Com. v. Ritchey

• Decision Date: 02 July 2001
• Citation: 779 A.2d 1183
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Jacob A. RITCHEY, Appellant.
• Court: Pennsylvania Superior Court

779 A.2d 1183

COMMONWEALTH of Pennsylvania, Appellee, v. Jacob A. RITCHEY, Appellant.

Superior Court of Pennsylvania.

Argued February 14, 2001.

Filed July 2, 2001.

Ralph T. Forr, Altoona, for appellant.

David C. Gorman, Asst. Dist. Atty., Hollidaysburg, for Commonwealth.

Before: JOHNSON, HUDOCK and HESTER, JJ.

HUDOCK, J.

¶ 1 This is an appeal from the judgment of sentence imposed after Appellant entered an open plea of guilty to one count of aggravated assault.¹ His conviction was the result of an incident where, in the early morning hours of July 20, 1999, he and an accomplice drove past the Dick family residence and fired at least eleven shots into the house using a semi-automatic rifle. Although Appellant believed the house to be the residence of Arthur Decker, Decker actually lived two doors down. Bullet holes were found above the baby's crib and in the headboard of the daughter's bed. Immediately following the court's acceptance of his guilty plea, Appellant waived the preparation of a presentence report and the court sentenced him to the maximum term of ten to twenty years of imprisonment. A timely filed post-sentence motion was denied without a hearing. This appeal followed in which Appellant challenges the discretionary aspects of his sentence. We vacate Appellant's sentence and remand for resentencing.

¶ 2 Initially, we note that sentencing is a matter vested in the sound discretion of the sentencing judge, whose judgment will not be disturbed absent an abuse of discretion. Commonwealth v. Johnson, 446 Pa.Super. 192, 666 A.2d 690, 693 (1995). Appellant challenges the discretionary aspects of sentencing for which there is no automatic right to appeal. Commonwealth v. Koren, 435 Pa.Super. 499, 646 A.2d 1205, 1207 (1994). This appeal is, therefore, more appropriately considered a petition for allowance of appeal. 42 Pa.C.S.A. § 9781(b). Two requirements must be met before a challenge to the judgment of sentence will be heard on the merits. Koren, 646 A.2d at 1207. First, the appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of his sentence. Id.; Pa.R.A.P. 2119(f). Second, he must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. 42 Pa.C.S.A. § 9781(b); Commonwealth v. Urrutia, 439 Pa.Super. 227, 653 A.2d 706, 710 (1995).

¶ 3 The determination of whether a particular issue raises a substantial question is to be evaluated on a case-by-case basis. Commonwealth v. Maneval, 455 Pa.Super. 483, 688 A.2d 1198, 1199-1200 (1997). Generally, however, in order to establish a substantial question, the appellant must show actions by the sentencing court inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process. Id.

¶ 4 Appellant's Rule 2119(f) statement reads, in pertinent part, as follows:

It is respectfully submitted that in this case the Court, by sentencing [Appellant] to the statutory maximum of ten to twenty years for one count of aggravated assault as a felony in the first degree, imposed a sentence well outside of the aggravated range of the guidelines and did so without setting forth sufficient reasons to justify such a gross deviation. In reaching its decision, the Court unfairly focused solely on the circumstances of the crime, failing to take into account [Appellant's] cooperation with the police, his participation as an accomplice, his education, his character or any other mitigating factor that may have been pertinent in making a decision in regard to sentencing. Furthermore, the Court did not avail itself to any presentence investigation at the time of sentencing and, therefore, it cannot be assumed that the Court had the necessary information required in order to render an appropriate sentence.

This Court has found that in instances where the trial court deviates substantially from the sentencing guideline range "it is especially important that the court consider all factors relevant to the determination of a proper sentence." Commonwealth v. Ruffo [360 Pa.Super. 180], 520 A.2d 43, [47] (Pa.Super.1987).

Furthermore, failure to consider any factor other than the nature of the crime involved is an abuse of discretion. Id. at 46, 48....

In its statement of reasons for deviating from the guidelines, the Court inadequately stated that its basis for the departure was that the sentencing guidelines and the Sentencing Commission could not have envisioned this type of situation.

The Court failed to elaborate on what factors it considered in rendering its decision besides the Court's bald assertion that it considered those factors contained in the sentencing code. In essence, the Court failed to place on the record those factors concerning [Appellant's] character it considered in order to ensure that a dispassionate and balanced sentence was imposed.

Therefore it is submitted that a substantial issue is presented concerning the discretionary aspect of the sentence imposed by the Judge in this matter.

Appellant's Brief at 10-11.

¶ 5 Appellant's claims that the sentencing court provided insufficient reasons for the sentence imposed and focused solely on the seriousness of the offense raise substantial questions. See Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa.Super.1999) (en banc)

(explaining that an assertion that the sentencing court failed to sufficiently state reasons for imposing sentence outside the sentencing guidelines raises a substantial question); Commonwealth v. Mickell, 409 Pa.Super. 595, 598 A.2d 1003, 1008 (1991) (holding that the sentencing court may not base its sentence upon the seriousness of the crime alone). Thus, we shall consider the merits of these claims.

¶ 6 Appellant entered a guilty plea to one count of aggravated assault, graded as a felony of the first degree. Given an offense gravity score of ten and Appellant's prior record score of two, as well as the enhancement for use of a deadly weapon,² the sentencing guidelines recommended a standard minimum range sentence of fifty-four months to sixty-six months, plus or minus twelve months for the aggravated and mitigated minimum range sentences. Appellant's minimum sentence of ten years or 120 months, therefore, deviated from the guideline ranges. Because the sentence deviated from the guidelines, the court was required to provide a contemporaneous written statement of its reasons for doing so. Commonwealth v. Wagner, 702 A.2d 1084, 1086 (Pa.Super.1997). This requirement is satisfied when the court states its reasons for the sentence on the record and in the defendant's presence. Commonwealth v. Smith, 369 Pa.Super. 1, 534 A.2d 836, 838 (1987).

¶ 7 Directly after accepting Appellant's guilty plea, the sentencing court was informed that Appellant waived the preparation of a presentence report. The court then stated:

The court having considered the purposes of the sentencing, [sic]

Those factors that have been set forth in the Sentencing Code,

Those of rehabilitation of the individual, punishment of the individual, the interest of society balanced with the interest of the individual, or society's interest in the individual in being punished, as well as being rehabilitated[.]

The Court having reviewed the Sentencing Guidelines which calls for the Aggravated Assault as a Felony of the First Degree a mitigated range of three and a half years or a standard range of four and a half dash five years, [sic] or an aggravated range of six and a half years, the Court having considered those Sentencing Guidelines, the Court considers all those Sentencing Guidelines to be inappropriate to the offense involved. The Sentencing Guidelines and the Sentencing Commission could not have envisioned a situation where at 2:30 in the morning, or 2:50 in the morning a family, who has done nothing to expect an attack on their house with a semi-automatic high powered rifle, with a child in its crib, having a bullet pass over its head within inches, there is no way that the Sentencing Guidelines are enough. There is no way any kind of maximum sentence could restore the peace and tranquility to that family that suffered this attack because this individual had a running feud or dislike for another person. That this individual empowered either himself or another individual³ to engage in such an obnoxious aggravated assault on these individuals cannot be tolerated by society.

Having stated that as the reason for the sentencing, the Court proceeds to sentence:

Order, 3/27/00, at 2-3. The court then imposed upon Appellant a ten to twenty year sentence of incarceration.

¶ 8 After careful review, we are constrained to conclude that the sentencing court abused its discretion when imposing the above sentence on Appellant. Although the trial court began its statement of reasons with its recitation that, in the words of the Commonwealth, it had considered the "tri-fold purposes of sentencing... the rehabilitation of the [d]efendant, punishment and deterrence," Commonwealth's Brief at 2, it made no further comment regarding Appellant's personal history, rehabilitative needs or background. As this Court has stated, "the judge's statement must clearly show that he has given individualized consideration to the character of the defendant." Commonwealth v. Thomas, 370 Pa.Super. 544, 537 A.2d 9, 13 (1988). Moreover, the remainder of the court's comment focused exclusively on the seriousness of the crime. Where the sentencing court deviates substantially from the sentencing guidelines, "it is especially important that the court consider all factors relevant to the determination of a proper sentence." Commonwealth v. Ruffo, 360 Pa.Super. 180, 520 A.2d 43, 47 (1987).

¶ 9 In the above comments, the sentencing court stated that it had considered the sentencing guidelines, but that the guidelines "could not have envisioned" the factual circumstances of ...