Com. v. Jones
| Decision Date | 15 April 1994 |
| Citation | 640 A.2d 914,433 Pa.Super. 266 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Douglas JONES, Appellee. |
| Court | Pennsylvania Superior Court |
Peter J. Gardner, Asst. Dist. Atty., Philadelphia, for Com., appellant.
Isla A. Fruchter, Philadelphia, for appellee.
Before ROWLEY, President Judge, McEWEN and KELLY, JJ.
The Commonwealth of Pennsylvania asks this Court to vacate appellee's judgment of sentence and remand for resentencing by a different judge. On March 4, 1993, following remand from the Superior Court for resentencing, the Honorable Lisa A. Richette resentenced appellee, Douglas Jones, to the same term of eighteen to sixty months incarceration for voluntary manslaughter, 1 with a concurrent term of six to twelve months for possession of an instrument of crime. 2 We affirm judgment of sentence.
We set forth the relevant facts and procedural history accordingly. This case involves a fratricide. In March, 1991, appellee stabbed his half-brother, Edward Shelton, with a kitchen knife, at home, during the course of a heated argument. A jury acquitted appellee of murder but found him guilty of voluntary manslaughter and possession of an instrument of crime.
On February 4, 1992, Judge Richette, who had presided at appellee's trial, conducted a sentencing hearing. The court listened to the special circumstances of the case, including the aggressive nature and provocative behavior of the victim, the undeniably profound remorse of appellee, the pleas for mercy from the mother of both appellee and victim, as well as all factors attendant to the sentencing process, such as the presentence report and the prosecution's request for the deadly weapon enhancement. At the close of this first sentencing hearing, the court sentenced appellee to a term of incarceration of eighteen to sixty months, with a concurrent sentence of six to twelve months for possession of an instrument of crime.
The Commonwealth appealed the judgment of sentence, arguing that the trial court erred by failing to apply the deadly weapon enhancement to the sentencing guidelines for voluntary manslaughter, and failing to go on record stating why the court was departing from the guidelines. This Court agreed, vacated the judgment of sentence, and remanded for resentencing, stating that the enhanced mitigated range of thirty to forty-eight months applied in this case; therefore, the trial court was required to set forth its reasons on record for deviating from the guidelines. See Commonwealth v. Jones, 427 Pa.Super. 643, 625 A.2d 90 (1992).
On remand, the trial court reimposed the same sentence. This time the trial court acknowledged the existence of the deadly weapon enhancement, the resulting increased sentencing ranges and gave its reasons for reimposing the same sentence of eighteen to sixty months for the voluntary manslaughter conviction. During this second sentencing hearing, the prosecution again insisted on the mandatory nature of the deadly weapon enhancement. The trial court maintained that the actual sentence was still within its discretion, despite the enhancement. The prosecution announced its intention to appeal the second judgment of sentence. Hence, this timely appeal followed.
The Commonwealth raises these challenges to appellee's judgment of sentence on remand:
1. DID THE SENTENCING COURT ERR IN REFUSING TO APPLY THE DEADLY WEAPON ENHANCEMENT PROVISION OF THE SENTENCING GUIDELINES TO DEFENDANT'S VOLUNTARY MANSLAUGHTER CONVICTION WHERE DEFENDANT KILLED HIS BROTHER BY STABBING HIM IN THE CHEST?
2. DID THE SENTENCING COURT ERR IN FAILING TO ARTICULATE REASONS FOR ITS DEVIATION FROM THE GUIDELINES?
3. CAN A SENTENCING COURT INSULATE A PATENTLY ERRONEOUS REFUSAL TO APPLY THE DEADLY WEAPON ENHANCEMENT FROM APPELLATE REVIEW BY CLAIMING IN ITS OPINION THAT, AT THE SAME TIME IT WAS INSISTING IN OPEN COURT THAT IT REJECTED THE ENHANCEMENT, IT WAS SECRETLY APPLYING THE ENHANCEMENT ON A GUIDELINE SENTENCE FORM?
4. SHOULD A CASE BE REMANDED TO A DIFFERENT JUDGE FOR RESENTENCING WHEN THE LOWER COURT HAS MADE CLEAR THAT, BECAUSE OF ITS PERSONAL DISAGREEMENT WITH THE DEADLY WEAPON ENHANCEMENT, IT WILL REFUSE TO IMPARTIALLY APPLY THE ENHANCEMENT?
The sentencing function is a matter vested in the trial court's sound discretion which remains undisturbed on appeal in the absence of an abuse of that discretion. Commonwealth v. Jones, 418 Pa.Super. 93, 613 A.2d 587 (1992) (en banc ), appeal denied, 535 Pa. 576, 629 A.2d 1377 (1993). On review, we accord the sentencing court great weight "as it is in the best position to view the defendant's character, displays of remorse, defiance or indifference and the overall effect and nature of the crime." Id., 418 Pa.Super. at 101, 613 A.2d at 591. Where the statute under which a conviction lies carries no specified penalty, 3 the Court must consider and select one or more of the sentencing alternatives available: probation, determination of guilty without penalty, partial or total confinement and/or fines. 42 Pa.C.S.A. § 9721(a), (a.1); Commonwealth v. Bedleyoung, 319 Pa.Super. 323, 331, 466 A.2d 180, 184 (1983).
The general principle underlying the imposition of a sentence calls for the balancing of public protection, the gravity of the offense and, particularly, the rehabilitative needs of the defendant. 42 Pa.C.S.A. § 9721(b); Commonwealth v. Ennis, 394 Pa.Super. 1, 574 A.2d 1116 (1990); Commonwealth v. Bedleyoung, supra. The only constraints placed on the court's discretion in sentencing matters are that the sentence imposed must be within the statutory limits; the record must show that the court considered the sentencing guidelines in light of the above balancing standard; and, if the court deviates from the sentencing guidelines, the record must demonstrate a contemporaneous statement of reasons for the departure. Commonwealth v. Minott, 395 Pa.Super. 552, 577 A.2d 928 (1990); Commonwealth v. Stalnaker, 376 Pa.Super. 181, 545 A.2d 886 (1988). The requirement of a contemporaneous statement explaining any deviation from the sentencing guidelines is satisfied when the sentencing judge states the reasons on the record in the defendant's presence. Commonwealth v. Munson, 419 Pa.Super. 238, 615 A.2d 343 (1992); Commonwealth v. Clever, 395 Pa.Super. 192, 576 A.2d 1108 (1990). Although the sentencing guidelines do specify definite ranges of sentences, the adoption of the guidelines was not intended by the legislature to trump judicial discretion in the sentencing process. Commonwealth v. Murphy, supra; Commonwealth v. Minott, supra.
The Commonwealth complains that the trial court steadfastly refused to apply the deadly weapon enhancement of the sentencing guidelines to appellee's voluntary manslaughter conviction. 4 On remand from this Court, asserts the Commonwealth, the trial judge was instructed to apply the deadly weapon enhancement to the appropriate range of the sentencing guidelines. To the extent that the application of the enhanced range is mandatory, the Commonwealth is correct. The trial court, however, maintains that the imposition of a sentence within the enhanced range is not mandatory because the guidelines are not mandatory. The trial court proposes that it retains the discretion to sentence outside the enhanced range where the circumstances compel a different sentence; and the sentence which is imposed is subject to review only as to whether that sentence is reasonable. We agree.
As an agency of the General Assembly (42 Pa.C.S.A. § 2151), the Pennsylvania Commission on Sentencing promulgated the sentencing guidelines embodied in 204 Pa.Code § 303.1 et seq. 5 As part of these guidelines, § 303.4 provides:
Deadly weapon enhancement
(a) When the court determines that the defendant possessed a deadly weapon, as defined in 18 Pa.C.S. § 2301 (relating to definitions), during the commission of the current conviction offense; at least 12 months and up to 24 months confinement shall be added to the guideline sentence range which would otherwise have been applicable.
(b) There shall be no such enhancement for the following offenses: 18 Pa.C.S. § 2702(a)(4) (); the Pennsylvania Uniform Firearms Act, 18 Pa.C.S. §§ 6101-6120; 18 Pa.C.S. § 907 (); 18 Pa.C.S. § 908 (); for any other offense for which possession of a deadly weapon is an element of the statutory definition; or for any offense which is lesser included to an offense for which possession of a deadly weapon is an element of the statutory definition.
(c) Where there are sentences for crimes arising from the same transaction, the deadly weapon enhancement shall be applied only to the conviction offense which has the highest offense gravity score.
204 Pa.Code § 303.4.
For purposes of this section, "deadly weapon" is defined in 18 Pa.C.S. § 2301 as: "Any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury."
204 Pa.Code § 303.4(a) Description. For the purposes of the crimes code, a deadly weapon need not be an inherently lethal device; whether a device is deadly can be governed by how the device was used. Commonwealth v. McCullum, 529 Pa. 117, 602 A.2d 313 (1992).
Under the sentencing guidelines, a conviction for voluntary manslaughter carries an offense gravity score of "8," see 204 Pa.Code § 303.8. In conjunction with a prior record score of "0," the guidelines suggest the following sentencing ranges:
Standard Range: 24"48 months
Aggravated Range: 48"60 months
Mitigated Range: 18"24 months
204 Pa.Code § 303.9. Pursuant to the deadly weapon enhancement provision, id. § 303.4, ...
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