Com. v. Dickerson
| Decision Date | 08 May 1991 |
| Docket Number | No. 1673,1673 |
| Citation | 590 A.2d 766,404 Pa.Super. 249 |
| Parties | COMMONWEALTH of Pennsylvania v. Eric DICKERSON, Appellant. Phila. 1989 |
| Court | Pennsylvania Superior Court |
Vincent G. Iannello, Media, for appellant.
Dennis C. McAndrews, Asst. Dist. Atty., Media, for Com., appellee.
Before BECK, POPOVICH and HOFFMAN, JJ.
This appeal is from the judgment of sentence imposed following appellant's guilty plea to charges of rape, involuntary deviate sexual intercourse, and possessing instruments of crime. Appellant contends that the sentence imposed was an abuse of discretion because it was harsh and excessive under the circumstances. In addition, he contends that sentencing counsel was ineffective for failing to (1) object to the imposition of a mandatory sentence pursuant to 42 Pa. C.S.A. § 9714, and (2) object to the prosecutor's erroneous computation of the sentencing guideline ranges. For the reasons that follow, we disallow the appeal as to appellant's first claim, and we vacate the judgment of sentence and remand for an evidentiary hearing on appellant's ineffectiveness claims.
The relevant procedural facts have been aptly summarized by the court below, as follows:
On the evening of December 31, 1986, Defendant raped and committed involuntary deviate sexual intercourse on two separate women in the city of Chester. The attacks were similar, but not related. Two separate sets of criminal informations resulted from the attacks. Both attacks were at knife point. In both instances Defendant dragged the women off the street into an abandoned building. One attack occurred at 9:45 p.m. and the other occurred at approximately 11:00 p.m.
On February 11, 1988 Defendant was convicted by a jury of the crimes related to the first attack. (Information No. 8988-86.) On September 13, 1988 Defendant was sentenced to an aggregate term of imprisonment for the first attack of not less than seven and one-half (7 1/2) years nor more than fifteen (15) years. Defendant filed an appeal. The judgment of sentence in that case was affirmed by the Superior Court on July 31, 198. (See: No. 2917 Philadelphia 1988.)
The instant case involves the second attack. On April 4, 1989, Defendant entered pleas of guilty to three separate criminal informations related to the second attack. [The informations charged appellant with rape, involuntary deviate sexual intercourse, and possessing instruments of crime.] At the time that the guilty pleas were entered, the Defendant was on notice of the fact that the Commonwealth intended to proceed under the mandatory sentencing provisions of 42 Pa. C.S.A. § 9714 related to second and subsequent offenses.
On April 10, 1989 Defendant was sentenced for the crimes related to the second attack. The sentences were designated to run consecutively to the sentences imposed on Information Nos. 8988-86, i.e., those imposed on September 13, 1988 related to the first attack. [The aggregate sentence imposed on these charges was ten-to-twenty years imprisonment.] On April 18, 1989 Defendant filed a Motion To Modify/Motion For Reconsideration. A hearing was scheduled on this Motion for May 15, 1989. On April 27, 1989 an Order was entered vacating the sentences imposed on April 10, 1989. This order was entered so that the Court would retain jurisdiction over the matter until the hearing could be held. At the conclusion of the hearing, which was actually held on May 19, 1989, Defendant was resentenced to a total term of imprisonment of not less than seven and one-half (7 1/2) years nor more than fifteen (15) years. The sentences were again designated to run consecutively to the sentences imposed under Information No. 8988-86. On May 25, 1989, Defendant filed another Motion To Modify/Motion For Reconsideration. This Motion alleged, inter alia, that the reasons for the Court's sentence on May 19, 1989 were unclear. On June 13, 1989 a hearing was held on this Motion. At the hearing the Court restated the reasons for its sentence and the Motion was denied. This appeal followed.
Trial Court Opinion at 1-3 (footnotes omitted).
Appellant first contends that the sentence imposed by the court was an abuse of discretion because it was harsh and excessive under the circumstances. Appellant's brief complies with the requirements of Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), in that it contains a statement of the reasons relied upon for allowance of appeal from the discretionary aspects of sentencing. However, after close review of this statement, we find that the claim does not present a substantial question that the sentence imposed was inappropriate under the Sentencing Code as a whole. See Commonwealth v. Tuladziecki, supra; 42 Pa.C.S.A. § 9781(b). The bulk of appellant's 2119(f) statement is devoted to an argument that the sentence was an abuse of discretion because it exceeded the sentencing guidelines. However, appellant did not include this specific claim in his "Statement of Questions Involved," and there is no discussion of this point in the argument section of appellant's brief. Thus, we cannot allow an appeal as to this point. The only other claim identified in the 2119(f) statement is an argument that the sentences were inappropriate in light of certain mitigating factors. Specifically, appellant argues that:
[t]hese grossly excessive sentences were imposed in spite of the fact that (1) the crimes committed on the evening in question constituted Petitioner's first significant contact with the criminal authorities; (2) he showed remorse for his crime; and (3) ... he pleaded guilty in order to spare the victim the ordeal of testifying again in court.
Brief for Appellant at 9. Appellant does not allege that the sentencing court was unaware of these mitigating circumstances. Instead, he merely suggests that the court did not properly weigh these factors. This type of claim, which simply asks us to substitute our judgment for that of the sentencing court, does not present a substantial question that the sentence was inappropriate under the Sentencing Code as a whole. See Commonwealth v. Tuladziecki, supra at 515, 522 A.2d at 20; Commonwealth v. Rogers, 386 Pa.Super. 476, 481, 563 A.2d 165, 168 (1989); Commonwealth v. Billett, 370 Pa.Super. 125, 131, 535 A.2d 1182, 1185 (1988). Accordingly, we must disallow the appeal from the discretionary aspects of sentencing. See, e.g., Commonwealth v. Tuladziecki, supra.
Appellant's remaining two claims concern the alleged ineffectiveness of his prior counsel. Although these claims were not raised in the court below, appellant is now represented by new counsel, and, because present counsel has raised the ineffectiveness claims at the first opportunity when appellant was no longer represented by trial counsel, we may consider them on direct appeal. See, e.g., Commonwealth v. Holmes, 482 Pa. 97, 105 n. 3, 393 A.2d 397, 401 n. 3 (1978); see also Commonwealth v. DeGeorge, 506 Pa. 445, 485 A.2d 1089 (1984). Counsel, of course, is presumed to be effective, and the burden of demonstrating ineffectiveness rests on appellant. See, e.g., Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984). To prevail on a claim of ineffectiveness, appellant must show that his underlying contention possesses arguable merit, that the course chosen by counsel had no reasonable basis designed to serve his interests, and that counsel's conduct prejudiced him. E.g., Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). With this standard in mind, we turn to appellant's underlying claims.
Both of appellant's ineffectiveness claims concern counsel's performance during sentencing. 1 Appellant first contends that counsel should have objected to the court's imposition of a mandatory minimum sentence pursuant to 42 Pa.C.S.A. § 9714. At the time pertinent to this appeal, § 9714 provided, in relevant part, as follows:
§ 9714. Sentences for second and subsequent offenses
(relating to arson and related offenses), kidnapping or robbery as defined in 18 Pa. C.S. § 3701(a)(1)(i), (ii), or (iii) (relating to robbery), or attempt to commit any of these crimes, or who is convicted of aggravated assault in which the offender intentionally, knowingly or recklessly causes serious bodily injury to another under circumstances manifesting extreme indifference to the value of human life, shall, if they have previously been convicted of a crime of violence as specified in subsection (b), be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.
(1) The offender was previously convicted in this Commonwealth or any other state or the District of Columbia or in any Federal court of murder, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii), or (iii), arson as defined in 18 Pa. C.S. § 3301(a), kidnapping or aggravated assault in which the offender intentionally, knowingly or recklessly causes serious bodily injury to another under circumstances manifesting extreme indifference to the value of human life, an equivalent crime under the laws of the Commonwealth in effect prior to the effective date of Title 18 () or an equivalent crime in another jurisdiction. The previous conviction need not be for the same crime as the instant offense for this...
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