Commonwealth v. Muller

528 A.2d 191, 364 Pa. Super. 346, 1987 Pa. Super. LEXIS 8391
CourtSupreme Court of Pennsylvania
DecidedJune 18, 1987
Docket554
StatusPublished
Cited by14 cases

This text of 528 A.2d 191 (Commonwealth v. Muller) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Muller, 528 A.2d 191, 364 Pa. Super. 346, 1987 Pa. Super. LEXIS 8391 (Pa. 1987).

Opinions

TAMILIA, Judge:

On February 18, 1986, appellant pled guilty to two charges of possession with intent to deliver marijuana.1 Appellant was sentenced, on April 2,1986, by the Honorable Shad Connelly, on the first drug charge to pay costs, restitution, a fine of $100 and to serve a period of eighteen (18) months to thirty-six (36) months incarceration. On the second charge, appellant was sentenced to pay costs, a $500 fine, restitution and to serve three (3) years consecutive probation. A timely motion to modify sentence was filed by appellant and denied on April 10, 1986. Appellant now brings this timely appeal to that denial.

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, [349]*349496 A.2d 777 (1985); Commonwealth v. Brown, 342 Pa.Super. 249, 492 A.2d 745 (1985); Commonwealth v. Martin, 328 Pa.Super. 498, 477 A.2d 555 (1984). However, since appellant’s first issue regarding the trial court’s weighing of mitigating factors was presented in appellant’s motion to modify, we will address it.

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.

[350]*350While the appellant did not specify that the statement following the statement of question, titled “Argument”, was pursuant to Rule 2119(f), in fact, the statement precisely contained the reasons relied upon, by statute, case law and the sentencing guidelines for allowance of appeal of the discretionary aspects of the sentence. There, the appellant delineated the extent of discretion of the trial court, the degree to which the trial court is bound by the sentencing guidelines (Appellant’s brief, p. 6), as well as the responsibility of the trial judge to apprise himself of the character of the defendant and circumstance of the offense, and secondly, to formulate and explain the sentence in light of the guidelines specified in the sentencing code (Appellant’s brief, p. 7). In addition, the court must carefully consider the weight given to each of the grounds set forth in the applicable grounds of the sentencing code (Appellant’s brief, p. 8). If the court failed to follow the process detailed above, there was an abuse of discretion as to the discretionary aspects of sentence which required appellate review and resentencing.2 (Appellant’s brief, p. 8). We are in an entirely different posture here than was the case in Tulad-ziecki, supra, where the panel decided there was a substantial question after considering the merits in a “post hoc determination that a substantial question exists.”

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 [351]*351the first count. Under the sentencing guideline prepared, the minimum range of imprisonment was zero (0) to twelve (12) months, the aggravated range was twelve (12) to eighteen (18) months and the mitigated range was non-confinement. The statutory limit for this offense is five (5) years imprisonment (35 P.S. § 780-113(a)(30) and (f)). Thus appellant was sentenced within the aggravated range of the guidelines.

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.

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Commonwealth v. Muller
528 A.2d 191 (Supreme Court of Pennsylvania, 1987)

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Bluebook (online)
528 A.2d 191, 364 Pa. Super. 346, 1987 Pa. Super. LEXIS 8391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-muller-pa-1987.