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Commonwealth v. Tobin

Superior Court of Pennsylvania

April 1, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
SCOTT CHARLES TOBIN, Appellant

Submitted February 18, 2014

As Amended April 2, 2014.

Page 664

Appeal from the Judgment of Sentence of the Court of Common Pleas, Wyoming County, Criminal Division, No(s): CP-66-CR-0000250-2012. Before SHURTLEFF J.

Deborah Albert-Heise, Tunkhannock, for appellant.

Jeffrey Mitchell, District Attorney, Tunkhannock, for Commonwealth, appellee.

BEFORE: BOWES, OLSON, and FITZGERALD,[*] JJ.

OPINION

Page 665

BOWES, J.:

Scott Charles Tobin appeals from the judgment of sentence of fifteen to sixty months incarceration imposed by the trial court after he pled guilty to possession with intent to deliver (" PWID" ) marijuana. We vacate and remand for imposition of a Recidivism Risk Reduction Incentive (" RRRI" ) minimum sentence.

The Commonwealth charged Appellant with PWID, conspiracy to commit PWID, possession of marijuana, possession of drug paraphernalia, and three counts each of corruption of minors, and recklessly endangering another person (" REAP" ). After undergoing an oral colloquy, Appellant entered a guilty plea to the PWID charge only. Specifically, Appellant admitted to possessing with intent to deliver twenty marijuana plants. This was Appellant's first offense. As a result of the plea agreement, the Commonwealth withdrew the remaining charges. The court, after considering a pre-sentence investigation report, a sentencing memorandum filed by Appellant, and listening to Appellant, sentenced Appellant on March 13, 2013, to fifteen to sixty months incarceration.[1] Appellant filed a timely motion for modification, contending that his aggravated range sentence was improper. He averred that there were no facts in the record demonstrating that he was a threat to the public, or that the severity of the offense warranted an aggravated sentence. Appellant also challenged the court's reasoning that he committed the offense in the presence of his three children. According to Appellant, the record showed that his children were thriving and honor roll students. The sentencing court denied that motion, and this appeal ensued.

The court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant's plea counsel withdrew and the court appointed present counsel. Substitute counsel requested and was granted an extension to file a concise statement. Appellant timely filed his concise statement, and the court authored its Pa.R.A.P. 1925(a) opinion. Therein, the court indicated that it sentenced Appellant in the aggravated range based on his lack of remorse and because he operated a sophisticated marijuana growing operation in the presence of his three children. The matter is now ripe for our review. Appellant presents two issues for this Court's consideration.

A. Whether the sentencing court abused its discretion by considering allegations which formed the basis of charges nolle prossed pursuant to Appellant's plea agreement as a factor justifying enhancing his sentence.
B. Whether the Appellant's sentence is illegal in that it violates his due process rights as embodied in the Fourteenth Amendment of the United States Constitution and Article ...

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