Commonwealth v. Muller
Commonwealth v. Muller
Opinion of the Court
On February 18, 1986, appellant pled guilty to two charges of possession with intent to deliver marijuana.
Appellant raises the following question on appeal: “[wjhether the lower court abused its discretion when it failed to give adequate weight to mitigating factors at sentencing and thereby imposed an excessive sentence while also failing to state adequate reasons for the sentence on the record?” Brief for Appellant at 3. Although this statement of the question involved on appeal appears to be couched as a single question, it in fact poses two issues for our review. First, whether the court abused its discretion by failing to give adequate weight to “mitigating factors” at sentencing, and second, whether the sentencing court failed to state adequate reasons for the sentence on the record requiring us to vacate the sentence and remand.
We find that this second issue is not properly before us and is waived due to appellant’s failure to raise this issue in his motion to modify sentence. Procedural sentencing issues, such as appellant’s insufficient-reasons-on-the-record claim, are waived if not properly preserved and presented below. Commonwealth v. Whetstine, 344 Pa.Super. 246,
Appellant contends the court abused its discretion by failing to give adequate weight to mitigating factors at sentencing. Based on the recent Supreme Court of Pennsylvania case of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), and our case of Commonwealth v. Thomas, 363 Pa.Super. 348, 526 A.2d 380 (1987) (applying Tuladziecki), we must analyze whether or not appellant has properly presented this issue for appeal.
As in Tuladziecki, notice of appeal under Pa.R.A.P. 902 operates as a “petition for allowance of appeal” which is required by 42 Pa.C.S. § 9781(b). The briefing stage must then deal with the appropriateness of the appeal. (Comments to Rule 902). There, the question of appropriateness is handled in the usual manner, first by alleging any question relating to the discretionary aspect of the appeal in the “statement of question involved” required by Pa.R.A.P. 2116(a) and (b). This was done in this case by appellant stating:
A. Whether the lower court abused its discretion when it failed to give adequate weight to mitigating factors at sentencing and thereby imposed an excessive sentence while also failing to state adequate reasons for the sentence on the record.
Thus at this point in the proceeding, appellant had properly alleged a substantial question, pursuant to § 9781(b), for the court’s consideration prior to argument. Next in the sequence, prior to argument on the merits, see Pa.R.A.P. 2119(f), there must be a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of the sentence before going to the merits.
Only after the above statement did the appellant, in his brief, turn to the merits. (Appellant’s brief, p. 8). We believe the appellant’s statement, as summarized above, uncontested by the Commonwealth, is sufficient within the Pennsylvania Rules of Appellate Procedure as delineated above, and in conformity with Tuladziecki, supra, to permit us to accept this appeal and to consider appellant’s question on the merits.
As already stated, appellant was sentenced to a period of incarceration of eighteen (18) to thirty-six (36) months on
Although appellant sets forth a number of reasons in the argument section of his brief for finding an abuse of discretion — claiming the court focused primarily on the seriousness of the crime and using appellant as a deterrant to others — many of these do not pertain to the issue of whether the sentencing court gave adequate weight to mitigating factors at sentencing. As to mitigating factors, appellant stated:
Appellant takes the position that the sentencing court did not meaningfully consider the non-violent nature of the original offenses, the needs of the Defendant, his young age, the needs of society and his extensive drug habit and rehabilitaive [sic] potential. The sentencing court had a duty to consider these factors and any ability for rehabilitation, and whether a less severe sentence would have been appropriate.
Brief for Appellant at 14.
“When a sentence is within statutory limits, and the court has complied with the Sentencing Code, 42 Pa.C.S. §§ 9701-9781, we will not reverse the sentencing court’s decision absent a manifest abuse of discretion.” Commonwealth v. Gallagher, 353 Pa.Super. 426, 452, 510 A.2d 735, 749 (1986); Commonwealth v. Brown, 314 Pa.Super. 311, 460 A.2d 1155 (1983). Pennsylvania trial judges are vested with broad sentencing discretion with which the appellate courts will not interfere absent manifest abuse. Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981); Commonwealth v. White, 341 Pa.Super. 261, 491 A.2d 252 (1985). Discretion must be accorded sentencing judge’s decisions, because such judge is in the best situation to
In the instant case, the sentence imposed was rigorous but well within the statutory limits and guidelines. After considering the appellant’s prior criminal record, which began ten or eleven years ago when appellant was a juvenile, appellant’s extensive drug problem and self-admitted addiction to marijuana, the nature of the serious crime of selling drugs and appellant’s character, the sentencing judge concluded that appellant should be incarcerated in order to protect both himself and society and further his rehabilitation which appellant has been unable to accomplish on his own (N.T. 4/2/86, pp. 5-9). While it is true that prior record scores are incorporated into the guideline ranges, those specifically chargeable offenses sometimes do not adequately bear out the defendant’s anti-social and disruptive activity. Here, the trial court paid considerable attention to those factors and weighed them more heavily against the defendant than any redeeming considerations present.
Finally, appellant’s argument that the court did not take into account mitigating factors in considering sentencing is without substance. Only in capital cases does the law require a set off of mitigating and aggravating circumstances in making a determination, i.e., between life in prison and death. See 42 Pa.C.S. § 9711. In any other case, the court is required to assess the rehabilitative needs of the defendant, and despite the existence of factors such as good family, church attendance, employment, etc., if continued criminal behavior is such that the prediction for law abiding behavior is slim or none, and the mitigating
We conclude that the sentencing judge gave adequate weight to the existing mitigating factors and that the sentence imposed was not excessive and there was no abuse of discretion.
Judgment of sentence affirmed.
. Appellant sold approximately one ounce of marijuana to an undercover state narcotics agent for the sum of $110 on two separate occasions — June 18, 1985 and July 2, 1985.
. Neither Tuladziecki nor the recent decision of this Court, Commonwealth v. Hawthorne, 364 Pa.Super. 125, 527 A.2d 559 (1987), prevent appellate review for lack of headings as to “substantial question" and "statement of reason" when, as here, the brief was in substantial conformity with the rules.
Concurring Opinion
concurring:
I join the Majority Opinion in all respects. I write separately to address the issues raised relative to the application of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).
Initially, one must realize that the Superior Court of Pennsylvania has jurisdiction to hear appeals involving the discretionary aspects of sentencing. 42 Pa.C.S.A. § 9781(b) provides discretionary jurisdiction in this court and the Supreme Court in Tuladziecki indicated the procedural steps necessary to invoke that discretionary review.
It is obvious that the method of raising the issue to this court for our exercise of discretion in reviewing the discretionary aspects of sentencing is procedural. As the majority stated in Tuladziecki:
“The Appellant properly preserved his challenge to this procedural violation, and for the reasons stated herein the Superior Court’s decision to overlook it must be vacated.”
Since the Supreme Court has clearly labeled the failure to properly follow the Appellate Rules in raising the issue of
In the instant case, the Appellee did not object to the procedural irregularity in the Appellant’s brief in raising the issue. Therefore, in my view that issue is waived.
However, since I am of the view that the Tuladziecki requirements are procedural I also agree with the Majority that this court, in exercising its discretion to determine whether it would review the sentence, can waive technical procedural defects.
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellee, v. Parrish MULLER, Appellant
- Cited By
- 14 cases
- Status
- Published