Com. v. Cleveland
| Decision Date | 01 July 1987 |
| Citation | 528 A.2d 219,364 Pa.Super. 402 |
| Court | Pennsylvania Superior Court |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Amos CLEVELAND. 1710 Phila. 1986 |
Gaele M. Barthold, Deputy Dist. Atty., Philadelphia, for Commonwealth, appellant.
Robert R. Redmond, Philadelphia, for appellee.
Before POPOVICH, JOHNSON and HESTER, JJ.
Following a non-jury trial, appellee was convicted of knowing or intentional possession of a controlled substance 1 and manufacture, delivery or possession with intent to manufacture or deliver a controlled substance. 2 2 Post-trial motions were denied and appellee was sentenced to a term of incarceration of 11 1/2 to 23 1/2 months followed by 10 years probation. As a condition of parole/probation appellee was ordered to complete at least one year in-patient drug treatment, unless the court ordered differently. The sentence was to run concurrently to the sentence appellant was already serving for robbery. After the Commonwealth filed a petition to reconsider and modify sentence the court vacated the sentence. The court later denied the Commonwealth's petition and re-imposed the above sentence. The Commonwealth appeals to this Court from the judgment of sentence and raises one issue:
DID THE SENTENCING COURT UNREASONABLY DEVIATE FROM THE SENTENCING GUIDELINES IN SENTENCING DEFENDANT, A PREVIOUSLY CONVICTED MURDERER AND ROBBER, TO A SENTENCE MORE THAN FOUR YEARS BELOW THE MINIMUM GUIDELINES FOR THE SALE OF HEROIN?
Before we can reach the merits of the issue of the appropriateness of the sentence we must determine whether there exists a substantial question that the sentence imposed is not appropriate under the sentencing code, 42 Pa.C.S. § 9701 et seq.. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987. If the Commonwealth demonstrates such a question then it can invoke this Court's jurisdiction and obtain appellate review of the trial court's exercise of discretion in sentencing a defendant. Tuladziecki, id.
In compliance with Pa.R.A.P. 2119(f), the Commonwealth sets forth in a separate section of its brief a concise statement of the reasons upon which it relies for allowance of appeal with respect to the discretionary aspects of the sentence. Pa.R.A.P. 2119(f). The Commonwealth states:
Defendant was convicted of selling heroin. Although the pre-sentence investigation predicted recidivism, and despite defendant's record (which includes convictions for murder, robbery and aggravated assault), the sentencing court imposed a sentence of 11 1/2 to 23 1/2 months, to run concurrently with an earlier sentence, and 10 years probation. Since defendant was already incarcerated on another, lengthier sentence, the instant penalty is, in effect, purely probationary.
The sentencing court gave no proper consideration to the protection of the public, the nature and circumstances of the crime, defendant's history and characteristics, the pre-sentence investigation, or the sentencing guidelines. The sentence imposed also depreciates the serious nature of the defendant's crime. See 42 Pa.C.S.A. §§ 9721, 9722, 9725. Thus, the sentence below raises a substantial question as to whether the general scheme established by the Sentencing Code has been followed. The Court's review of this sentencing appeal is, therefore, appropriate.
Given the appellee's record and the seriousness of the crime, the actual sentence imposed by the trial court raises a substantial question as to whether the scheme, as a whole, established by the sentencing code has been compromised. We believe there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. Accordingly, we grant allowance of the appeal, and proceed to examine the merits of the Commonwealth's argument about the sentence.
In reviewing a sentence the legislature has mandated that we shall vacate the sentence and remand the case to the sentencing court with instructions if we find that the court sentenced outside the sentencing guidelines and that the sentence is unreasonable. 42 Pa.C.S. § 9781(c). The legislature has provided that:
In reviewing the record the appellate court shall have regard for:
(1) The nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
The trial court found the offense gravity score for delivery of heroin to be (8) eight and appellee's prior record score to be (6) six. Accordingly, the minimum range under the sentencing guidelines, 204 Pa.Code § 303.1 et seq., is 66 to 90 months, the aggravated minimum range is 90 to 112 months, and the mitigated minimum range is 50-66 months. The sentence imposed by the trial court of 11 1/2 to 23 1/2 months is thus outside the guidelines. We must determine whether such sentence is unreasonable.
The first area which we must address is the nature and circumstances of the offense and the history and characteristics of the defendant. Evidence presented at trial established that a police narcotics officer watched appellee sell several bags of heroin to another man in an abandoned Philadelphia building in the late morning hours of June 23, 1983. The record shows that appellee has been previously convicted on twelve separate occasions as an adult. These convictions include murder in the second degree, robbery, theft, aggravated assault and battery, assault and battery, larceny, possession of a controlled substance as well as other drug related offenses. The convictions date as early as 1958. Appellee has exhibited disrespect for the court system and failed to appear for sentencing before Judge Braxton on a prior robbery conviction. Appellee is currently 50 years old. The record reveals appellee was a heavy drinker and that he had a heroin addiction which grew into a $200 a day habit. Appellee has been offered treatment...
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...a sentence is too lenient under the Sentencing Code, have been treated as discretionary challenges. See e.g., Commonwealth v. Cleveland, 364 Pa.Super. 402, 528 A.2d 219 (1987); Commonwealth v. Cornish, 403 Pa.Super. 492, 589 A.2d 718 (1991). The discretionary sentencing issue can further be......
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