Com. v. Rodda

• Decision Date: 07 January 1999
• Citation: 1999 Pa. Super 2,723 A.2d 212
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Jon RODDA, Appellant.
• Court: Pennsylvania Superior Court

723 A.2d 212

1999 Pa. Super 2

COMMONWEALTH of Pennsylvania, Appellee, v. Jon RODDA, Appellant.

Superior Court of Pennsylvania.

Argued September 9, 1998.

Filed January 7, 1999.

Mary E. Schaffer, Ebensburg, for appellant.

Christian A. Fisanick, Assistant District Attorney, Barnesboro, for Commonwealth, appellee.

Before CAVANAUGH, DEL SOLE, JOHNSON, HUDOCK, EAKIN, STEVENS, MUSMANNO, ORIE MELVIN and LALLY-GREEN, JJ.

JOHNSON, J.:

¶ 1 In this appeal, we revisit the issue of the degree of specificity required in the trial court's contemporaneous statement at sentencing to explain the court's reasons for deviating from the sentencing guidelines, 204 Pa.Code § 303.1-303.18 at 303.1(d). In Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453, 458 (Pa.Super.1984), a panel of this Court held that "[w]here the trial judge deviates from the sentencing guidelines ... he must set forth on the record, at sentencing, in the defendant's presence, the permissible range of sentences under the guidelines." We now conclude that where the court imposes sentence "outside the sentencing guidelines," the court need not recite the numeric range of sentences within the guidelines so long as the record demonstrates the court's recognition of the applicable sentencing range and the deviation of the sentence from that range. Because the record in this case fails to establish that the court was cognizant of the applicable sentencing range, we find that its statement of reasons for sentencing outside the guidelines is insufficient. Accordingly, we vacate the judgment of sentence and remand for resentencing.

¶ 2 This case arises out of allegations that Jon Rodda engaged in multiple acts of sexual misconduct with two juveniles, ages thirteen and fourteen, over a three-year period spanning 1989 through 1991. The Commonwealth charged Rodda with twelve counts of Indecent Assault, seven counts of Corruption of Minors, two counts of Indecent Exposure, seven counts of Endangering the Welfare of Children, five counts of Involuntary Deviate Sexual Intercourse (IDSI), and one count of Criminal Attempt to Commit Statutory Rape under 18 Pa.C.S. §§ 3126(a)(1), 6301(a), 3127, 4304, 3123(a)(7), and 901, respectively. Ultimately, the Commonwealth dropped the IDSI and Criminal Attempt charges and Rodda pled nolo contendere to the remaining charges. The trial court accepted Rodda's plea and imposed sentence of twelve to sixty months' incarceration on each of two counts of Corruption of Minors, each sentence to be served consecutively. The trial court recognized that both sentences exceeded the standard range of the sentencing guidelines. Trial Court Opinion, 2/4/97, at 3. On the remaining counts, the court imposed sentence to run concurrently and assessed fines and costs. The court denied Rodda's motion for modification of sentence and Rodda filed this appeal.

¶ 3 Initially, Rodda raised a single issue for review, asserting that the trial court "imposed a manifestly unreasonable and excessive sentence, above the aggravated range of the guidelines ... without expressing adequate reasons to justify imposition of such a severe sentence." Brief for Appellant, STATEMENT OF QUESTION INVOLVED, at 4. In support of his assertion, Rodda argued that the court "did not state the permissible range of sentencing under the guidelines prior to imposing sentence," in violation of this Court's pronouncement in Royer. Id. at 13. The Commonwealth countered that the trial court had "displayed a proper awareness of the sentencing guidelines," and so, had acted in accordance with this Court's decisions in Commonwealth v. Johnson, 446 Pa.Super. 192, 666 A.2d 690 (Pa.Super.1995), and Commonwealth v. Canfield, 432 Pa.Super. 496, 639 A.2d 46 (Pa.Super.1994). Brief for Appellee at 4. In a memorandum decision, a panel of this Court concluded that the trial court did not display an awareness of "the proper starting point under the sentencing guidelines before it decided to sentence outside them," and voted to reverse the judgment of sentence and remand for resentencing. Commonwealth v. Rodda, No. 42 Pittsburgh 1997, unpublished memorandum at 4 (Pa.Super. filed May 19, 1998). We granted the Commonwealth's request for reargument to evaluate Royer and its progeny, and to resolve any conflict Royer may pose with our decisions in Canfield and Johnson.

¶ 4 Appellate review of sentencing issues is prescribed by 42 Pa.C.S. § 9781, and is discretionary as to all aspects of sentencing except legality of the sentence. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). We will grant allowance of appeal only where the appellant avers that there is a substantial question whether the sentence imposed is appropriate under the Sentencing Code, 42 Pa.C.S. §§ 9701-9799.6. Canfield, 639 A.2d at 48 (quoting Commonwealth v. Jones, 418 Pa.Super. 93, 613 A.2d 587, 590 (Pa.Super.1992) (en banc)). We will be inclined to recognize a substantial question "where an appellant advances a colorable argument that the trial court's actions are inconsistent with a specific provision of the Sentencing Code or contrary to the fundamental norms which underlie the sentencing process." Id. Where the appellant asserts that the trial court failed to state sufficiently its reasons for imposing sentence outside the sentencing guidelines, we will conclude that the appellant has stated a substantial question for our review. Commonwealth v. Wagner, 702 A.2d 1084, 1086 (Pa.Super.1997). Accordingly, we find that Rodda has stated a substantial question pursuant to 42 Pa.C.S. § 9781(b).

¶ 5 "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." Johnson, 666 A.2d at 693. In this context, an abuse of discretion is not shown merely by an error in judgment. Canfield, 639 A.2d at 50 (citing Commonwealth v. Kocher, 529 Pa. 303, 305, 602 A.2d 1308, 1310 (1992)). Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Id.

¶ 6 Our review of Rodda's assertions of error must first emphasize the mandates of the Sentencing Code. The Code requires, in pertinent part, that in imposing sentence, the court:

shall ... consider any guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing and taking effect pursuant to section 2155 (relating to publication of guidelines for sentencing).... In every case where the court imposes a sentence outside the sentencing guidelines... 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.C.S. § 9721(b). We have interpreted these provisions to require, at minimum, that when a court deviates from the sentencing guidelines, it must indicate that it understands the suggested sentencing range. Commonwealth v. Chesson, 353 Pa.Super. 255, 509 A.2d 875, 876 (Pa.Super.1986).

¶ 7 Following careful scrutiny of the record, we are unable to conclude, based on the sentencing court's contemporaneous statement, that the court displayed the requisite understanding of the guidelines range. We stress, however, that neither the Code nor our decisions substantiate Rodda's suggestion that the sentencing court must recite the guidelines range on every occasion where the sentence imposed exceeds that range. Though our decisions have restated the language in Royer ostensibly requiring such recitation, we have vacated sentence in the absence of a guidelines recitation only upon a proper showing that the court was guided in its sentencing decision by a material misapprehension of the applicable range under the guidelines, see, e.g., Commonwealth v. Wagner, 702 A.2d 1084 (Pa.Super.1997); Commonwealth v. Byrd, 441 Pa.Super. 351, 657 A.2d 961 (Pa.Super.1995); Commonwealth v. Breter, 425 Pa.Super. 248, 624 A.2d 661 (Pa.Super.1993); Commonwealth v. Moyer, 421 Pa.Super. 102, 617 A.2d 744 (Pa.Super. 1992); Commonwealth v. Rich, 392 Pa.Super. 380, 572 A.2d 1283 (Pa.Super.1990); Commonwealth v. Charles Jefferson Smith, 340 Pa.Super. 72, 489 A.2d 845 (Pa.Super.1985), or upon evidence that the court ignored the guidelines, in contravention of the Sentencing Code, see, e.g., Commonwealth v. Gause, 442 Pa.Super. 329, 659 A.2d 1014 (Pa.Super.1995)

; Commonwealth v. Kephart, 406 Pa.Super. 321, 594 A.2d 358 (Pa.Super.1991); Commonwealth v. Sanchez, 372 Pa.Super. 369, 539 A.2d 840 (Pa.Super.1988) (en banc); Commonwealth v. Vinson, 361 Pa.Super. 526, 522 A.2d 1155 (Pa.Super.1987); Chesson, 509 A.2d 875. Moreover, we have affirmed sentence where the record demonstrated that the sentencing court considered the guidelines and was aware that the sentence it imposed exceeded the guidelines range, though it did not, in fact, recite the range. See, e.g., Commonwealth v. Hutchins, 453 Pa.Super. 209, 683 A.2d 674 (Pa.Super.1996); Johnson, 666 A.2d 690,

Canfield, 639 A.2d 46.

¶ 8 Accordingly, we take this opportunity to dispel the misconception, typified by Rodda's appeal, that a sentencing court must evoke "magic words" in a verbatim recitation of the guidelines range to satisfy the mandate of the Sentencing Code. Canfield, 639 A.2d at 51.

¶ 9 In Royer, we considered, inter alia, whether the trial court had accorded adequate consideration, as required by section 9721, to the recently promulgated sentencing guidelines. Royer, 476 A.2d at 456 (noting that the guidelines were adopted by the legislature on May 14, 1982, to become effective on July 22, 1982). Recognizing the complexity of the guidelines, we noted our concern that the record failed to establish that the trial judge was even aware of the applicable sentencing range. Id. at 458. Indeed, the tenor...