Com. v. Douglass

• Decision Date: 11 January 1988
• Citation: 535 A.2d 1172,370 Pa.Super. 104
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania v. Robert DOUGLASS, Jr., Appellant.

Page 1172

535 A.2d 1172

370 Pa.Super. 104

COMMONWEALTH of Pennsylvania v. Robert DOUGLASS, Jr., Appellant.

Superior Court of Pennsylvania.

Argued Sept. 1, 1987.

Filed Jan. 11, 1988.

Morton J. Earley, Indiana, for appellant.

Pamela E. Miller, Asst. Dist. Atty., Indiana, for Com., appellee.

Before BROSKY, TAMILIA and KELLY, JJ.

TAMILIA, Judge:

This is an appeal from judgment of sentence entered after appellant pled guilty to nineteen (19) counts of various violations of the controlled substance laws. The cumulative sentence imposed totalled five (5) to twenty-five (25) years imprisonment to be followed by five (5) years probation, and payment of the costs of prosecution, $8,153.13, and to pay a fine of $6.

Appellant's only argument on appeal is that the trial court abused its discretion by imposing an excessive sentence. Since this is a challenge to the discretionary aspects of his sentence, appellant must "set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of [the] sentence." Pa.R.A.P. 2119(f). See Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Permission to amend the brief by submitting a post-submission statement concerning the discretionary aspects of sentencing was granted and on October 9, 1987, such a statement was properly filed. According to the statement, appellant believes the sentence is excessive because "the trial court did not fully consider his age, education, prior record, his likelihood of reforming, the fact that the victims were willing participants, no weapon was involved, he has the capacity to change and does not possess the criminal mentality to support a total sentence of five (5) to twenty-five (25) years incarceration." Appellant's brief (supplement) at p. 18.

As we have said in so many cases that they require no citation, sentencing is the domain of the trial judge and generally, that judgment will not be disturbed absent an abuse of discretion, Commonwealth v. Parrish, 340 Pa.Super. 528, 490 A.2d 905 (1985), and if the sentence is within the statutory limits, there is no abuse of discretion unless the sentence is manifestly excessive so as to inflict too severe a punishment. Parrish, supra. In this case, the appellant was charged and found guilty of nineteen (19) counts of various violations of the Controlled Substance, Drug, Device and Cosmetic Act. After his arrest, he intentionally left the Commonwealth in an attempt to avoid prosecution. He was returned from Alaska after lengthy extradition proceedings. In this case, the sentence was well within the minimum range of the sentencing guidelines ¹ and the sentencing judge stated his reasons for the sentence. The trial judge had before him a complete presentence report which he considered and he was, therefore, fully aware of the age and other social factors relating to the appellant. He was concerned on balance, however, with the numerous offenses and seriousness of selling drugs as a full-time occupation for over one year, primarily to young people. We can find no fault in the trial judge's conclusion that this is more onerous than other offenses.

As to application of the sentencing guidelines, despite the recent invalidation of the guidelines by the Supreme Court, a sentence pursuant to the guidelines is not thereby invalidated if, in all other respects, it complies with the sentencing code. ² In this case, the specifically applicable section is 42 Pa.C.S.A. § 9725 Total confinement. ³ All three subsections of that provision are implicated here and justify the sentence imposed. No abuse of discretion is evident and the sentence may not be disturbed. Commonwealth v. Martin, 328 Pa.Super. 498, 477 A.2d 555 (1984).

Judgment of sentence affirmed.

Concurring Statement by BROSKY, J.

Concurring Opinion by KELLY, J.

BROSKY, Judge, concurring.

I join in the Opinion by Tamilia, J., with the particular exception of footnote 1. To the extent that footnote suggests that the sentencing guidelines have an ongoing validity post-Commonwealth v. Sessoms, --- Pa. ----, 532 A.2d 775, (1987), or that allegations of misapplication of the guidelines create a reviewable issue, I would respectfully disagree.

KELLY, Judge, concurring.

Although I agree appellant is not entitled to relief, I write separately to explain why in the instant case I would deny allowance of appeal rather than grant allowance of appeal and address the merits as the majority has done.

As the majority notes, appellant's sole contention on appeal is that the sentence imposed was excessive and that the trial court abused its discretion. This is a challenge to the discretionary aspects of sentence. 42 Pa.C.S.A. § 9781(b); 42 Pa.C.S.A. § 9781(c). Under Pennsylvania law, neither the defendant nor the Commonwealth may take an appeal as of right from the discretionary aspects of sentence. Rather, "[t]he defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. 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 [the Sentencing Code]." 42 Pa.C.S.A. § 9781(b). Our Supreme Court indicated in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), that three distinct steps must be taken to properly raise a challenge to the discretionary aspects of sentence: there must be a timely notice of appeal (see Pa.R.A.P. 902 & Note; Pa.R.A.P. 903); the challenge must be set forth in the statement of questions presented (see Pa.R.A.P. 2116(b)); and, the appellant must include in the brief, immediately preceding argument in support of the challenge, a separate, concise statement of the reasons for allowance of appeal under 42 Pa.C.S.A. § 9721(b) (see Pa.R.A.P. 2119(f)). 522 A.2d at 18-19.

In the instant case, a timely notice of appeal was filed and appellant's challenge to the discretionary aspects of sentence was properly set forth in the statement of questions presented. However, appellant failed to include in his brief a separate, concise statement of the reasons for allowance of appeal under 42 Pa.C.S.A. § 9781(b).

On September 3, 1987, appellant filed a post-argument motion for permission to correct the omission. See Pa.R.A.P. 2501(a). On October 1, 1987, appellant's motion was granted and appellant was given fifteen (15) days to file a Pa.R.A.P. 2119(f) statement as a supplement to appellant's brief. See Commonwealth v. Zeitlen, 366 Pa.Super. 78, 530 A.2d 900 (1987); id., 530 A.2d at 902-05 (Kelly, J., joining and concurring); cf. Commonwealth v. Grove, 363 Pa.Super. 328, 526 A.2d 369, 379 (1987) (per Kelly, J.).

On October 9, 1987, appellant filed the following as his Pa.R.A.P. 2119(f) statement:

Appellant, ROBERT A. DOUGLASS, JR., believes that the Superior Court should accept this Appeal on the discretionary aspects of the sentence imposed by the trial court because he believes it is excessive in light of the crimes to which he pled guilty; that the trial court did not fully consider his age, education, prior record, his likelihood of reforming, the fact that the victims were willing participants, no weapon was involved, he has the capacity to change and does not possess the criminal mentality to support a total sentence of five (5) to twenty-five (25) years incarceration.

Appellant believes that these are important reasons for this Court to consider the merits of his Appeal.

I would find that this statement fails to raise a substantial question as to the appropriateness of the sentence imposed considering the sentencing code as a whole. Appellant merely alleges in the most general and conclusory terms that the trial court failed to give adequate weight to various mitigating factors.

In order to raise a substantial question under 42 Pa.C.S.A. § 9781(b), the separate concise statement under Pa.R.A.P. 2119(f) must set forth factual allegations which establish that:

1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;

2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or

3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable. ¹

See Commonwealth v. Easterling, 353 Pa.Super. 84, 509 A.2d 345 (1986); 42 Pa.C.S.A. § 9781(c). No other allegations are sufficient; the legislature has expressly provided that "[i]n all other cases the appellate court shall affirm the sentence imposed by the sentencing court." 42 Pa.C.S.A. § 9781(c). (Emphasis added). There can be no "substantial question" raised regarding the appropriateness of the sentence imposed when the appellant fails to bring his allegations within the parameters of one of the three exclusive grounds for relief provided by the statute. ²

It should be noted that the efficacy of reliance on this Court's former dictum that "only in exceptional cases and for sufficient reasons may a court deviate from the guidelines," Commonwealth v. Fluellen, 345 Pa.Super. 167, 171, 497 A.2d 1357, 1359 (1985), quoting Commonwealth v. Hutchinson, 343 Pa.Super. 596, 598, 495 A.2d 956, 958 (1985) (emphasis in original), was substantially eroded if not destroyed, sub silentio, by our Supreme Court's decision in Commonwealth v. Tuladziecki, supra.

In Commonwealth v. Tuladziecki, supra, our Supreme Court reviewed at length the broad discretion vested in the sentencing court regarding the application of "general principles" espoused in the Sentencing Code, and the final selection of the sanction options. 522 A.2d at 20 & n. 1. Our Supreme Court then concluded:

It is apparent that the legislature has vested broad...