Com. v. Guth

• Decision Date: 24 June 1999
• Citation: 735 A.2d 709
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Russell GUTH, Appellant.
• Court: Pennsylvania Superior Court

735 A.2d 709

COMMONWEALTH of Pennsylvania, Appellee, v. Russell GUTH, Appellant.

Superior Court of Pennsylvania.

Argued February 9, 1999.

Filed June 24, 1999.

Jeanette D. Dickerson, Public Defender, Hatboro, for appellant.

Patricia E. Coonahan, Asst. Dist. Atty., Norristown, for Com., appellee.

Before STEVENS, LALLY-GREEN and OLSZEWSKI, JJ.

STEVENS, J.:

¶ 1 This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Montgomery County following Appellant's guilty plea to the charge of criminal attempt at burglary. Herein, Appellant's sole contention is that the sentencing court abused its discretion in sentencing Appellant outside of the Sentencing Code's aggravated range. We affirm.

¶ 2 The relevant facts and procedural history are as follows: On October 11, 1997, Appellant left the Norristown State Hospital and proceeded to a residence located on Forest Avenue in West Norristown Township. After attempting to break into the residence, Appellant was arrested and charged with various offenses in connection with the incident.¹ On March 19, 1998, Appellant entered an open plea of guilty but mentally ill to the charge of attempted burglary,² and, on May 14, 1998, Appellant was sentenced to four to twenty years imprisonment. Following the denial of Appellant's motion for reconsideration of sentence, this appeal was filed.

¶ 3 On appeal, Appellant contends that the sentencing court abused its discretion in sentencing Appellant above the aggravated range outlined in the sentencing guideline and that such a departure resulted in an unreasonable sentence.³ Because Appellant's issue challenges the discretionary aspects of sentencing, we must first decide whether to accept Appellant's appeal.⁴ 42 Pa.C.S.A. § 9781. "Appellant's brief contains the requisite statement of reasons relied upon in support of appeal as required by Pa.R.A.P. 2119(f).... Therefore, we must determine if Appellant ha[s] raised a substantial question that the sentence imposed is not appropriate under the Sentencing Code." Commonwealth v. Nixon, 718 A.2d 311, 315 (Pa.Super.1998) (citation omitted). "Whether a claim constitutes a substantial question must be evaluated on a case by case basis." Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa.Super.1997) (citation omitted).

¶ 4 The sentencing court sentenced Appellant above the aggravated range outlined in the Sentencing Code. As such, a substantial question is raised only if the sentence is unreasonable. Commonwealth v. Smith, 543 Pa. 566, 673 A.2d 893 (1996); Nixon, supra.

In his Pa.R.A.P. 2119(f) statement, Appellant avers that we have jurisdiction to hear this appeal since "[t]he sentence imposed is outside the guidelines and unreasonable." Appellant's Brief at 10. This Court has held "that an appeal from the discretionary aspects of a sentence will be allowed where a defendant alleges that his sentence is outside the guidelines and unreasonable." Commonwealth v. Gibson, 716 A.2d 1275, 1276 (Pa.Super.1998) (citation omitted). Accordingly, we find that Appellant has raised a substantial question as to the appropriateness of his sentence and we shall consider the merits of this issue on appeal. Id.

¶ 5 "The standard of review in sentencing is well settled. Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion." Commonwealth v. Burkholder, 719 A.2d 346, 350 (Pa.Super.1998) (citation omitted).

In sentencing outside the guidelines, the sentencing judge must follow the mandate of § 9721(b) of the Sentencing Code, which provides in pertinent part:

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 reasons or reasons for the deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and re-sentencing the defendant.

Gibson, 716 A.2d at 1276-77 (citations omitted).

[Moreover,] [i]n exercising its discretion, the trial court must consider the character of the defendant and the particular circumstances of the offense in light of the legislative guidelines for sentencing, and the court must impose a sentence that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant.

Burkholder, 719 A.2d at 350 (citations omitted).

¶ 6 In this case, we find that the sentencing court made a sufficient contemporaneous statement when it imposed Appellant's sentence. For example, the sentencing court considered the gravity of the offense, noting that Appellant was apprehended while attempting to enter a home so that he could have sex with a child. N.T. 5/14/98 at 26, 28. The sentencing court also considered the need to protect the public from Appellant, indicating that Appellant's attitude demonstrated that he would attempt to molest a child again if given the opportunity.⁵ N.T. 5/14/98 at 25. Moreover, the sentencing court indicated that Appellant had not responded well to medications, and that he was uncooperative with the Norristown State Hospital's personnel.⁶ N.T. 5/14/98 at 26. Thus, the sentencing court concluded that Appellant would be rehabilitated only if he were sentenced to a period of incarceration. In addition, it is clear that the sentencing court reviewed Appellant's pre-sentence investigation report. Where a pre-sentence investigation report exists, we presume that the sentencing judge was aware of the relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). Also, a review of the entire sentencing transcript indicates that the sentencing court had a recognition of the applicable sentencing range and the deviation of the sentence from that range. See Commonwealth v. Rodda, 723 A.2d 212 (Pa.Super.1999)

.

¶ 7 Finally, we note that Appellant suggests that the sentencing court should not have imposed a term of incarceration since the victims did not want Appellant to be imprisoned and the...