Com. v. Hartz

• Citation: 532 A.2d 1139,367 Pa.Super. 267
• Decision Date: 16 October 1987
• Docket Number: No. 3274,3274
• Parties: COMMONWEALTH of Pennsylvania v. Bradley E. HARTZ, Appellant. Phila. 1983.
• Court: Superior Court of Pennsylvania

Page 1139

532 A.2d 1139

367 Pa.Super. 267

COMMONWEALTH of Pennsylvania v. Bradley E. HARTZ, Appellant.

No. 3274 Phila. 1983.

Superior Court of Pennsylvania.

Argued May 12, 1986.

Filed Sept. 1, 1987.

Reargument Denied Oct. 16, 1987.

Heather J. Mattas and Charles M. Nester, Asst. Public Defenders, Pottstown, for appellant.

Stuart B. Suss, West Chester, Asst. Dist. Atty., for Com., appellee.

Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, McEWEN, DEL SOLE, BECK, TAMILIA, KELLY and JOHNSON, JJ.

DEL SOLE, Judge:

Appellant appeals the judgment of sentence imposed following his guilty plea to charges of Unlawful Restraint, Recklessly Endangering Another Person, Terroristic Threats and Aggravated Assault. The issues raised on appeal relate to sentencing matters. Appellant first alleges five bases for finding the deadly weapons enhancement provisions of the Sentencing Guidelines, 42 Pa.C.S.A. § 9721, 204 Pa.Code Ch. 303, unconstitutional. In addition, he maintains the sentence imposed was excessive; the sentencing judge failed to state upon the record the reasons for the sentence; and, the sentencing judge failed to consider the circumstances of the crime and the history, character and condition of the Appellant. For the following reasons we find we cannot reach the merits of these claims and, therefore, we affirm the judgment of sentence.

Appellant was first sentenced on November 10, 1983. At that time, the court imposed a total sentence of 18 to 36 months incarceration, 7 years probation and a $1,000.00 fine. The court also ordered Appellant to pay the costs of prosecution and to make restitution in the amount of $20.00. On November 17, 1983, Appellant filed a timely Motion to Reconsider and Modify Sentence. The court granted Appellant's motion and on November 22, 1983, it vacated its previous sentence and imposed a sentence modifying the prison term to 16 to 36 months and the probationary period to 5 years. At the close of the second sentencing hearing, Appellant was informed by the court that he had ten days in which to file an application with the court for reconsideration of his sentence. Nevertheless, Appellant failed to file such a petition and, instead, filed an appeal from the November 22nd sentence with this court on December 11, 1983.

This Court has had occasion to consider a similar set of circumstances in Commonwealth v. Cottman, 327 Pa.Super. 453, 476 A.2d 40 (1984). Therein, it was noted:

Appellant correctly filed a motion to modify his original sentence, as required by Pa.R.Crim.P. 1410. The principal purpose of this rule is to provide the sentencing court with the first opportunity to modify its sentence and to correct any errors that may have occurred at sentencing. Commonwealth v. Burtner, 307 Pa.Super. 230, 235, 453 A.2d 10, 12 (1982), and cases cited therein. In the absence of such a motion, a defendant may only seek appellate review of the legality of his sentence. Commonwealth v. DeCaro, 298 Pa.Super. 32, 444 A.2d 160 (1982). Failure to present claims of abuse of discretion to the sentencing court constitutes waiver. Commonwealth v. Boyce, 304 Pa.Super. 27, 450 A.2d 83 (1982); Commonwealth v. Dumas, 299 Pa.Super. 335, 445 A.2d 782 (1982).

Although appellant did afford the sentencing court the opportunity to adjust its initial sentence, he failed to provide an opportunity to that court with respect to the amended sentence, which was imposed following the vacation of the initial sentence. The issue raised instantly alleges that error was committed at the second sentencing hearing. Since appellant's initial sentence was vacated and no motion to reconsider appellant's current sentence was filed, this issue is waived.

Id., at 327 Pa.Super. at 460-461, 476 A.2d at 44.

For the reasons set forth in Commonwealth v. Cottman, we find waived Appellant's claims of error, with the exception of the constitutionality of § 9721. ¹ The constitutional questions raised by Appellant are viewed as challenges to the legality of his sentence and are not waived for failure to be included in a Motion for Reconsideration. Commonwealth v. Cooke, 342 Pa.Super. 58, 492 A.2d 63 (1985).

Although the constitutional questions raised in this appeal are not waived, for other reasons we are unable to consider these claims. Appellant seeks our review of the constitutionality of the deadly weapon enhancement section of the Sentencing Guidelines. The record makes clear, however, that Appellant was not affected by the potential applicability of § 9721.

Appellant's counsel specifically asked the sentencing court whether it added the enhancement provisions when calculating Appellant's sentence. The court responded:

THE COURT: It's considered. The guideline speaks to enhancement.

Frankly, I don't intend specifically attach it to the sentence that I impose. Well, remember what these charges started out being when we were talking about criminal attempt homicide and kidnapping, and thing like that. I think an eighteen-month period of imprisonment is rather modest under the circumstances, although we appreciate those charges are not before us. They are factual contentions out of which this criminality comes, and I think with that in mind, whether or not we had a weapons enhancement, I can't see a minimum period of certainly any less than sixteen months in any turn of events.

So I rather figure it's in there, but don't intend to separately set it forth in any way because I think whether it existed or not, my sentence would be unchanged. (S.T. 11-22-83 at 4).

Where a person is not prejudicially affected by the statute in the case under review, that individual is not entitled to be heard on the question of the statute's alleged unconstitutionality. Commonwealth v. Samuels, 354 Pa.Super. 128, 511 A.2d 221, 230 (1986). In the instant case, the court, by its comments, reveals Appellant suffered no prejudice by operation of the statute.

Because of the factual circumstances in this case, we decline to reach the issue of the constitutionality of § 9721. ² In making this determination we are mindful of the "well established proposition that a court is not to rule on the constitutionality of a statute unless it is absolutely necessary to do so in order to decide the issue before it". Commonwealth v. Samuels, supra.

Judgment of sentence affirmed.

CAVANAUGH, McEWEN and BECK, JJ., join.

CIRILLO, President Judge, concurs in an opinion in which BROSKY and JOHNSON, JJ., join.

KELLY, J., concurs in an opinion.

TAMILIA, J., dissents in an opinion.

CIRILLO, President Judge, concurring:

I concur in the majority's decision not to disturb the judgment of sentence of sixteen to thirty-six months' imprisonment imposed on appellant for unlawful restraint and related crimes. However, I write separately to register my disagreement with the dictum in the majority opinion, and the statements in the dissenting opinion, that appellant has preserved his constitutional challenges to the deadly weapon enhancement provision of the Sentencing Guidelines, 204 Pa.Code § 303.4, reprinted in 42 Pa.C.S.A. § 9721 note (1982), despite his failure to include them in a motion to modify sentence. I believe that my colleagues' statements that a constitutional challenge to a sentencing provision raises the legality of the sentence and hence can never bewaived are erroneous, and in need of correction before they lead to every sentencing issue being couched in constitutional terms to avoid the consequences of waiving the issue in the trial court.

The Pennsylvania Supreme Court has clearly held that constitutional issues, even sentencing issues based on the constitution, are waived if not properly raised in the trial court. Commonwealth v. Walton, 483 Pa. 588, 600, 397 A.2d 1179, 1185 (1979) (due process attack on restitution statute waived where not presented to sentencing court); Commonwealth v. Lee, 478 Pa. 70, 73 n. 4, 385 A.2d 1317, 1319 n. 4 (1978) (claim that sentencing by judge other than trial judge violated due process had been waived); Commonwealth v. McConnell, 470 Pa. 312, 368 A.2d 646 (1977) (due process and equal protection challenges to imposition of life sentences without minimum terms had been waived); Commonwealth v. Boone, 467 Pa. 168, 181, 354 A.2d 898, 904 (1975) (due process challenge to imposition of minimum sentence waived where not raised at sentencing); Commonwealth v. Strand, 464 Pa. 544, 548, 347 A.2d 675, 677 (1975) (equal protection challenge to sentencing court's failure to impose minimum sentence waived where not raised at sentencing); Commonwealth v. Piper, 458 Pa. 307, 309-11, 328 A.2d 845, 847 (1974) (same); accord Commonwealth v. Thurmond, 268 Pa.Super. 283, 287, 407 A.2d 1357, 1359 (Hoffman, J.) (Superior Court wouldn't consider constitutional challenge to sentencing court's consideration of defendant's false testifying where only challenge raised below was that such reliance was improper on facts of case), allowance of appeal denied, 268 Pa.Super. 283, 407 A.2d 1357 (Pa.1979); Commonwealth v. Rutherford, 252 Pa.Super. 348, 350, 381 A.2d 952, 953 (1977) (claims that sentencing violated due process and right to speedy sentencing waived where not presented to sentencing court); Commonwealth v. Olsen, 247 Pa.Super. 513, 523, 372 A.2d 1207, 1212 (1977) (claim that consecutive sentences violated double jeopardy waived where not raised below), vacated on other grounds, 487 Pa. 499, 410 A.2d 299 (1980); Commonwealth v. Henderson, 234 Pa.Super. 525, 528, 341 A.2d 195, 196-97 (1975) (Hoffman, J.) (equal protection challenge to sentencing statute waived where not raised at sentencing); Commonwealth v. Jefferson, 234 Pa.Super. 337, 338 A.2d 657 (same), allowance of appeal denied, 234 Pa.Super. xxvii, 338 A.2d 657 (Pa.), cert. denied, 423 U.S. 947, 96 S.Ct. 362, 46 L.Ed.2d 281 (1975); see also Commonwealth v. Henderson, 482 Pa. 359, 364-65, 393 A.2d 1146, 1148 (1978) (plurality opinion) (double jeopardy attack on sentence...