Com. v. Johnson

• Decision Date: 16 October 1995
• Citation: 666 A.2d 690,446 Pa.Super. 192
• Parties: COMMONWEALTH of Pennsylvania v. Robert L. JOHNSON, Appellant.
• Court: Pennsylvania Superior Court

Page 690

666 A.2d 690

446 Pa.Super. 192

COMMONWEALTH of Pennsylvania v. Robert L. JOHNSON, Appellant.

Superior Court of Pennsylvania.

Submitted Aug. 14, 1995.

Filed Oct. 16, 1995.

Joseph P. Burt, Public Defender, Erie, for appellant.

William A. Dopierala, Assistant District Attorney, Erie, for Commonwealth, appellee.

Before CAVANAUGH, JOHNSON and OLSZEWSKI, JJ.

CAVANAUGH, Judge:

Robert L. Johnson appeals from an aggregate judgment of sentence of 6 to 12 years imposed following his convictions for reckless endangerment, homicide by vehicle and leaving the scene of an accident involving death or serious bodily injury. The sentencing judge denied appellant's motion to modify the sentence. After careful review of the record, we affirm in part and vacate in part and remand for resentencing.

On March 5, 1994 at 2:00 a.m. Leah Morris drove appellant and Albert McDonald, a.k.a. James Cooley, to Thompson St. in Erie County to purchase marijuana. When they reached Thompson Street, a crowd was gathered on the street. An individual kicked their car, inciting Johnson and Cooley to jump out of the car and fight with members of the crowd.

Following the altercation, Johnson jumped into the driver's seat of the car, and Morris moved into the passenger seat. They picked up Cooley and accelerated down Thompson Street. After driving a short distance, Johnson turned the car around and accelerated back up Thompson Street toward the crowd. As they approached the crowd, somebody threw a snowball at the car. There is conflicting testimony as to whether anyone threw other objects or menaced the car; in fact, Johnson testified that he believed somebody pointed a gun at the car.

Johnson swerved the car over the curb, onto the sidewalk, and into the crowd. The car struck Dara Curlett and Lamont Stovall, who were standing on the sidewalk. Johnson drove off and left the scene. Dara Curlett died as a result of this accident, and Lamont Stovall was seriously injured.

After a jury trial, appellant was convicted and sentenced on the following counts; all terms to be served consecutively:

1. On count two, recklessly endangering Lamont Stovall, one to two years incarceration;

2. On count four, homicide by motor vehicle, two and one-half to five years incarceration; and

3. On count six, leaving the scene of an accident involving death or personal injury, two and one-half to five years incarceration.

The sentence is outside the guidelines on counts two and six.

Appellant presents two issues for review: 1) whether the sentencing judge imposed a sentence which is manifestly excessive and clearly unreasonable and 2) whether a mistrial was required to remedy the prejudicial reference during trial to his previous jail term.

In the first issue, appellant challenges the discretionary aspects of the sentence. Preliminarily, we note that appellant has complied with the procedural requirements of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) and the Pennsylvania Rules of Appellate Procedure, 42 Pa.Cons.Stat.Ann. § 2119(f), by including a section in his brief containing a statement of reasons for review.

Additionally, we must determine whether appellant states a substantial question meriting review. See Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). In essence, appellant presents four arguments in the statement of reasons to challenge the discretionary aspects of his sentence: 1) the court failed to consider mitigating factors and the rehabilitative needs of appellant; 2) the sentence is excessive because the court imposed consecutive terms; 3) the court sentenced outside the guidelines without reflecting a consideration of the guidelines; and 4) the court failed to state adequate reasons on the record for sentencing outside the guidelines.

Appellant's first two arguments, which challenge the weight accorded sentencing factors and the excessiveness of the sentence, fail to present a substantial question. "A challenge to the weight accorded sentencing factors does not raise a substantial question absent extraordinary circumstances." Commonwealth v. Breter, 425 Pa.Super. 248, 251, 624 A.2d 661, 662 (1993). We find no extraordinary circumstances. In addition, this Court has held that a challenge to the excessiveness of a sentence fails to state a substantial question where the sentence is within the statutory limits. Id.; Commonwealth v. Martin, 416 Pa.Super. 507, 611 A.2d 731 (1992). As this sentence is within the statutory limits, we find no substantial question.

Appellant, however, states a substantial question in the third and fourth arguments. Appellant asserts that the sentencing judge sentenced outside the guidelines without reflecting a consideration of the guidelines, and that the sentencing judge failed to state adequate reasons on the record for sentencing outside the guidelines. These issues advance a "colorable argument that the trial judge's actions were inconsistent with a specific provision of the sentencing code." Commonwealth v. Canfield, 432 Pa.Super. 496, 639 A.2d 46 (1994). Therefore we will review the merits of these arguments.

"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. Dotter, 403 Pa.Super. 507, 516, 589 A.2d 726 (1991). As the sentencing guidelines are merely advisory, "[i]f the court finds it appropriate to sentence outside the guidelines, of course it may do so as long as it places its reasons for the deviation on the record." Commonwealth v. Dutter, 420 Pa.Super. 565, 570, 617 A.2d 330, 333 (1992) (citing Commonwealth v. Cornish, 403 Pa.Super. 492, 497, 589 A.2d 718, 721 (1991)). See also Commonwealth v. Canfield, 432 Pa.Super. 496, 639 A.2d 46 (1994); Commonwealth v. Clever, 395 Pa.Super. 192, 576 A.2d 1108 (1990).

In sentencing outside the guidelines, the sentencing judge must follow the mandate of § 9721(b) of the Sentencing Code, 42 Pa.Cons.Stat.Ann. § 9701 et seq., 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 reason or reasons for the deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.

42 Pa.Cons.Stat.Ann. § 9721(b). In Commonwealth v. Canfield, 432 Pa.Super. 496, 639 A.2d 46 (1994), this Court clarified the requirements of the statute:

The statute requires a trial judge who intends to sentence a defendant outside the guidelines to demonstrate on the record, as a proper starting point, his awareness of the sentencing guidelines. Having done so, the sentencing court may deviate from the guidelines, if necessary, to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offense as it relates to the impact on the life of the victim and the community, so long as he also states of record "the factual basis and specific reasons which compelled [him] to deviate from the guideline range."

Id. (quoting Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984)). In Commonwealth v. Chesson, 353 Pa.Super. 255, 258, 509 A.2d 875, 877 (1986), this Court further explained the rationale for requiring a statement of reasons for sentencing outside the guidelines:

The court's statement of reasons for deviating from the guidelines serves not only as a record of the court's rationale for the deviation but also as evidence that the court considered the guidelines. We cannot analyze whether there are adequate reasons for the deviation unless it is first apparent that the court was aware of, and considered the guidelines.

Id.

We first consider whether the sentencing judge set forth an adequate contemporaneous statement of reasons for deviating from the guidelines. 42 Pa.Cons.Stat.Ann. § 9721(b). The sentencing judge initially stated that the sentences were all within the standard ranges, although he sentenced outside the guidelines on two counts. He corrected this statement by noting that he intended to sentence outside the guidelines on count six, leaving the scene of the accident; yet failed to correct this statement as to count two, reckless endangerment of Lamont Stovall. ¹

As to count two, the sentencing judge did not start at the proper point by demonstrating an awareness of the guidelines. While he deviated from the guidelines, the record reflects that he intended to sentence within the standard range. With this mistake on the record, we have no indication that the sentencing judge was aware of the range of the available sentences within the guidelines when he sentenced appellant. We cannot analyze whether the reasons for deviating from the guidelines are adequate where the...