Commonwealth v. Ousley

573 A.2d 599, 392 Pa. Super. 549, 1990 Pa. Super. LEXIS 889
CourtSupreme Court of Pennsylvania
DecidedApril 18, 1990
Docket177
StatusPublished
Cited by23 cases

This text of 573 A.2d 599 (Commonwealth v. Ousley) 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. Ousley, 573 A.2d 599, 392 Pa. Super. 549, 1990 Pa. Super. LEXIS 889 (Pa. 1990).

Opinions

ROWLEY, Judge:

This is an appeal by David Ousley from a judgment of sentence of two to ten years imprisonment imposed following appellant’s guilty plea to attempted burglary. The only issue raised on appeal concerns the discretionary aspects of sentencing. We deny appellant’s petition for permission to appeal.

Appellant’s Rule 2119(f) Statement asserts that there is a substantial question that his two to ten year sentence contravenes the Sentencing Code 1) because the court relied upon matters (unspecified) not properly before it at sentencing, and 2) because “said sentence is not only beyond the standard range of the sentence guidelines, but is also well beyond the aggravated range of the guidelines applicable for appellant and is not specifically tailored to the nature of the offense, the ends of justice and society and the rehabilitative needs of the appellant.” (Appellant’s brief at 5.)

[552]*552The first of these reasons cannot be relied upon to support the petition for permission to appeal because it was not raised in appellant’s motion to modify sentence and therefore has been waived. Pa.R.Crim.P. 1410; Commonwealth v. Dorman, 377 Pa.Super. 419, 547 A.2d 757 (1988). Even if the issue were not waived, however, it would warrant no relief because appellant has totally failed to articulate in his 2119(f) statement any factors which the trial court relied upon which allegedly were not before it. See Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989).

The second reason advanced by appellant to support his petition for permission to appeal fails to raise a substantial question. To determine whether or not to grant permission to appeal from the discretionary aspects of sentencing, there must be a substantial question that the sentence is not appropriate under the “entire Sentencing Code.” 42 Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Although it is correct that the sentencing court must consider the applicable guidelines, Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987), they are only one factor of many which the sentencing court must consider. To determine whether there is a substantial question warranting permission to appeal from the discretionary aspects of sentencing, we must ascertain if the Sentencing Code as a whole has been compromised.

In Williams, supra, the court found that appellant had failed to raise a substantial question in her 2119(f) statement where the statement did not include any “specific, articulable reasons why her sentence raises doubts that the sentencing scheme as a whole has been compromised.” Id., 386 Pa.Super. at 326, 562 A.2d at 1388.

In the instant case, appellant’s statement asserts no specific, articulable reasons why his sentence compromises the sentencing code. On the contrary, appellant’s statement includes only the bald averment that the sentence [553]*553exceeds the guidelines and the conclusion which he would like us to reach: that the sentence “is not specifically tailored to the nature of the offense, the ends of justice and society and the rehabilitative needs of the appellant.” Appellant has failed to advise us, either in his 2119(f) statement or anywhere else in his brief on appeal, what the applicable guideline range is, and he has articulated absolutely no facts to support the conclusion that the sentence is not appropriately tailored to the crime, his needs, and society’s needs. The Supreme Court in Tuladziecki, and the Superior Court in the cases decided thereafter, e.g., Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115 (1987), Williams, supra, have made it clear that appeals from the discretionary aspects of sentencing are not to be granted as a matter of course, but are to be granted only in exceptional cases where it can be shown in the 2119(f) statement that despite the “multitude of factors impinging on the sentencing decision,” the sentence imposed contravenes the sentencing code. Tuladziecki, supra, 513 Pa. at 513, 522 A.2d at 20. Because appellant has failed to articulate any specific reasons why his case is one of those extraordinary ones in which we should grant review, we find that he has failed to raise a substantial question.

In addition, Appellant’s conclusory assertion in the 2119(f) statement that the sentence exceeded the guidelines, without more, does not raise a substantial question. The statute provides that although the trial court must consider the guidelines, the trial court is free to sentence a defendant outside the guidelines, and the only limitation on such an exercise of the sentencing court’s discretion is that the court include a statement of reasons why it is deviating from the guidelines. 42 Pa.C.S. § 9721(b). Thus, the mere fact that a person is sentenced outside the guidelines, without any suggestion of how much the sentence imposed exceeded the guidelines, without any averment that the trial court failed to state any reasons for going outside the guidelines, and without any assertion that the court relied upon any inappropriate reasons for sentencing outside the [554]*554guidelines, does not raise a substantial question that the sentencing code has been compromised because the sentencing court is authorized to sentence outside the guidelines.

The Dissent’s assertion that “[t]he contention that the judge exceeded the applicable guideline recommendation raises a substantial question justifying the use of our discretionary appellate jurisdiction” appears to create a bright line test for determining when a substantial question has been asserted. No authority which has been cited to us establishes such a clear bench mark for establishing a substantial question, and the cases relied upon by the dissent do not support the conclusion that the mere averment of a sentence outside the guidelines, without more, raises a substantial question.

In Commonwealth v. Sanchez, 372 Pa.Super. 369, 539 A.2d 840 (1988) (en banc), aff'd. per curiam, 522 Pa. 153, 560 A.2d 148 (1989), relied upon by the Dissent, appellant received a total sentence of ten to twenty-five years imprisonment. He sought review of the discretionary aspects of his sentence because the trial court had failed to state appropriate reasons for deviating from the guidelines and because the sentence allegedly was so harsh inasmuch as it was nearly twice as long as the maximum minimum sentence under the guidelines (five years, seven months). The Court concluded that “under these circumstances,” appellant had raised a substantial question. Id., 372 Pa.Superior Ct. at 372, 539 A.2d at 841.

Commonwealth v. Burdge, 386 Pa.Super. 194, 562 A.2d 864 (1989), which the Dissent also relies upon, fails to support the conclusion that the mere “contention that the judge exceeded the applicable guideline recommendation raises a substantial question.” In Burdge,

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Commonwealth v. Ousley
573 A.2d 599 (Supreme Court of Pennsylvania, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
573 A.2d 599, 392 Pa. Super. 549, 1990 Pa. Super. LEXIS 889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-ousley-pa-1990.