Commonwealth v. McIntosh

911 A.2d 513, 2006 Pa. Super. 311, 2006 Pa. Super. LEXIS 3560

• Court: Superior Court of Pennsylvania
• Decided: November 6, 2006
• Status: Published

Opinions

OPINION BY

TODD, J.:

¶ 1 The Commonwealth appeals the judgment of sentence imposed on Tracy McIntosh after he entered a plea of nolo contendere to a single count of sexual assault. For the following reasons, we reverse and remand for resentencing.¹

¶ 2 The charges in the instant case arose from a sexual encounter on the evening of September 6, 2002 between McIntosh, then a professor at the University of Pennsylvania (“Penn”), and the 23-year-old victim, M.R., who had just begun classes at Penn’s veterinary school. M.R. also was the niece of a good friend of McIntosh and, because of McIntosh’s relationship with M.R.’s uncle, M.R. and McIntosh had met each other prior to her matriculation at Penn. McIntosh offered to show M.R. around the city after M.R. moved to Philadelphia, and the two agreed to get together on September 6, 2002.

¶ 3 On that evening, M.R. and McIntosh met at McIntosh’s research lab on Penn’s campus. From there, the two embarked on a night of drinking that took them to three local bar/restaurants. Over the course of the evening, both parties consumed several alcoholic beverages. While at the second establishment, the White Dog Cafe, M.R. began to feel “strange” and “out of it.” Upon moving to the third establishment, the Pod Bar, M.R. became disoriented and suffered memory loss and began projectile vomiting. In response to this situation, McIntosh walked M.R. back to his laboratory because she was unable to walk on her own, and gave her some marijuana, telling her that it would help settle her stomach. From this point forward, M.R.’s memory is fragmented and incomplete.

¶ 4 It is undisputed that McIntosh and M.R. returned to McIntosh’s laboratory and that sexual intercourse later ensued. In statements given to the police, M.R. indicated only partial recollection of what took place at the laboratory. She recalls kissing McIntosh at some point and then later observing McIntosh with his penis in his hand and then, finally, she recalls McIntosh placing his penis inside her vagina. M.R. remembered pulling up her pants after the sexual encounter ended and then, later, being in a cab en route to her apartment. When M.R. awoke the next day, she began recalling more of the events of the evening, and she told friends and family about the perceived assault but did not immediately contact authorities because of her family’s relationship with McIntosh. She finally called the police on November 18, 2002.

¶ 5 Over the next five months, the police investigated M.R.’s allegations, which ultimately led to McIntosh’s arrest on April 23, 2003. The investigation did not end with McIntosh’s arrest, however, as the police continued to investigate and attempted to collect evidence in support of the allegations and the theories of the case which were developed from M.R.’s statement. Among the theories the police attempted to develop was the possibility that McIntosh, who in his capacity as a research professor in the health field had access to narcotics, had provided M.R. with Nembutal or some other narcotic. Additionally, police eventually seized a couch in McIntosh’s laboratory with an eye toward seeking DNA samples to corroborate M.R.’s account of the events of the night in question. In the end, despite an audit of all narcotics to which McIntosh had access, police were not able to confirm any missing narcotics. Also, although samples taken from the couch were consistent with semen and vomit, no DNA results were obtained.

¶ 6 In response to charges of rape, sexual assault, indecent assault, unlawful restraint, knowing possession of a controlled substance, recklessly endangering another person, indecent exposure, and false imprisonment, on December 1, 2004, McIntosh pled nolo contendere to a single charge of sexual assault² and one count of knowing possession of marijuana.³ At the plea colloquy, a factual predicate was stated for the plea: McIntosh had sexual intercourse with the victim without her consent as she had been rendered incapable of consenting due to intoxication. It was for these actions that McIntosh stood for sentencing on March 2, 2005.

¶ 7 After a lengthy sentencing hearing before the Honorable Rayford A. Means, in which the court heard from numerous witnesses called by the victim and McIntosh, and after reviewing a presentence investigation report and other documents, the court imposed sentence. As we discuss more fully below, the net effect of the sentence imposed and the actions taken by the court on March 2, 2005 was to allow McIntosh to avoid incarceration, aside from the day he spent in jail after his arrest, and to serve a period of house arrest followed by eight years of probation for his conviction of sexual assault, plus a consecutive term of two years probation for the drug offense. On March 4, 2005, the Commonwealth filed a motion for reconsideration of sentence. On March 18, 2005, the Commonwealth’s motion for reconsideration was denied and, three days later, the Commonwealth filed the present appeal. Oral argument before this Court was held on March 21, 2006.

¶ 8 In this appeal, we are called upon to determine whether McIntosh’s sentence is illegal, i.e., not authorized by statute, and whether the trial court abused its discretion by rendering an excessively lenient sentence. Specifically, the Commonwealth presents two questions for our review:

1. Did the lower court impose an illegal sentence by placing defendant on house arrest with electronic monitoring, a form of intermediate punishment, where the legislature has expressly precluded such a sentence for the crime of sexual assault?

2. Did the lower court abuse its discretion by unreasonably deviating from the Sentencing Guidelines by imposing an excessively lenient sentence of house arrest and probation for the crime of sexual assault, a second degree felony, where the guidelines even in the mitigated range recommended incarceration in a state prison, and the court provided inadequate and improper reasons for its sentence?

(Commonwealth’s Brief at 5.)

¶ 9 In its first issue, the Commonwealth contends that the sentencing court “imposed an illegal sentence ... without statutory authorization” when it sentenced McIntosh to house arrest “because house arrest is a form of intermediate punishment and the legislature has expressly declared that a person convicted of sexual assault cannot be sentenced to intermediate punishment.”⁴ (Commonwealth’s Brief at 21.) The Commonwealth premises its argument upon 42 Pa.C.S.A. § 9804, which, in relevant part, reads:

§ 9804. County intermediate punishment programs

(a) Description. — County intermediate punishment program options shall include the following:

(1) Restrictive intermediate punishments providing for the strict supervision of the offender including programs that:

(i) house the offender full or part time;

(ii) significantly restrict the offender’s movement and monitor the offender’s compliance with the program; or

(iii) involve a combination of programs that meet the standards set forth under subparagraphs (i) and (ii).

(b) Eligibility.—

(1) No person other than the eligible offender shall be sentenced to a county intermediate punishment program.

42 Pa.C.S.A. § 9804. Further, the term “eligible offender” is defined in Section 9802 as follows:

Subject to section 9721(a.l) (relating to sentencing generally), a person convicted of an offense who would otherwise be sentenced to a county correctional facility, who does not demonstrate a present or past pattern of violent behavior and who would otherwise be sentenced to partial confinement pursuant to section 9724 (relating to partial confinement) or total confinement pursuant to section 9725 (relating to total confinement). The term does not include an offender with a current conviction or a prior conviction within the past ten years for any of the following offenses:

18 Pa.C.S. § 8124.1 (relating to sexual assault)

42 Pa.C.S.A. § 9802.

¶ 10 Since McIntosh was sentenced in the present case upon a nolo contendere plea for sexual assault, the Commonwealth contends that he was not eligible for county intermediate punishment and that his sentence is thus illegal. While we do not disagree with the Commonwealth’s primary premise, we nonetheless disagree with its characterization of McIntosh’s sentence and thus its conclusion that it was illegal.

¶ 11 Ultimately, the resolution of this issue on appeal revolves around the question of whether the court imposed a sentence of house arrest,⁵ as the Commonwealth contends, or imposed a sentence of total confinement, and then exercised the authority provided it by statute to grant parole⁶, which parole was restricted to house arrest. Literally read, it seems clear that the court imposed a sentence of total confinement of 11^ to 23 months imprisonment, but then granted McIntosh parole only a few moments later. In imposing sentence, the court stated in open court:

On the sexual assault....

Sentence is eleven and-a-half to twenty-three months; eight years consecutive probation on the sexual assault, followed by two years’ consecutive probation on knowing and intentional possession of a controlled substance. For a total [of] twelve years you will be under my supervision.

You are going to [be] immediately paroled to house arrest. You will report here monthly.

(N.T. Sentencing, 3/02/05, at 114-15.) Additionally, the sentencing order reads:

Charge #2 — Not less than eleven and one half months nor more than twenty three months in the Phila. County Prison and eight years county reporting consecutive probation to run concurrently with any sentence now serving. Credit time served, if any on this case. Pay supervision fee $235.50 court costs, $20,000.00 fine, $20,000.00 restitution for counseling, $1,000.00 lab fee. Defendant granted immediate forthwith parole to House Arrest with Electronic Monitor. Defendant confined to home. Registration with State Police for Megan’s Law. Payments to begin within 3 months. No supervisory position of employment or social setting. Remain in counseling treatment until cured. Stay away order issued. No discussion of case on internet or anywhere. Status date 4-1-05, rm. 804, 8:00 A.M. By the Court.

(Sentencing Order, 3/2/05.)

¶ 12 Despite the literal wording of the court’s sentence, the Commonwealth contends that the present case is indistinguishable from Commonwealth v. DiMauro, 434 Pa.Super. 129, 642 A.2d 507 (1994), a case where this Court found the imposition of a sentence of intermediate punishment illegal. We find DiMauro to be distinguishable. In DiMauro, “[flour concurrent sentences of six months to five years less one day were imposed. [Di-Mauro] was given 30 days credit for time served in an in-patient treatment program and the remainder of his sentence was to be served at home subject to electronic monitoring.” Id. at 130, 642 A.2d at 508. DiMauro was sentenced after pleading guilty to four counts of aggravated assault which was, like sexual assault, an offense which rendered DiMauro ineligible for intermediate punishment under 42 Pa.C.S.A. § 9729 (repealed), the then-applicable statutory provision relating to intermediate punishment, and the predecessor of 42 Pa. C.S.A. §§ 9802 and 9804. Because we concluded that DiMauro was not eligible for intermediate punishment under 42 Pa. C.S.A. § 9729, we vacated the judgment of sentence and remanded for resentencing.

¶ 13 Although the Commonwealth contends that DiMauro is indistinguishable from the present case, a review of the DiMauro opinion reveals that the term “parole” is not even mentioned. As such, there is no indication that DiMauro was given a sentence of total confinement and then paroled to house arrest, as was done here. From the history provided in Di-Mauro, we must assume that, rather than imposing a sentence of total confinement and then paroling DiMauro, the court directly imposed a sentence of house arrest, a form of intermediate punishment which was clearly prohibited under Section 9729. Thus, in this admittedly technical but nonetheless dispositive fashion, DiMauro is distinguishable from the facts of the present case.

¶ 14 In its reply brief, the Commonwealth seemingly acknowledges that the court’s sentence, literally read, imposed a sentence of total confinement, but that the court then granted McIntosh immediate parole. (See Commonwealth’s Reply Brief at 12 (“The lower court, while purporting to impose an eleven and one-half to twenty-three month sentence, in reality sentenced defendant to intermediate punishment by immediately paroling him to house arrest with electronic monitoring.”).) The Commonwealth then proffers an argument that invites us to look behind the literal words and actions of the court in imposing a sentence of total confinement and then granting parole and to consider instead the net effect of the court’s actions vis-á-vis McIntosh — immediately placing him on house arrest. The Commonwealth contends that justifying the court’s approach would involve “nothing more than semantics,” arguing that “the lower court could not avoid the clear legislative proscription against placing a defendant convicted of sexual assault on house arrest by simply playing word games.” (Commonwealth’s Reply Brief at 12.) We understand the Commonwealth’s frustration with the court’s actions which seem patently designed to avoid the proscriptions set forth in 42 Pa.C.S.A. § 9804. Additionally, we would not disagree that the difference appears to be mostly a semantic one. However, we are aware of no authority which allows us to ignore the pronouncement of the court and, in effect, call a spade a heart. Absent such authority, we believe we are bound to find no illegality in the trial court’s literal sentence.

¶ 15 Moreover, disregarding the pronouncement of the court and recasting the court’s words and actions would invite a whole different set of problems. If it were deemed impermissible for the court to grant parole on a sentence under its supervision immediately after imposition of the sentence, would the court be empowered to grant parole in two weeks? ⁷ A month? Six months? At what point would the court’s granting of parole prior to the expiration of the minimum sentence turn a permissible sentence of total confinement into an impermissible sentence of intermediate punishment? In sum, we conclude this Court is not empowered to disregard what the court states is its sentence and look to the net effect of its actions.⁸ Accordingly, we must reject the Commonwealth’s contention that McIntosh’s sentence was illegal.

¶ 16 In its second issue, the Commonwealth contends that the sentencing court abused its discretion in imposing an “excessively lenient sentence of house arrest and probation for the crime of sexual assault” and provided “inadequate and improper reasons for its sentence.” (Commonwealth’s Brief at 5.) Preliminarily, we note that sentencing is a matter vested in the sound discretion of the sentencing judge, whose judgment will not be disturbed absent an abuse of discretion. Commonwealth v. Ritchey, 779 A.2d 1188, 1185 (Pa.Super.2001). Where an appellant challenges the discretionary aspects of a sentence, as in the instant case, there is no automatic right to appeal and an appellant’s appeal should be considered a petition for allowance of appeal. Id. Before a challenge to a judgment of sentence will be heard on the merits, an appellant first must set forth in its brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of the sentence. Id. The Commonwealth has complied with this requirement.

¶ 17 In addition, an appellant must show that there is a substantial question as to whether the imposed sentence was inappropriate under the Sentencing Code. See id.; 42 Pa.C.S.A. § 9781(b). Whether an issue raises a substantial question is a determination that must be made on a case-by-case basis; however, in order to establish a substantial question, the appellant generally must establish that the sentencing court’s actions either were inconsistent with a specific provision of the Sentencing Code or contrary to the fundamental norms which underlie the sentencing process. Ritchey, 779 A.2d at 1185.

¶ 18 Here, as with its first issue, the Commonwealth’s argument that the sentencing court imposed an excessively lenient sentence centers on its characterization of McIntosh’s sentence as one of house arrest and probation, when in fact the sentence imposed, as we have explained above, was imprisonment of 11 ^ to 28 months, plus probation, and then immediate parole. Nonetheless, we conclude that the Commonwealth suitably asserts as error, and as substantial questions justifying allowance of appeal from the discretionary aspects of McIntosh’s sentence, the sentencing court’s failure to place on the record its reasons for departing from the sentencing guidelines, see Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa.Super.1999) (en banc) (assertion that the sentencing court did not provide sufficient reasons for imposing sentence outside of the sentencing guidelines raised substantial question), and its reliance on impermissible factors, see Commonwealth v. Kraft, 737 A.2d 755, 757 (Pa.Super.1999) (claim that sentence is excessive because trial court relied on impermissible factor raises substantial question). These two claims are preserved in the Commonwealth’s concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of the sentence, see Pa.R.A.P. 2119(f); and so we will review them.⁹

¶ 19 Under the sentencing guidelines, the recommended minimum sentence for McIntosh was 36-54 months imprisonment in the standard range, 24-36 months imprisonment in the mitigated range, and 54-66 months imprisonment in the aggravated range. At the sentencing hearing, although the court was presented with arguments from defense counsel and counsel for the Commonwealth regarding the standard, mitigated, and aggravated sentence ranges for McIntosh’s offense under the sentencing guidelines, in imposing sentence, the sentencing court never indicated its awareness of the sentencing guidelines — in particular, the court did not indicate it was cognizant that the sentence imposed was a departure from the sentencing guidelines, or, indeed, was significantly below the mitigated range.¹⁰ Moreover, and as a result, the sentencing court provided no justification for why a downward departure from the guidelines was appropriate (or even, for that matter, why a mitigated range sentence would have been justified). The Sentencing Code provides:

In every case where the court imposes a sentence outside the sentencing guidelines adopted by the Pennsylvania Commission on Sentencing pursuant to section 2154 (relating to adoption of guidelines for sentencing) and made effective pursuant to section 2155, the court shall 'provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.

42 Pa.C.S.A. § 9721(b) (emphasis added). For this reason, the judgment of sentence must be vacated and McIntosh resen-tenced.¹¹

¶ 20 Moreover, after reviewing the reasons provided by the sentencing court for its sentence in its 1925(a) opinion, we agree with the Commonwealth that these reasons are insufficient to justify the sentence, and, in part, rely on impermissible factors.¹² A departure from the guidelines should not be based on the sentencing court’s conclusion that the guideline range is either too harsh or too lenient,

but rather, departure should be based upon the conclusion that the conduct underlying the crime in question differed from the conduct typically associated with that crime so as to render the suggested punishment inappropriate for the particularized facts of the case.

Commonwealth v. Kleinicke, 895 A.2d 562, 589 (Pa.Super.2006). The sentencing court wholly failed to explain how the sexual assault in this crime differed from the typical sexual assault.

¶21 Also, in several respects the sentencing court relied on improper factors or mischaracterizations of the record in fashioning its sentence.¹³, ¹⁴ First, the sentencing court, in its 1925(a) opinion, found justification for its sentence by comparing the sentence in this case with the sentences in four cases the sentencing court found to be similar, each involving negotiated pleas to sexual assault and related crimes. {See Trial Court Opinion, 5/24/05, at 19-23.) As the Commonwealth points out, however, this Court has criticized just such analogizing as unreasonable. See Commonwealth v. Celestin, 825 A.2d 670, 680 (Pa.Super.2003) (in rejecting such comparisons as unreasonable, noting that “a sentencing court in one case cannot possibly know all of the various considerations and factors underlying a negotiated plea in another case”).

¶22 Next, the sentencing court, apparently in justification of a more lenient sentence, noted that incarceration would be a hardship for McIntosh’s family because they were financially dependent on him. (Trial Court Opinion, 5/24/05,. at 15, 18.) As the Commonwealth notes, however, the pre-sentence report indicates that, at that time, McIntosh was unemployed and had no employment prospects. (Pre-Sentence Report, 2/22/05.)

¶ 23 Most critically, however, and of the greatest concern to this Court, the sentencing court erroneously cast McIntosh’s conduct, not as criminal, but as simple “bad judgment” (N.T. Sentencing, 3/2/05, at 114), as “inappropriate” (Trial Court Opinion, 5/24/05, at 13), as a “mistake of judgment” {id. at 12-13), and as “poor judgment, and dishonorable behavior” {id. at 14). Ignoring the factual basis for McIntosh’s plea to the crime of sexual assault, the court stated that “[tjhere is a possibility that the defendant’s conduct, while morally wrong, was a mistake of judgment as to the desires of the complainant.” {Id. at 12-13.) Having reviewed the plea colloquy {see N.T. Plea Hearing, 12/1/04, at 13-20), we conclude that there is no basis for these characterizations.¹⁵ Moreover, perhaps as a result of these mischaracterizations, the court found that “probably the biggest loss of all” from McIntosh’s conduct was not its obvious detrimental effect on the victim, but on the friendship and relationship between the families involved. (N.T. Sentencing, 3/2/05, at 115-16.)

¶ 24 The sentencing court was also, at times, oddly deferential to McIntosh. At the plea colloquy, for example, the court explained to McIntosh that he need not be worried about being seen by the public: “I’ve excused [the jury] so you didn’t have to walk out there. Nobody of that group has to ever see you. The courtroom is clear. It’s as if you and your lawyers were sitting and talking. I’ll have your paperwork ready. Your lawyers can take you if you want.” (N.T. Plea Hearing, 12/1/04, at 30.) Moreover, and most significantly, the sentencing court’s concern for McIntosh’s rehabilitative needs, in our view, vastly outweighed the court’s consideration of society’s, and the victim’s, need for the imposition of a punishment commensurate with the seriousness of the crime committed by McIntosh.

¶25 Indeed, we find that the tenor of the sentencing hearing as a whole reveals that the sentencing court treated McIntosh, who was 52 years-of-age, less as a criminal than as a school boy requiring direction and supervision. (See, e.g., N.T. Sentencing, 3/2/05, at 117 (“I do not believe you have to be warehoused. I think you just have to be directed in the right direction. You have to have someone like me for twelve years over your head.”).) The court also indicated its opinion that McIntosh had suffered enough: “[T]he defendant has also suffered punishment in the fact that he has lost his job and his reputation has been damaged significantly.” (Trial Court Opinion, 5/24/05, at 16.) We find that the sentencing court failed to properly treat McIntosh’s admitted criminal conduct as the very serious crime that it is, sexual assault. See Celestin, 825 A.2d at 681 (“The Pennsylvania Commission on Sentencing has assigned the offense of sexual assault to Level 5 of the sentencing guidelines, placing it in the same category as murder, voluntary manslaughter, rape, robbery, aggravated assault, kidnapping and arson.”)

¶ 26 Accordingly, based on its later-stated reasons for its sentence and its characterizations of McIntosh’s conduct, we find the sentencing court’s reasoning erroneous and its sentence, constituting a severe downward departure from the sentencing guidelines, unreasonable. Accordingly, on this additional basis, we vacate the judgment of sentence and remand for resen-tencing. See Kleinicke, 895 A.2d at 589 (noting that where “the reasons offered for the departure [from the sentencing guidelines] do not appear reasonable to this Court, the sentence will be vacated and the case remanded for resentencing”).

¶ 27 Furthermore, in consideration of the expressions of the sentencing court that, in our view, depreciated the seriousness of the crime, disregarded the psychological harm suffered by the victim, may have inappropriately given rise to a more lenient sentence, and indicated an inappropriate deference by the sentencing court to McIntosh, we instruct on remand that the ease be reassigned to another judge for resentencing.¹⁶ See In re R.W., 855 A.2d 107, 112 n. 3 (Pa.Super.2004) (“Assignment to a different judge on remand is appropriate when the judge’s actions below demonstrated a degree of bias, capricious disbelief, or prejudgment such as to raise doubts as to his or her ability to preside objectively and fairly upon remand.” (internal quotation marks omitted)).

¶ 28 Accordingly, for the foregoing reasons, McIntosh’s judgment of sentenced is reversed and the case is remanded for resentencing before another judge of the Court of Common Pleas of Philadelphia County.

¶ 29 Judgment of sentence REVERSED. Motion to quash DENIED. Case REMANDED for resentencing. Jurisdiction RELINQUISHED.

¶ 30 BENDER, J. files a Concurring and Dissenting Opinion.

1 . We deny McIntosh’s motion to quash the Commonwealth’s reply brief.

2 . Sexual assault is defined as follows:

§ 3124.1. Sexual assault

Except as provided in section 3121 (relating to rape) or 3123 (relating to involuntary deviate sexual intercourse), a person commits a felony of the second degree when that person engages in sexual intercourse or deviate sexual intercourse with a complainant without the complainant’s consent.

18 Pa.C.S.A. § 3124.1.

3 . 35 P.S. § 780-113(a)(16).

4 . Although the Commonwealth concedes that it did not raise this challenge below, it asserts, and we agree, that an argument that the sentencing court lacked the statutory authority to impose a sentence of house arrest goes to the legality of sentence, an issue that cannot be waived. See Commonwealth v. Vasquez, 560 Pa. 381, 387, 744 A.2d 1280, 1284 (2000).

5 . It is uncontested that a sentence of house arrest is a form of intermediate punishment.

6 . See 61 P.S. § 314.

7 . In its reply brief, the Commonwealth raises for the first time the claim that the trial judge’s sentence of immediate parole violated 61 P.S. § 314, which requires, inter alia, that before a convict be paroled, the convict must file a petition for parole, and the Commonwealth must be served with the petition at least 10 days before a required hearing on the petition is held. See 61 P.S. § 314. The Commonwealth notes that no such petition was filed, nor was the 10-day service requirement adhered to. However, we conclude that the Commonwealth has waived this issue by failing to raise it below. Unlike the Commonwealth's argument that the court’s sentence was illegal as violative of 42 Pa.C.S.A. §§ 9802 and 9804, see supra note 4, its argument that Section 314 was violated does not attack the legality of the sentence: the Commonwealth is not challenging the power of the court to have granted parole, but, rather, whether the proper procedures were followed. Thus, by failing to object below, we deem the Commonwealth to have waived its argument that the procedural requirements of Section 314 were not followed. See Commonwealth v. Lopata, 754 A.2d 685, 689 (Pa.Super.2000) (“A claim which has not been raised before the trial court cannot be raised for the first time on appeal.”).

8 . We further note that there are provisions in our statutory law explicitly prohibiting the granting of parole prior to the expiration of a minimum sentence. See, e.g., 18 Pa.C.S.A. § 2506 (drug delivery resulting in death); 42 Pa.C.S.A. § 9717 (sentences for offenses against elderly persons); 42 Pa.C.S.A. § 9718 (sentences for offenses against infant persons). Illustrative of such statutory language is 35 P.S. § 780-113, which reads;

Prohibited acts; penalties

(k) Any person convicted of manufacture of amphetamine, its salts, optical isomers and salts of its optical isomers; methamphetamine, its salts, isomers and salts of isomers; or phenylacetone and phenyl-2-pro-ponone shall be sentenced to at least two years of total confinement without probation, parole or work release, notwithstanding any other provision of this act or other statute to the contrary.

35 P.S. § 780-113. Notably, the legislature has not to date chosen to impose such a provision with respect to sexual assault.

9 . Although the language in its post-sentence motion is imprecise, we also find that these issues were preserved in that motion. (See Commonwealth’s Motion for Reconsideration of Sentence, 3/4/05.)

10 . The minimum sentence of 11% months imprisonment imposed by the trial court was 12% months shorter than the low end of the mitigated range provided by the sentencing guidelines.

11 . The sentencing court’s after-the-fact statement in its 1925(a) opinion in justification of its sentence is insufficient to satisfy the mandate of Section 9721(b) that a contemporaneous written statement of the reasons supporting deviation from the guidelines be provided.

12 .We are required to vacate a sentence and remand for resentencing if we find

that "the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.” 42 Pa.C.S.A. § 9781(c)(3). In determining whether a sentence is unreasonable, an appellate court shall have regard for: "(1) The nature and circumstances of the offense and the history and characteristics of the defendant[;] (2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation!;] (3) The findings upon which the sentence was based[; and] (4) The guidelines promulgated by the commission.” 42 Pa.C.S.A. § 9781(d).

Commonwealth v. Celestin, 825 A.2d 670, 676 (Pa.Super.2003).

13 . Although the Commonwealth asserts that the sentencing court erroneously relied on McIntosh’s lack of a prior record as a mitigating factor, thus double-counting this fact as it is already taken into account in the sentencing guidelines, our reading of its opinion shows that the sentencing court only considered this factor in relation to its probation decision (see Trial Court Opinion, 5/24/05, at 17), which is a proper consideration, see 42 Pa.C.S.A. § 9722.

14 . Contrary to the claims of the Commonwealth that the sentencing court improperly relied on the determination of the Sexual Offenders Assessment Board that McIntosh was not a sexually violent predator in fashioning its sentence {see Commonwealth’s Brief at 52-56), this Court has held that a sentencing court may rely on such information as an aid at sentencing. See Commonwealth v. Shugars, 895 A.2d 1270, 1277 (Pa.Super.2006) (rejecting contention that trial court erroneously relied on defendant’s categorization as sexually violent predator to aggravate sentence, noting that factors leading to such categorization were proper sentencing considerations).

15 . It seems these mischaracterizations led the court to credit McIntosh for what we find to be a meager acceptance of responsibility. (See, e.g., Trial Court Opinion, 5/24/05, at 14 ("[T]he defendant accepted responsibility for his poor judgment, and dishonorable behavior.”).) At the sentencing hearing, McIntosh explained that he now understood how he and the victim "got backed in this inappropriate situation,” and described his behavior “in that room in those ten minutes in my office” as "dishonorable” and the result of "poor judgment.” (N.T. Sentencing, 3/2/05, at 110-12.) He added that "[o]n this night I did not act as a good husband or father.” (Id. at 111.) As admissions of criminal culpability, we find such expressions utterly lacking.

16 . We note the recent per curiam order of our Supreme Court reversing an order of this Court which, inter alia, directed that a different sentencing judge be assigned on remand of the case. See Commonwealth v. Klueber, 904 A.2d 911 (Pa.2006) (per curiam). Without further explanation, our high Court indicated that such a direction was "inappropriate[].” Id. at 911. As this aspect of the per curiam order failed to garner the support of a majority of the justices, however, it is nonpre-cedential.