Com. v. Duffy

• Decision Date: 04 April 1985
• Citation: 341 Pa.Super. 217,491 A.2d 230
• Parties: COMMONWEALTH of Pennsylvania v. Robert J. DUFFY, Sr., a/k/a Robert J. Duffy, a/k/a Robert James Duffy, Appellant.
• Court: Pennsylvania Superior Court

Page 230

491 A.2d 230

341 Pa.Super. 217

COMMONWEALTH of Pennsylvania v. Robert J. DUFFY, Sr., a/k/a Robert J. Duffy, a/k/a Robert James Duffy, Appellant.

Superior Court of Pennsylvania.

Submitted Dec. 19, 1984.

Filed April 4, 1985.

Lorinda L. Hinch, Asst. Public Defender, Mercer, for appellant.

Charles S. Hersh, Asst. Dist. Atty., Hermitage, for Commonwealth, appellee.

Before ROWLEY, OLSZEWSKI, and POPOVICH, JJ.

OLSZEWSKI, Judge:

This is an appeal from judgments of sentence on four counts of theft by failure to make required disposition of funds received. ¹ Appellant contends that the sentencing judge abused his discretion in 1) ordering the sentences to be consecutive to other sentences being served in another county, and 2) sentencing appellant in the aggravated range of the sentencing guidelines.

The facts of this case are as follows: Four informations were filed between September 6 and September 12, 1983, charging appellant with theft by deception. The charges involved appellant's receipt of money from various people for goods appellant then never delivered. The informations were later amended to charge theft by failure to make required disposition of funds received. Appellant pleaded guilty to all four informations and was sentenced to six to twelve months on the first count, and eighteen to forty-eight months on each of the other three counts. The sentencing judge ordered that the four sentences be concurrent to one another, but consecutive to time already being served in Crawford County. A motion to modify sentence was denied without a hearing and this appeal followed.

Appellant first argues that the sentencing judge abused his discretion by ordering the sentences to be served consecutively to sentences being served in Crawford County. Since this issue was not raised in appellant's motion to modify sentence, it has been waived. Commonwealth v. Brown, 288 Pa.Super. 171, 431 A.2d 343 (1981), Commonwealth v. Bethel, 295 Pa.Super. 312, 441 A.2d 1248 (1982).

Appellant next contends that his sentences of eighteen to forty-eight months were improper because the sentencing judge failed to provide adequate reasons for sentencing him within the aggravated range of the sentencing guidelines. ² We do not agree.

Section 303.3 of the sentencing guidelines, 42 Pa.C.S. § 9721, 204 Pa.Code § 303.3 (Purdons 1982) provides:

§ 303.3 AGGRAVATING OR MITIGATING CIRCUMSTANCE

When the court determines that aggravating or mitigating circumstances warrant:

(1) It may sentence:

* * *

(ii) within the aggravated or mitigated range provided in § 303.9 (relating to sentence range chart) for all other convictions; and

(2) It shall state the reasons therefore on the record.

This is the sentencing commission's only statement regarding aggravating and mitigating circumstances. The guidelines direct only that reasons be given; nowhere is any instruction or guidance given regarding what constitutes sufficient reasons for sentencing in either range. Furthermore, Pennsylvania decisional authority is also silent concerning this sufficiency issue.

Therefore, the issues before this court are: 1) what reasons constitute adequate reasons for sentencing a defendant within the aggravated range; and 2) by what standard should a judge's statement of reasons be reviewed.

A review of the history of the Pennsylvania Sentencing Commission's guidelines is helpful at this juncture. The first version of the commission's guidelines also had a section dealing with the aggravation and mitigation of a guideline sentence. However, unlike the current guidelines, this version contained an exclusive list of the aggravating circumstances which warranted an increase in a standard guideline's sentence. This list contained the following:

(c) AGGRAVATING CIRCUMSTANCES

The following exclusive list of aggravating circumstances warrant an increase in the normal guideline sentence:

(1) The defendant has a history of violent conduct which is not reflected in the offender score. This does not include juvenile conduct.

(2) The defendant inflicted severe and determined cruelty on the victim when committing the offense.

(3) The victim was particularly vulnerable due to age, infirmity, or reduced physical or mental capacity, which was known or should have been known to the offender.

(4) The offender was the leader in the crime of conviction in which there were multiple participants.

(5) The offense involved more than one victim.

(6) The defendant used his position of trust, public office, confidence, fiduciary obligation, or status to facilitate the commission of the offense.

§ 303.4 Sentencing guidelines, 10 Pa. Bulletin 43, at 4186, October 25, 1980.

The Pennsylvania Legislature rejected the first version of the sentencing guidelines and insisted upon substantial revisions before finally enacting the guidelines on May 14, 1982. Included among the revisions was the deletion of § 303.4's list of aggravating circumstances.

It seems clear to this Court that the legislature, while mindful of the guideline's purpose to promote more uniform sentencing across the Commonwealth, nevertheless, feared that adherence to an exclusive list of factors would unduly fetter the sentencing judge's traditional discretion in this area. The legislature realized that no commission, no matter how competent, could ever anticipate the myriad of sentencing situations that judges face, and that, therefore, flexibility must be maintained in any sentencing scheme.

With this background in mind, we now turn to the facts of the instant case. In the section of the sentencing form, reserved for a statement of the judge's reasons for sentencing in the aggravated range, Judge Acker wrote:

"This defendant has a criminal history commencing in 1962, encompassing every year but 1982 through 1983. He has three convictions for forgery, seven convictions for bad checks and a theft by deception other than the four thefts for which he is sentenced. He stole from innocent parties who relied upon him to do work for them for which he received prepayment. He is fifty-two years of age. Because of the number of prior offenses, a long criminal history, and the...