Appellant's guilty plea does not bar these discretionary sentencing challenges, because there was no agreement as to the sentence Appellant would receive. See Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001) (acknowledging precedent that where there are no sentencing restrictions in the plea agreement, the entry of a guilty plea will not preclude a subsequent challenge to the discretionary aspects of ...