Com. v. Smith

• Decision Date: 05 July 1988
• Citation: 375 Pa.Super. 419,544 A.2d 991
• Parties: COMMONWEALTH of Pennsylvania v. Glenn SMITH, Appellant.
• Court: Pennsylvania Superior Court

Page 991

544 A.2d 991

375 Pa.Super. 419

COMMONWEALTH of Pennsylvania v. Glenn SMITH, Appellant.

Superior Court of Pennsylvania.

Argued Feb. 17, 1988.

Filed July 5, 1988.

Leonard Sosnov, Asst. Public Defender, Philadelphia, for appellant.

Hugh J. Burns, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before BROSKY, WIEAND, MCEWEN, OLSZEWSKI, BECK, TAMILIA, KELLY, POPOVICH and JOHNSON, JJ.

BECK, Judge:

This is an appeal by Glenn Smith from a judgment of sentence imposed on February 3, 1987 by the Court of Common Pleas of Philadelphia County. This case involves an alleged conflict between the sentencing provisions of the Youth Offenders Act (which was repealed by the Pennsylvania legislature effective February 9, 1987) ¹ and the 1982 Sentencing Guidelines (which were invalidated by the Pennsylvania Supreme Court in a decision filed on October 7, 1987). ² We find that the trial judge did not err when he first calculated the sentence that appellant would receive under the 1982 Sentencing Guidelines and then departed from the guidelines and sentenced appellant in accordance with the Youthful Offenders Act. We therefore affirm the judgment of sentence.

On June 1, 1986, appellant Smith approached a woman who was walking on Wyoming Avenue in Philadelphia and forced her to hand over her money. He was apprehended by the police, and on October 3, 1986, he pleaded guilty to robbery as a felony of the second degree. A sentencing hearing was then scheduled for February 3, 1987 before the Honorable Bernard J. Avellino.

At the sentencing hearing, the trial judge heard argument on the correct application of the 1982 Sentencing Guidelines to appellant's case. Both defense counsel and the Commonwealth agreed that under the guidelines the offense gravity score for Smith's crime was "5". However, the parties disagreed on the value which should be assigned for Smith's prior record score. The Commonwealth maintained that Smith had a prior record score of "4" since he had been adjudicated delinquent for committing two robberies as a juvenile. Defense counsel insisted that juvenile adjudications could not be counted in determining the prior record score, and that therefore Smith had a prior record score of "0".

The trial judge accepted the Commonwealth's view that Smith should be assigned an offense gravity score of "5" and a prior record score of "4". He then addressed the defendant on the record:

[T]here are a number of factors I have to consider before I sentence anyone.

I have to consider the sentencing guidelines.

The sentencing guidelines alone for you say that the minimum range, the minimum range of confinement, that is not the aggravated nor mitigated, the minimum range I ought to put you in jail for [is] at least eighteen to twenty seven months.

N.T. at 16. ³

Upon further reflection, however, the trial judge decided that the minimum sentencing range suggested by the guidelines was not appropriate. The judge reviewed the presentencing report which stressed that Smith would benefit from "... a firm consistent program of reward and punishment in a very structured and controlled setting." N.T. at 17. In light of this recommendation, the judge concluded that the rehabilitative needs of the defendant could best be met if he were confined in the state facility for youthful offenders at Camp Hill. At the time of sentencing, the Youth Offenders Act provided that in order to be eligible to be sent to Camp Hill, a defendant must receive a prison sentence which does not specify a minimum term of confinement. ⁴ Accordingly, the trial court deviated from the guidelines and imposed a sentence to be served at Camp Hill with no minimum limit and with a maximum limit of six years imprisonment.

Appellant filed a timely motion to modify sentence in which he argued that the trial court had miscalculated his prior record score by adding points for his juvenile adjudications. This motion was denied on February 9, 1987--the same day on which the repeal of the Youth Offenders Act went into effect.

Appellant then filed a timely notice of appeal with this court. In his appellate brief, appellant again argued that the trial court had erred by taking his juvenile adjudications into account. After initial consideration by a three judge panel of the court, this case was certified for en banc review. Following reargument before the court en banc, appellant and the Commonwealth were granted leave to file supplemental briefs addressing the legality of a prison sentence without a minimum term of incarceration.

In its present posture, this case presents two questions for review. First, did the trial judge have authority to impose a prison sentence with no minimum term after initially considering the minimum sentence recommended by the guidelines? Second, did the trial judge properly consider appellant's juvenile adjudications when computing the minimum sentence recommended by the guidelines? We conclude that appellant is not entitled to a new sentencing hearing.

I.

Appellant asserts that the trial judge erred by failing to provide for a minimum sentence. His principal argument may be summarized as follows.

Appellant was sentenced under the Youth Offenders Act which prohibits the imposition of a minimum sentence. See 61 Pa.Stat.Ann. §§ 484, 485 (cited at n. 4, supra ). However, appellant's case is controlled by the 1982 Sentencing Guidelines. Appellant pleaded guilty to committing a crime on June 1, 1986; the 1982 Sentencing Guidelines took effect on July 22, 1982 and applied to all crimes committed on or after that date. 204 Pa. Code § 303.1(d). Therefore, the judge was obliged to follow the 1982 Sentencing Guidelines when determining appellant's punishment.

The guidelines established ranges of minimum sentences for criminal offenses. See 204 Pa. Code § 303.9(a) ("All guideline sentence ranges are months of minimum confinement ..."). The Youth Offenders Act, which prohibits a minimum sentence, and the 1982 Sentencing Guidelines, which authorize a minimum sentence, are in conflict. In order to resolve this conflict, the trial court should simply have followed the guidelines--the more recently adopted of the two competing sentencing schemes. ⁵ Thus, the 1982 Sentencing Guidelines displaced the Youth Offenders Act, and the special indeterminate sentence ⁶ provided by the Youth Offenders Act was not a valid sentencing alternative.

A.

We find that the argument outlined above is not meritorious. However, before reaching the merits of appellant's claim, a few words about appealability and waiver are in order.

As in all sentencing cases, we must determine at the outset whether the appellant's issue concerns a discretionary aspect of sentence or the legality of his sentence. There are two significant distinctions between appellate treatment of legality claims and discretionary claims. First, a challenge to the legality of a sentence may be appealed as of right. 42 Pa.Cons.Stat.Ann. § 9781(a) (Purdon 1982). A challenge to a discretionary aspect of a sentence is not allowed unless there is the appearance of a substantial question that the sentence imposed is not appropriate under the Sentencing Code. 42 Pa.Cons.Stat.Ann. § 9781(b); see Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Second, a challenge to the legality of a sentence can never be waived. Commonwealth v. Wallace, 368 Pa.Super. 255, 533 A.2d 1051 (1987). A challenge to a discretionary aspect of sentence may be waived if it is not properly raised in the trial court and in the appellant's brief to this court. See Tuladziecki, supra; Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc).

We find that appellant's first issue implicates the legality of his sentence. A legality issue is essentially a claim that the trial court did not have jurisdiction to impose the sentence which it handed down. Commonwealth v. Hartz, 367 Pa.Super. 267, 279, 532 A.2d 1139, 1145 (1987) (en banc) (Cirillo, P.J., concurring); Commonwealth v. Tolassi, 303 Pa.Super. 177, 449 A.2d 636 (1982); see Commonwealth v. Wallace, supra. Where a trial court does not have jurisdiction, its sentencing decision is automatically subject to appellate review because the court by imposing sentence exceeded the limits of its authority.

A trial court ordinarily has jurisdiction to impose any sentence which is within the range of punishments which the legislature has authorized for the defendant's crime. Appellant concedes that the General Assembly authorized indeterminate sentences for individuals in the appellant's position when it approved the Youth Offenders Act. However, appellant maintains that the General Assembly later revoked this authorization and implicitly prohibited indeterminate sentences by passing legislation which created a sentencing commission and charged that commission with the task of developing sentencing guidelines. See 42 Pa.Cons.Stat.Ann. §§ 2151-2155 (Purdon 1981 & Supp. 1987). Assuming that appellant were correct, and the later action by the legislature authorizing the guidelines implicitly repealed the indeterminate sentencing provision of the Youth Offenders Act, then the trial judge would not have had the power to impose an indeterminate sentence under the Youth Offenders Act. Appellant's argument calls into question the jurisdiction of the trial court.

At the heart of the present case is a dispute over whether the sentence which appellant Smith received was in fact legislatively permitted. Thus, appellant's argument must be viewed as an attack on the legality of his sentence which is appealable as of right and which cannot be waived. Cf. Commonwealth v. Craig, 311 Pa.Super. 533, 534 n. 6, 457 A.2d 1310, 1311 n. 6 (1983) (claim that Sentencing Code prohibits indeterminate sentence not subject to waiver); Commonwealth v. Shoemaker, 303 Pa.Super. 242 n. 4, 449 A.2d 669 n. 4 (1982), rev'd on other grounds, 502 Pa. 573, 467 A.2d 819 (1983) (same). We...