Commonwealth v. Douglass

535 A.2d 1172, 370 Pa. Super. 104, 1988 Pa. Super. LEXIS 24

• Court: Supreme Court of Pennsylvania
• Decided: January 11, 1988
• Docket: 132-137
• Status: Published

Opinions

TAMILIA, Judge:

This is an appeal from judgment of sentence entered after appellant pled guilty to nineteen (19) counts of various violations of the controlled substance laws. The cumulative sentence imposed totalled five (5) to twenty-five (25) years imprisonment to be followed by five (5) years probation, and payment of the costs of prosecution, $8,153.13, and to pay a fine of $6.

Appellant’s only argument on appeal is that the trial court abused its discretion by imposing an excessive sentence. Since this is a challenge to the discretionary aspects of his sentence, appellant must “set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of [the] sentence.” Pa.R.A.P. 2119(f). See Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Permission to amend the brief by submitting a post-submission statement concerning the discretionary aspects of sentencing was granted and on October 9, 1987, such a statement was properly filed. According to the statement, appellant believes the sentence is excessive because “the trial court did not fully consider his age, education, prior record, his likelihood of reforming, the fact that the victims were willing participants, no weapon was involved, he has the capacity to change and does not possess the criminal mentality to support a total sentence of five (5) to twenty-five (25) years incarceration.” Appellant’s brief (supplement) at p. 18.

As we have said in so many cases that they require no citation, sentencing is the domain of the trial judge and generally, that judgment will not be disturbed absent an abuse of discretion, Commonwealth v. Parrish, 340 Pa.Super. 528, 490 A.2d 905 (1985), and if the sentence is within the statutory limits, there is no abuse of discretion unless the sentence is manifestly excessive so as to inflict too severe a punishment. Parrish, supra. In this case, the appellant was charged and found guilty of nineteen (19) counts of various violations of the Controlled Substance, Drug, Device and Cosmetic Act. After his arrest, he intentionally left the Commonwealth in an attempt to avoid prosecution. He was returned from Alaska after lengthy extradition proceedings. In this case, the sentence was well within the minimum range of the sentencing guidelines ¹ and the sentencing judge stated his reasons for the sentence. The trial judge had before him a complete presentence report which he considered and he was, therefore, fully aware of the age and other social factors relating to the appellant. He was concerned on balance, however, with the numerous offenses and seriousness of selling drugs as a full-time occupation for over one year, primarily to young people. We can find no fault in the trial judge’s conclusion that this is more onerous than other offenses.

As to application of the sentencing guidelines, despite the recent invalidation of the guidelines by the Supreme Court, a sentence pursuant to the guidelines is not thereby invalidated if, in all other respects, it complies with the sentencing code.² In this case, the specifically applicable section is 42 Pa.C.S.A. § 9725 Total confinement.³ All three subsections of that provision are implicated here and justify the sentence imposed. No abuse of discretion is evident and the sentence may not be disturbed. Commonwealth v. Martin, 328 Pa.Super. 498, 477 A.2d 555 (1984).

Judgment of sentence affirmed.

Concurring Statement by BROSKY, J. Concurring Opinion by KELLY, J.

1 . As to applying the guidelines in this case, they would not be made irrelevant by Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987), as footnote 2 therein provides:

2 This ruling is applicable to cases where the issue [of constitutionality] has been "properly preserved at all stages of adjudication up to and including any direct appeal." Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983).

We note that the Supreme Court, in Sessoms, did not bar the trial court from considering the guidelines in determining an appropriate sentence.

2 . See Sessoms, supra, Concurring Opinion by Papadakos, J.

3 . § 9725. Total confinement

The court shall impose a sentence of total confinement if, having regard to the nature and circumstances of the crime and the history, character, and condition of the defendant, it is of the opinion that the total confinement of the defendant is necessary because:

(1) there is undue risk that during a period of probation or partial confinement the defendant will commit another crime;

(2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or

(3) a lesser sentence will depreciate the seriousness of the crime of the defendant.