Com. v. Sanchez

• Citation: 372 Pa.Super. 369,539 A.2d 840
• Parties: COMMONWEALTH of Pennsylvania v. Evaristo SANCHEZ, Appellant.
• Decision Date: 16 March 1988
• Court: Pennsylvania Superior Court

Page 840

539 A.2d 840

372 Pa.Super. 369

COMMONWEALTH of Pennsylvania v. Evaristo SANCHEZ, Appellant.

Superior Court of Pennsylvania.

Argued March 9, 1987.

Filed March 16, 1988.

Edward R. Eidelman, Public Defender, Allentown, for appellant.

Michael E. Moyer, Asst. Dist. Atty., Allentown, for Com., appellee.

Before CIRILLO, President Judge, and BROSKY, WIEAND, OLSZEWSKI, DEL SOLE, MONTEMURO, TAMILIA, POPOVICH and JOHNSON, JJ.

POPOVICH, Judge:

This is an appeal from the judgment of sentence which was imposed upon appellant, Evaristo Sanchez, after he entered a plea of guilty to various drug charges. We granted en banc review and must remand the matter for resentencing.

The records sets forth the following scenario:

On July 11, 1985, appellant entered a plea of guilty to possession with intent to deliver heroin, ¹ possession of heroin, ² possession with intent to deliver cocaine, ³ and possession of cocaine, ⁴ counts one (1) to four (4) respectively.

On September 9, 1985, appellant received consecutive terms of imprisonment of not less than seven and one-half (7 1/2) nor more than fifteen (15) years on count one (1) and not less than two and one-half (2 1/2) nor more than ten (10) years on count three (3). The trial court merged counts two (2) and four (4) with counts one (1) and three (3). A motion for reconsideration of sentence was filed in a timely manner on September 16, 1985, and was subsequently denied. This appeal followed.

Appellant raises two issues in this appeal: (1) whether the trial court erred in failing to state appropriate reasons on the record for exceeding the Sentencing Guidelines, 204 Pa.Code § 303.1 et seq., and failed to state appropriate and sufficient reasons for the extremely harsh sentence and (2) whether the sentence of ten (10) to twenty-five (25) years in prison was manifestly excessive.

According to the prosecution, a waiver has occurred because "no motion to modify was ever filed." Brief for Appellee at 6. However our review of the record indicates that a motion for reconsideration was filed on September 16, 1985 and was denied on September 18, 1985. Because the issues which appellant raises were set forth in the reconsideration motion, these issues have not been waived. Commonwealth v. Tomasso, 506 Pa. 344, 485 A.2d 395 (1984).

Additionally, we note that the sentence which was imposed was authorized by the legislature. The maximum limits which could have been imposed under counts one (1) and three (3) were fifteen (15) and ten (10) years in prison, respectively. See 35 P.S. § 780-113(f)(1) and (1.1). Hence, appellant's sentence of not less than seven and one-half (7 1/2) nor more than fifteen (15) years in prison on count (1) and not less than two and one-half (2 1/2) nor more than ten (10) years in prison on count three (3) was within the statutory limits.

Because the instant appeal raises issues concerning the discretionary aspects of sentence, we must examine our Court's recent decision in Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987). In Krum, we applied our Supreme Court's recent decision in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) and said the following:

In Tuladziecki, the defendant preserved his challenge to the Commonwealth's procedural violation of Rule 2119(f) by raising the issue (1) in the Superior Court, and (2) in the Supreme Court. In the instant case, the Commonwealth has not objected to or otherwise preserved the defendant's failure to include in his brief a separate showing, as required by Pa.R.App.P. 2119(f), a "substantial question that the sentence imposed [was] not appropriate." Because the requirement of Rule 2119(f), is procedural and not jurisdictional, the Commonwealth's failure to object to or otherwise assert the defect in the form of appellant's brief has resulted in a waiver of the defect. Therefore, the Superior Court will determine, in its own discretion, whether there is a substantial issue requiring it to review the discretionary aspects of the sentence imposed by the trial court. Id. [ (at 511, 522 A.2d at 18) ] (footnote omitted). ⁵

Because the prosecution has failed to mention appellant's noncompliance with Rule 2119(f), we may conclude that "the Commonwealth's failure to object to or otherwise assert the defect in the form of appellant's brief has resulted in a waiver of the defect." Id. In this case, appellant contends that the sentence which was imposed was almost twice as long as the sentence which was recommended by the guidelines. Under these circumstances, we find that there is a substantial question that the sentence which was imposed was not appropriate, and we may therefore examine the merits of appellant's claim that the trial court erred in failing to state appropriate or sufficient reasons for deviating from the guidelines. ⁶ See, e.g., Commonwealth v. Tuladziecki, supra; Commonwealth v. Darden, 366 Pa.Super. 597, 531 A.2d 1144 (1987).

We granted en banc review to determine whether the trial court failed to comply with this Court's previous decision in Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984). In Royer, we held that the trial court must provide a contemporaneous written statement of the permissible range of sentences where a sentence is imposed which deviates from the statutory guidelines. ⁷ In this case, it is undisputed that the sentence deviated from the guidelines. We have examined the record in this case and conclude that "nowhere did the court allude to the guidelines, nor did it indicate that it was aware of the guidelines' suggested ranges." Commonwealth v. Chesson, 353 Pa.Super. 255, 509 A.2d 875, 876.

The written record which was compiled at the sentencing hearing consisted of the following:

"THE COURT: Well, let's take a look at that for a moment. In 1980, some gambling charge, guilty to disorderly conduct, pay fines and costs. A Judge gave you a chance to do something. Right, Mr. Sanchez? A Judge gave you a chance in 1980.

"Possession of marijuana, November, 1980, pay fine and costs. Again, a Judge gave you a chance then, right?

"I assume Mr. Lauer, Defense Counsel, has that. Do you have that report in front of you?

"MR. LAUER [Defense Counsel]: I have the pre-sentence report.

"THE COURT: Judge gave you chance then.

"April 1982, possession of marijuana, pay fine and costs. Judge gave you a chance then.

"May 21, 1982, public drunkenness. A Judge gave you a chance, $25 fine.

"In December of 1982, robbery charges dismissed. I don't know anything about that.

"September 1983, possession of alcoholic beverages in a public place. Pay fine and costs.

"April 19, 1984, a year ago, a little bit over a year ago now, drugs. Cocaine. Possession with intent to deliver. Some sort of a plea bargain presumably. A Judge gave you a chance, 6 to 23 months in the Lehigh County Prison for which you are on parole, I believe, at this time.

"June 1984, delivery of a controlled substance, heroin, possession with intent to deliver, 4 to 23 months. Somebody gave you a chance then.

"Other charges pending. I don't know what they are.

"You have been given chances. Your chances have run out, Mr. Sanchez. Prior record, there is something like ten arrests, seven convictions, also in 1980 including four previous drug offenses and another one yet pending. These involve heroin and cocaine which are among the worst of our society. Certainly we don't need them in this community.

"Your guilty plea is a recognition by you, sir, that you had complicity in very serious drug charges in dealing with rather large quantities of cocaine and heroin with some substantial street value.

"You had a spotty employment record. In our view, Mr. Sanchez, you clearly represent a danger to this community and to society. There is no indication that you appreciate the seriousness of the anti-social aspect of the distribution of elicit drugs which are against the law. Heroin, cocaine, whole list against the law. You have been in it and in it and in it apparently for years.

"We believe that the public should know that people who are so involved should be dealt with firmly so that notice will go out to those who are engaged and contemplating such offense that the penalty will be serious.

"We don't regard that you've learned anything from all your prior involvement with the law and all your other sentences that you have had because you're back here bigger than ever, more deeply involved than ever.

"In our view, any lesser sentence would depreciate the seriousness of what you have done. And in our view you represent as much a danger to the citizens of this community, Mr. Sanchez, with drug involvement as if you had a gun and you held up everybody. Just as serious.

"Now, not only did you engage in serious elicit drug dealings, but you did so making all sorts of money presumably while you were milking the Commonwealth and who else of welfare money, and that's indicated by reason of the cash in something close to $1500 in cash which was found in your apartment during the raid.

"So for all of these reasons, Mr. Sanchez, while, believe me, we gain no pleasure in doing it, we believe that in the interests of the community and society that you receive lengthy periods of incarceration in a state correctional institution.

"You may take these sentences:

"NOW, SEPTEMBER 9, 1985, the sentence of the Court is that you, Evaristo Sanchez, in No. 1863 of 1984, Count 1, that you pay the costs of prosecution and that you undergo total confinement, that is imprisonment, forthwith for a period of no less than seven and a half years nor more than fifteen years in such State Correctional Institution as shall be designated by the Deputy Commissioner for Treatment, Bureau of Corrections, and that you be sent to the Correctional Diagnostic Classification Center at Graterford, Pennsylvania, for that purpose; that credit be given you, as required by law, for all time spent in custody, as a result of the...