Com. v. Canfield

• Decision Date: 04 March 1994
• Parties: COMMONWEALTH of Pennsylvania v. Robert CANFIELD, Appellant.
• Court: Pennsylvania Superior Court

Page 46

639 A.2d 46

432 Pa.Super. 496

COMMONWEALTH of Pennsylvania v. Robert CANFIELD, Appellant.

Superior Court of Pennsylvania.

Submitted Oct. 28, 1993.

Filed March 4, 1994.

Albert V.F. Nelthropp, Allentown, for appellant.

Robert L. Steinberg, Dist. Atty., Allentown, for Com., appellee.

Before ROWLEY, President Judge and McEWEN and KELLY, JJ.

ROWLEY, President Judge:

Robert Canfield has appealed from the judgment of sentence which was imposed upon him following his plea of nolo contendere to Criminal Conspiracy to Commit Involuntary Deviate Sexual Intercourse, a felony of the second degree. On appeal, he contends that the sentence was (1) "manifestly excessive" in violation of "the whole spirit and philosophy of the [Sentencing] Guidelines" because it failed to take into account his lack of a prior record and also in that it was greater than the sentence imposed upon his co-defendant; (2) that it was imposed without adequate consideration of his rehabilitative needs; and finally, (3) that the sentencing court failed to provide a contemporaneous statement setting forth its reasons for departing upward from the Guidelines in sentencing him to the maximum term of incarceration allowed by law. After careful consideration of the arguments presented to us on these issues and following a conscientious review of the record, we conclude that appellant's claims are meritless. Therefore, we affirm appellant's judgment of sentence.

The trial court accurately and succinctly set forth the factual underpinnings of this case, as follows "... [A]ppellant and his female co-defendant [who was also his fiancee] were managers of a Denny's Restaurant at which [the victim] worked as a waitress. The three voluntarily ingested cocaine and alcohol together at appellant's apartment to the extent that the victim suffered what sounds like a black-out. When she again became aware of events, she was lying naked on the bed of appellant and the co-defendant in the bedroom of [appellant and his co-defendant in] their apartment. The co-defendant was lying beside the victim. The appellant was pinning the victim's hands above her head. Appellant attempted to insert his penis in[to] the victim's mouth several times but was unsuccessful. [Meanwhile,] the female co-defendant performed oral sex on the victim against [the victim's] will. All this drew resistance and screams from the victim which alerted neighbors[,] who [then] called the police. When the police arrived, the victim ran from the apartment half clothed and screaming hysterically."

(Trial Court Opinion, 6/13/93, p. 3). Both appellant and his co-defendant were then arrested.

Appellant was charged with two counts of rape, two counts of involuntary deviate sexual intercourse, two counts of aggravated indecent assault, and two counts of indecent assault. Thereafter, a plea bargain was reached in which the Commonwealth agreed to drop all eight of the above-mentioned charges if appellant would plead nolo contendere to Criminal Conspiracy to Commit Involuntary Deviate Sexual Intercourse.

The criminal information was then amended to reflect the conspiracy charge and in accordance with the plea agreement, appellant pled no contest. Before he entered his plea, however, the trial court advised appellant that he could potentially receive up to the maximum of ten years in jail and a $25,000.00 fine. Appellant stated that he understood this, and further, he acknowledged his understanding that there was no agreement regarding the sentence the court would impose. Following preparation of a pre-sentence investigation report, appellant was sentenced to a term of imprisonment of not less than five (5) nor more than ten (10) years. ¹ This timely appeal followed.

Before addressing the merits of appellant's claims, we note that this appeal is only as to the discretionary aspects of sentencing. The legality of the sentence is not at issue. As noted recently by this Court in Commonwealth v. Jones, 418 Pa.Super. 93, 613 A.2d 587 (1992) (en banc ):

"[i]n such a case, the appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal. Pa.R.A.P.; Rule 2119(f), 42 Pa.C.S.A.; Commonwealth v. Zelinski, 392 Pa.Super. 489, 573 A.2d 569 (1990), alloc. denied, 527 Pa. 646, 593 A.2d 419 (1990); Commonwealth v. Stalnaker, 376 Pa.Super. 181, 545 A.2d 886 (1988). 'Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.' 42 Pa.C.S.A. § 9781(b), referring to Chapter 97 (Sentencing). The determination of whether a particular issue constitutes a substantial question as to the appropriateness of sentence must be evaluated on a case-by-case basis; the court will be inclined to allow [the] appeal where the 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 which underlie the sentencing process. Commonwealth v. Catanch, 398 Pa.Super. 466, 581 A.2d 226 (1990)."

Jones 418 Pa.Super. at 99-100, 613 A.2d at 590.

As to the first argument advanced in support of appellant's excessiveness claim, we rely upon Jones, supra in concluding that it fails to raise a substantial question pursuant to 42 Pa.C.S.A. § 9781(b). In Jones, an appellant's contention that his sentence was "manifestly excessive" due to the lack of a prior record was held not to raise a substantial question. Id. at 100, 613 A.2d at 590.

As to the second portion of appellant's excessiveness claim, we find that a substantial question has been presented because a disparity between sentences imposed upon co-defendants does touch upon the fundamental norms which underlie the sentencing process. Having reviewed the issue, however, we conclude that it is without merit. In so concluding, we rely upon Commonwealth v. Jorden, 333 Pa.Super. 291, 482 A.2d 573 (1984). "The appellant's claim is that the sentence is excessive, not that the sentencing judge failed to state on the record the reason for the disparate sentences." Id. at 305 n. 7, 482 A.2d at 580 n. 7 (emphasis added). Thus, in the instant case, as in Jorden, "[t]he imposition of sentence is a matter vested in the sound discretion of the sentencing judge. [citations omitted]. We find no abuse of discretion," Id. at 305, 482 A.2d at 580.

Moving on to appellant's second issue, we refer to Commonwealth v. Smith, 394 Pa.Super. 164, 575 A.2d 150 (1990) in deciding that it, too, fails to raise a substantial question. In Smith, this Court decided that an argument concerning the weight that a sentencing court gives to legitimate sentencing factors (such as a defendant's rehabilitative needs) does not raise a § 9781(b) substantial question.

Appellant's third claim, however, does raise a substantial question in that it advances at least a colorable argument that the trial judge's actions were inconsistent with a specific provision of the sentencing code. In support of our conclusion in this regard, we again rely upon Jones, supra and Commonwealth v. Thomas, 370 Pa.Super. 544, 550-551, 537 A.2d 9, 12 (1988). In both cases, this Court found a substantial question existed as to the appropriateness of the sentence imposed because, in fashioning it, the sentencing court failed to provide sufficient reasons of record for deviating upward from the guidelines.

The pertinent provision of the Sentencing Code, 42 Pa.C.S.A. § 9721(b), states as follows:

"General Standards.--In selecting from the alternatives [of probation, partial or total confinement, and/or a fine] the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. The court should also consider [the guidelines promulgated by the] Pennsylvania Commission on Sentencing ... In every case in which the court imposes a sentence for a felony or misdemeanor the court shall make as part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed. In every case where the court imposes a sentence outside the sentencing guidelines adopted by the Pennsylvania Commission on Sentencing ..., the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and resentencing the defendant."

42 Pa.C.S.A. § 9721(b). (emphasis added).

In Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984), this Court observed that if:

"... the sentence imposed [is] outside the guidelines provided by the Pennsylvania Commission on Sentencing, two issues are raised: (1) was the statement of the court made [and recorded] at sentencing in [appellant's] presence ... a 'contemporaneous written statement'; and if so then, (2) is the statement sufficient to meet the requirements of the act."

Id. at 68, 476 A.2d at 457. (emphasis added).

We decide that, in the instant case, as in Royer, supra, the sentencing court's statement made on the record and in appellant's presence is a "contemporaneous written statement" within the meaning of § 9721(b). Id. at 69, 476 A.2d at 457. See also: Commonwealth v. Clever, 395 Pa.Super. 192, 195-196, 576 A.2d 1108, 1109 (1990). Thus, we reach the second step of the analysis, in which we are required to determine whether the sentencing court's statement of reasons is statutorily sufficient.

In addressing this sentencing issue, we observe that:

"... the sentencing function is a matter vested in the sound discretion of the trial court whose judgment will not be disturbed by an appellate court in the absence of an abuse of discretion. ...