Commonwealth v. Thomas

483 A.2d 974, 335 Pa. Super. 99, 1984 Pa. Super. LEXIS 6537
Superior Court of Pennsylvania·Decided November 2, 1984·No. No. 03187·Published·Cited by 4 cases

Opinion

POPOVICH, Judge:

This is an appeal by appellant, Thomas K. Thomas, from a judgment of sentence of 10 to 20 years’ imprisonment entered following a plea of nolo contendere to rape. This is the maximum sentence permitted by 18 Pa.C.S.A. § 3121, 18 Pa.C.S.A. § 1103.

Appellant was charged with kidnapping, rape and related crimes arising from an incident which took place on July 1, 1983. On that day, the victim, responding to a request from one of appellant’s friends, agreed to give appellant a ride. He subsequently abducted and raped her in a wooded area on the Appalachia Trail in Monroe County in the presence of her 10-week old son. He then bound, gagged and blindfolded her and left her lying naked at this distant outpost. After appellant, departed, the victim, still bound, was forced to leave her son and walk a distance of approximately five miles before she was able to secure help.

On September 14, 1983, appellant entered his pleas of nolo contendere to the charges of rape and kidnapping. On October 31, 1983, he was sentenced to a term of five to ten years’ incarceration on the kidnapping charge to be served consecutively with the sentence which is the subject [103] of this appeal. This appeal follows denial, after a hearing, of appellant’s motion for reconsideration.1 We affirm.

Appellant herein raises three issues for our consideration. First, he argues that the lower court erred in imposing a sentence in excess of the aggravated minimum range of the Pennsylvania Sentencing Guidelines.

It is true that the lower court imposed a sentence in excess of the minimum aggravated range for an offense with a gravity offense score of “9”; however, the court provided its reasons for so doing. 204 Pa.Code 303.1(h), 42 Pa.C.S.A. § 9721 et seq., effective July 22, 1982, provides

In every case where the court imposes a sentence outside the sentencing guidelines, the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from this chapter.

The court listed the following reasons in the departure report:

The facts of this case show that the Defendant acted in an extremely brutal and calculating fashion in raping the victim in that:
1. The Defendant committed this act against a woman who had gone out of her way to befriend him;
2. The Defendant forced the woman into submission by exercising threats of physical violence against her ten-week-old child;
3. After committing the rape, Defendant jbound [sic] and gagged the victim while she was completely naked and left her in that condition in a remote part of the county as to virtually insure that she would not be found, thereby imperiling her life and the life of her ten-week-old child;
4. The victim, after she was fortunate enough to extricate the bindings from her feet, walked five miles through the woods, bound and gagged, before she was able to obtain assistance. During that time, the ten-[104] week-old child was left in the woods because the victim was unable to extricate her hands from the bindings to take the child with her;
5. Defendant, in 1982, assaulted another woman with her young child in the Borough of Stroudsburg. Although the assault was foiled by a passer-by, the circumstances bear a degree of similarity to this case;
6. The Defendant has shown no remorse for his actions; and
7. The Defendant appears to have a violent nature.

Adequate reasons for the departure were supplied, and we hold that the lower court was justified in so sentencing appellant. Commonwealth v. Gunderman, 268 Pa.Super. 142, 407 A.2d 870 (1979). A more heinous and appalling crime would be difficult to imagine; only through fortuitous circumstances were the victim and her baby spared their lives.

Moreover, the sentencing court extensively and completely recorded its reasons for the imposition of sentence. Commonwealth v. Mead, 300 Pa.Super. 510, 446 A.2d 971 (1982). The judge’s statement, read as a whole, disclosed that proper weight was accorded to the particular circumstances of the offense and the character of the defendant. Commonwealth v. Gunderman, supra. The sentencing judge fulfilled his responsibilities under the Code. Commonwealth v. Doyle, 275 Pa.Super. 373, 418 A.2d 1336 (1981).

Appellant next contends that' the sentencing judge’s statement of reasons for departure from the aggravated minimum was insufficient in that it failed to explain why a sentence within the aggravated minimum was not sufficient. By so setting forth reasons justifying departure, the Court was, in effect, attempting to elucidate its rationale therefor. For the reasons stated therein and for the reasons set forth at sentencing, the trial judge was implicitly stating why the aggravated minimum was insufficient. The imposition of a proper sentence under the Sentencing Code is a matter vested in the sound discretion of [105] the trial court, whose determination must be respected unless it is an abuse of discretion. Commonwealth v. Knight, 479 Pa. 209, 212-213, 387 A.2d 1297, 1299 (1978). We find no abuse of discretion.

Finally, appellant contends that the lower court considered as a prior conviction an offense to which the defendant pled guilty but for which he had not yet been sentenced.2

Appellant argues herein that the sentencing court improperly considered a prior conviction for which he had not yet been sentenced but to which he had pled guilty. This claim is meritless.

In reviewing the imposition of sentence, this court should ordinarily defer to the trial court which was better able to weigh the various considerations and should not replace the trial court’s judgment with its own unless the sentence demonstrates that the sentencing court clearly abused its discretion. Commonwealth v. Long, 310 Pa.Super. 339, 456 A.2d 641 (1983), Commonwealth v. Brown, 314 Pa.Super. 311, 460 A.2d 1155 (1983).

Although the Sentencing Guidelines do not permit consideration of a conviction for which sentence has not been imposed in computing a previous record score, such a consideration is proper as it relates to a defendant’s character.

For scoring purposes, a “prior conviction” is defined as a case in which a verdict of guilty has been entered in the record and sentence has been imposed for an offense which occurred prior to the date of the current offense, notwithstanding any appeal taken on the prior offense.

204 Pa.Code. § 303.7(g), 42 Pa.C.S.A. § 9721 et seq., effective July 22, 1982. (Emphasis added)

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Commonwealth v. Thomas, 483 A.2d 974, 335 Pa. Super. 99, 1984 Pa. Super. LEXIS 6537 (Pa. Ct. App. 1984).

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