Com. v. Stewart
Citation | 867 A.2d 589 |
Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Charles Franklin STEWART, Appellant. |
Decision Date | 21 January 2005 |
Court | Pennsylvania Superior Court |
Gregory S. Fox, Ellwood City, for appellant.
Matthew T. Mangino, Asst. Dist. Atty., New Castle, for Com., appellee.
¶ 1 Appellant, Charles Franklin Stewart, appeals from the judgment of sentence1 entered on March 1, 1999. After careful review, we vacate the judgment of sentence, remand for a new sentencing hearing, and relinquish jurisdiction.
¶ 2 The trial court gave the following account of the factual and procedural history of this case:
Trial Court Opinion, 6/24/03, at 1-3. On reconsideration, the trial court denied Appellant's motion to modify sentence, and entered an order on June 24, 2003 denying relief. This appeal followed.3
¶ 3 Appellant raises one issue:
Can a defendant be sentenced within the aggravated range of the guidelines on the basis of charges that were dismissed?
¶ 4 Appellant argues that the sentencing court erred when it considered as an aggravating factor two counts of attempted aggravated assault and one count of statutory sexual assault that had been nolle prossed pursuant to the guilty plea agreement. N.T., 3/1/99, at 67-68. Appellant contends, in what he states may be a case of first impression for this Court, that it is unfair for a defendant to enter a guilty plea to certain charges, but then to be sentenced on the basis of other charges that were dismissed pursuant to the plea agreement. Appellant argues that he should have been sentenced within the standard range of the sentencing guidelines.
¶ 5 A plea of guilty forecloses challenges to all matters except the voluntariness of the plea, the jurisdiction of the court, or the legality of the sentence. Commonwealth v. Alexander, 811 A.2d 1064, 1065 (Pa.Super.2002), appeal denied, 573 Pa. 676, 822 A.2d 703 (2003). Nevertheless, this Court has also ruled that an appellant may challenge the discretionary aspects of sentence in these circumstances, so long as there is no plea agreement as to the terms of the sentence. Commonwealth v. Dalberto, 436 Pa.Super. 391, 648 A.2d 16, 21 (1994), appeal denied, 540 Pa. 594, 655 A.2d 983 (1995), cert. denied, 516 U.S. 818, 116 S.Ct. 75, 133 L.Ed.2d 34 (1995); Commonwealth v. Becker, 383 Pa.Super. 553, 557 A.2d 390, 392 n. 1 (1989).
¶ 6 In Appellant's case, there was no binding plea agreement as to Appellant's sentence. Rather, the Commonwealth agreed to recommend a particular sentence that was not binding on the court. Thus, Appellant was not foreclosed from challenging the discretionary aspects of his sentence. Dalberto.
¶ 7 A challenge to the discretionary aspects of sentence ordinarily requires an appellant's brief to comply with the mandates of Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). The appellant must present a separate, concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence. Id.
Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa.Super.2004) (citation omitted). In Appellant's case, Appellant omitted the Rule 2119(f) statement, but the Commonwealth did not object. Indeed, the Commonwealth did not file a brief. Therefore, we may reach our own conclusion as to whether Appellant should be permitted to proceed with this appeal.
¶ 9 This Court will reach the merits of an appeal challenging the discretionary aspects of sentencing only if it appears that there is a substantial question that the sentence is inappropriate under the Sentencing Code. Commonwealth v. Urrutia, 439 Pa.Super. 227, 653 A.2d 706, 710 (1995), appeal denied, 541 Pa. 625, 661 A.2d 873 (1995). We will find a substantial question when an appellant advances a colorable argument that the sentence is either inconsistent with a specific provision of the Sentencing Code, or is contrary to the fundamental norms that underlie the sentencing process. Commonwealth v. Titus, 816 A.2d 251, 255 (Pa.Super.2003).
¶ 10 Based on Appellant's assertion that the sentencing court considered improper factors in placing the sentence in the aggravated range, we conclude that Appellant presents a substantial question on appeal. See, e.g., Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617, 624 (2002) (plurality) ( ); Commonwealth v. Walls, 846 A.2d 152, 156 (Pa.Super.2004). Thus, we will review the sentence in question.
¶ 11 We review discretionary aspects of sentencing for a manifest abuse of discretion. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.Super.2001); 42 Pa.C.S.A. § 9721. It is not the function of an appellate court to determine whether it would have imposed the same sentence as the trial court. Rather, this Court may only determine whether the sentence is appropriate under the guidelines and in keeping with the protection of the public, the gravity of the offense, and the rehabilitative needs of the appellant. Commonwealth v. McClendon, 403 Pa.Super. 467, 589 A.2d 706, 713 (1991), appeal denied, 528 Pa. 622, 597 A.2d 1151 (1991); 42 Pa.C.S.A. § 9721(b).
¶ 12 Appellant argues that his sentence is unreasonable and violates due process, as the sentence was based on charges that were dismissed as part of the plea agreement. A sentencing court may consider any legal factor in determining that a sentence in the aggravated range should be imposed. Commonwealth v. Duffy, 341 Pa.Super. 217, 491 A.2d 230, 233 (1985). In addition, the sentencing judge's statement of reasons on the record must reflect this consideration, and the sentencing judge's decision...
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