Commonwealth v. Myers
Commonwealth v. Myers
Opinion of the Court
This is an appeal from the judgment of sentence for robbery. Appellant contends that the sentencing court erred in (1) including his prior juvenile adjudications of delinquency in calculating his prior record score without first making a finding on the record regarding the “nature of these adjudications”; and (2) failing to set forth adequate reasons on the record to justify the disparity between his sentence and that of his co-defendant. For the reasons that follow, we affirm the judgment of sentence.
Both contentions raised in this appeal concern discretionary aspects of sentencing.
Appellant first contends that the sentencing court applied the sentencing guidelines erroneously because it included prior juvenile adjudications of delinquency in calculating his prior record score without first making a finding regarding the nature of the adjudications.
In computing a defendant’s prior record score, the Sentencing Guidelines direct a sentencing court to score, inter alia, “[a]ll prior juvenile adjudications of delinquency where there was an express finding that the adjudication was based on the commission of a felony or one of the weapons misdemeanors listed in subsection (a)(3) where the adjudication occurred on or after the defendant’s 14th birthday.” 204 Pa. Code § 303.7(b)(l)(ii) (emphasis supplied). Appellant’s argument is that the court made no findings with
A review of the sentencing hearing shows that the court indeed found that appellant’s prior adjudications of delinquency were based on the commission of felonies. The court stated that
We also note that the prior record of the Defendant occurred in 1981 in which, as a juvenile, he was charged with three counts of burglary and placed on probation for a period of two years. The three burglaries of which the Defendant was convicted as a juvenile are felonies, and therefore, in the prior record score, increases the range of the sentence under the sentencing guidelines. Again, the Court obviously must consider the guidelines and must follow them unless there are exceptional circumstances.
N.T. July 21, 1986 at 5. Accordingly, we conclude that appellant’s first claim is meritless.
Appellant next contends that the sentencing court abused its discretion by failing to set forth adequate reasons to justify the disparity between his sentence and that of his co-defendant. “[F]or a trial judge to impose different sentences on co-defendants, he [or she] must find differences between the co-defendants to justify the sentences.” Commonwealth v. Velez, 329 Pa. Superior Ct. 15, 16, 477 A.2d 879, 880 (1984). Moreover, “[t]he reason that one co-defendant receives a more severe sentence than another must be stated on the record.” Id. Because appellant’s contention, if it proves to have merit, would require that we remand the case for resentencing, see id., 329 Pa.Superior Ct. at 18, 477 A.2d at 881, it presents a substantial question that the sentence imposed was inappropriate. Accordingly, we grant the petition for allowance of appeal as to this issue and turn to the merits of the claim.
A sentencing court is not required to impose the same sentence on all participants in a crime. Commonwealth v. Sinwell, 311 Pa. Superior Ct. 419, 427, 457 A.2d
In the instant case, appellant pleaded guilty, and was sentenced to a forty-four-to-eighty-eight-month term of imprisonment, while appellant’s co-defendant, Sweitzer, who also pleaded guilty, was sentenced, pursuant to a plea arrangement, to two concurrent two-to-four year terms of imprisonment. Appellant and his co-defendant pleaded guilty, and were sentenced, before different judges. N.T. August 11, 1986 at 2-3. Under Commonwealth v. Craft, supra, because appellant and his co-defendant appeared before different judges, it was not incumbent upon the sentencing court to explain the disparity in the sentences. Moreover, even if the disparity is so great that reasons should have been given, see Commonwealth v. Holler, supra, a review of the sentencing hearing reveals that the court articulated factors that were sufficient to support appellant’s sentence. The court noted that appellant’s co-defendant, unlike appellant, was sentenced pursuant to a plea arrangement. N.T. August 11, 1986 at 2-3. In addition, the sentencing court had the benefit of a pre-sentence investigation and report, while no such report was prepared regarding appellant’s co-defendant. Id. Finally, the court below provided ample justification for the sentence imposed: the court was aware of the co-defendant’s sentence, appellant’s background and circumstances, his improved behavior
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
. Without including the juvenile adjudications, appellant's prior record score would have been zero. The mitigated minimum range for an offense gravity score of seven and a prior record score of zero with a weapons enhancement is 16-to-20 months. See 204 Pa. Code § 303.9. Thus, his minimum sentence of forty-four months was considerably longer than that recommended for a prior record score of zero.
. We note that two recent en banc decisions of this Court have determined that the question whether juvenile adjudications may properly be included in computing prior record scores implicates a discretionary aspect of sentencing and not sentencing legality. See Commonwealth v. Krum, 367 Pa. Superior Ct. 511, 533 A.2d 134 (1987); Commonwealth v. Tilghman, 366 Pa. Superior Ct. 328, 531 A.2d 441 (1987).
. We note that appellant has not challenged the constitutionality of the Sentencing Guidelines. According, Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987) is inapplicable. Id., 516 Pa. at 380 n. 2, 532 A.2d at 782 n. 2.
Dissenting Opinion
dissenting opinion:
I respectfully dissent. I disagree with the majority’s decision to reach the merits of this appeal. Myers challenges discretionary aspects of the sentence imposed. Where a purely discretionary aspect of sentencing is being challenged, the appellant must include in his brief a “concise statement of the reasons relied upon for allowance of appeal.” 42 Pa. C.S. § 9781(b). This statement must show that there exists a “substantial question that the sentence imposed is not appropriate under [the Sentencing Code].” Id.; Pa. R.A.P. 2119(f); see also Commonwealth v. Tuladzeicki, 513 Pa. 508, 522 A.2d 17 (1987).
I disagree with the majority decision in Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc), which held that an appellant’s failure to comply with Pa. R.A.P. 2119(f) and Tuladziecki, if not objected to by the appellee, is a waivable procedural violation. Compliance with the rule is necessary in order to invoke this court’s jurisdiction. The Krum majority, in my opinion, has misinterpreted Tuladziecki. See Krum, 367 Pa.Super. at 520, 533 A.2d at 139 (Brosky, J., dissenting); see also Commonwealth v. Tilghman, 366 Pa.Super. 328, 531 A.2d 441 (1987) (en banc) (Cirillo, P.J., concurring). In failing to include a Rule 2119(f) statement in his brief, Myers has failed to properly invoke this court’s jurisdiction. The proper course,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.