*3 WATKINS, KELLY, JJ. Before POPOVICH KELLY, Judge: Darden, ap- for allowance of Darryl petitions
Appellant, grant aspects sentence. We peal from judgment affirm sentence. appeal and allowance and four other Tuesday, February On *4 Minnie seventy-year-old men and robbed young surrounded to a restaurant attempting as she was enter Darling, robbery, During the course Philadelphia. downtown the door of restaurant through was thrown the victim his Appellant companions and pavement. onto the attempted to flee with the wallet they as apprehended were purse. from taken the victim’s 5, 1986, open of no plea entered an August On contendré) robbery conspir- (nolo charges of contest to acy comprehensive after a colloquy during which it was plea explained of no correctly contest conten- {nolo dré) “has the same effect as a guilty plea if Judge (N.T. 7); it.” 8/5/86 at accepts see Commonwealth v. 521, 523, 369 A.2d Hayes, On 14, 1986, appellant was October sentenced to a term of of three and to imprisonment imprison- one-half seven years ment on the robbery conviction and a consecutive seven year probation term of on the conspiracy conviction. No motion to plea withdraw the was filed. A motion to vacate and/or modify sentence was filed and denied. no- Timely appeal tice of was filed on October 1986. The case is now properly before this Court for disposition. grant We appeal allowance of and affirm.
I. Appellant’s sole contention appeal on is that the sentence imposed on the robbery conviction was an unreasonably harsh deviation sentencing from the guidelines the mini- mum imposed sentence highest more than twice the recommended minimum aggravated range of the applicable guidelines. 2, 5-6). Brief (Appellant’s at This challenge is a of the discretionary aspects of sentence. law, Pennsylvania
Under neither the defendant nor the Commonwealth take an may appeal right as of aspects Rather, sentence. defendant “[t]he or the may file a petition for allowance of appeal of the discretionary aspects sentence for a felony or a misdemeanor to the appellate court that initial has jurisdiction appeals. such appeal Allowance of bemay granted at the discretion of the appellate court where it appears that there is a question that the sen tence imposed is not appropriate Sentencing under [the 9781(b). Supreme Our Court indi Code].” Tuladziecki, cated Commonwealth v. Pa. (1987),
A.2d 17 that three distinct must be taken to steps properly raise a challenge discretionary aspects sentence: there must a timely appeal notice of {see
602 903); Note; challenge the must 902 Pa.R.A.P. Pa.R.A.P. & (see questions presented in statement of set forth and, 2116(b)); must include in the appéllant Pa.R.A.P. of brief, argument support immediately preceding of the a concise statement challenge, separate, 9781(c)(see 42 Pa.R. under appeal of allowance 2119(f)). A.2d at A.P. 18-19. case, filed appeal notice of timely
In the instant of aspects challenge to the appellant’s in questions of set forth in the statement sentence was does 2). Brief at brief (See Appellant’s Appellant’s volved. to pursuant Pa.R. separate, a concise statement not contain as 2119(f) by heading a such separately delineated A.P. for Al of Reasons Question” or “Statement “Substantial “Summary Nonetheless, though the Appeal.” lowance of comply not with appellant’s brief does Argument” 2119(f), find that it offers substantial of Pa.R.A.P. we letter sufficient) permit rule to (therefore, compliance with the question” as whether a “substantial limited review to Muller, raised. Cf n. A.2d 193 & n. 350 & that: Argument” alleges Appellant’s “Summary degree third robbery was convicted Appellant presence court had noted the felony. If the lower factors, a sentence in aggravating additional specific How might permissible. have range been aggravated any to such ever, only place failed the lower court (other criminal appellant’s than on the record findings prior already accounted for history, which was score) proceeded it also to sentence but record (3lh imprisonment maximum amount of statutory incarceration). more than The sentence was years 7to aggra by sentence recommended highest double (12 range impris to months sentencing guideline vated sentencing guideline onment). This departure the sentence renders degree to such range for resen unreasonable, a remand requires and therefore tencing. 5). (Emphasis Brief at
(Appellant’s supplied). Succinctly, *6 contends he appellant that was sentenced outside the guide-
lines and that the sentence is imposed unreasonable be- cause: no aggravating noted; sufficient factors were appel- lant’s prior history criminal was considered as an aggravat- ing circumstance though even it was already accounted score; and, in the prior record the deviation was so substan- tial to render the sentence unreasonable.
In
Tuladziecki,
our
supra,
Supreme
Court made it
our
clear that
determination
as whether
question was presented
substantial
be
sepa-
to made
rate
any
and distinct from
of
review
the merits of the
petition.
Allowance of appeal be may granted at the discretion of where appellate appears court it that there is a question substantial that imposed the sentence appropriate under chapter. this 9781(b). added). Thus, Pa.C.S.A. (Emphasis while the § of
appearance a. question substantial under 9781(b) appeal determines whether allowance of may granted, the sound discretion of this Court shall determine whether granted. it will be
In exercising course, this discretion we of may, look to the trial court opinion and/or the record. When the set allegations forth in the separate, concise statement contain appeal are or unsupported for allowance record, from the face of the apparent omissions material appear- appeal despite may deny allowance this un- appellant’s question upon based ance Although there are misleading allegations. founded or from face of apparent factual omissions variances and. case, our nonetheless exercise in the instant we the record appeal in order to address grant allowance of discretion to legal presented. significant issues II. imposed was an the sentence contends Appellant argues guidelines. He deviation unreasonable deviation; for the were stated grounds insufficient that: *7 given weight; has undue history his criminal been that as to be unreasonable. was so substantial that deviation seriatim. each argument We address agree. cannot We A. of for that the statement argues Appellant is The court guidelines inadequate. outside the sentencing of reasons for the sentence following statements made to imposition argument prior of counsel and after imposed sentence: report presentence THE I have reviewed the COURT: concerning the defend- evaluation the mental health made by into consideration statements ant and taken as as counsel well counsel for defense. report presentence of the defendant’s
A careful review
eight
had
arrests and
as
he
juvenile
indicates that
an adult
commitments. As
along with four
adjudications,
three
arrests,
five convictions and
has 12
already
he
commitments,
probation
his
number
and violated
go beyond
that reason the Court will
times. For
sentence.
Guideline
recommended
brief,
find
state-
5-6).
we
this
Though
at
(N.T. 10/14/86
Common-
requirements
to fulfill the
adequate
ment
(1977)
wealth v. Riggins, 474 Pa.
378 A.2d and 42
9721(b).
Osborn,
Commonwealth v.
Cf.
The defendant argued in his motion for reconsideration of aggravated guideline range for the offense was a minimum of imprisonment term of 12 to 18 months and that this Court abused its discretion ex- ceeding guidelines. those
This Court concluded that the background and character- istics of this defendant justified' departure form [sic] the sentencing guidelines.
The prior defendant’s record score of ‘3’ does not reflect the true extent of the defendant’s criminality and need for appropriate punishment. defendant only .The years of age, yet has has accumulated a record of [sic] fifteen eight arrests and adjudications as a juvenile. As adult, an in less than a three year period, he has been arrested twelve times and has had five convictions. The present case involved the of a robbery old year woman who was thrown to the pavement by the defend- ant and four others. The defendant has consistently relied his upon criminal activities as his means of support and to support a daily drug habit. The presentence report accurately describes the defendant being, since thirteen, age ‘a one man crime spree based on his record of twenty seven arrests and thirteen convictions’ *8 and that his numerous commitments have not deterred him from a life of crime ... despite opportunities ... for rehabilitation ... ’. The report also notes that the defend- ant has refused to take any action to improve his edu- cation, vocational or skills, employment but has instead chosen a life of crime.
For these reasons the imposed necessary was and appropriate. Opinion
Trial Court at 1-2. This amplification of the trial court’s reasons for the deviation should dispel any doubts as to the adequacy of the statements of the reasons for
606 It is a clear and concise
deviating guidelines. in instant statement of each of the relevant factors the case.
B. it his improper to cite Appellant argues it already as an factor as was history aggravating criminal in It is that a for record score. true prior accounted his mini mitigated court not sentence the sentencing should the range, mum the minimum or outside range, aggravated al ranges solely upon based criterion applicable guideline guidelines. ready incorporated into See Common 314, 14, Stevens, 310, Pa.Super. 503 A.2d wealth However, that a record readily apparent prior it is did begin appellant’s score of three not to account staggering activity. record of criminal misdemeanors, juvenile adult appellant’s prior
None violations, or felony and adjudications, parole probation in the incorporated computation arrests were unexpunged Nevertheless, “[pjrior of the record connec- prior score.1 nature, tions with law enforcement authorities of whatever scruti- among are circumstances to be unquestionably appropriate nized” in sentence. See Com- determining 338, 341-42, 491 Pa.Super. Lupatsky, monwealth v. Scheinert, 845, (1985); A.2d see also Commonwealth v. (1986) 431-32, (Kelly, 519 A.2d J., J., accept- ARD Cavanaugh, (prior concurring; joins) ances, arrests, may by acquittals arrests followed even sentencing hearings at subsequent be considered properly factors). When factors sentencing relevant aggravating computation into the incorporated have not been it that such range, necessarily minimum follows standard justify considered as factors to a sentence may factors minimum range, aggravated mitigated minimum range, guideline ranges. or outside the See Common- juvenile adjudications and certain misdemeanor convictions Prior score, computation prior but are included record now sentencing in instant 204 Pa.Code were at the time of case. (effective (b) 1986). 303.7(a) June §§
607 342, Pa.Superior v. 341 Ct. at 491 Lupatsky, supra, wealth 847; Pa.Super. A.2d at 357 Washington, 567-68, 397, (1986) J., 548, dissenting). (Kelly, 516 A.2d 407 unincorporated record of criminal Collectively, appellant’s factor. significant aggravating conduct constitutes a facts re reasoning, the same it follows that By offense, the nature and circumstances of an which garding appel are not elements of the offense for which necessary convicted, proper, lant has been are also factors to be whether to sentence in the deciding mitigated considered or range, aggravated range, minimum minimum outside case, In the guidelines. age instant victim an element of the crime of robbery; consequently, not fact that and his chose to victimize a accomplices (cid:127) seventy-year-old properly defenseless female was con as a aggravating sidered substantial factor. Certain children of against years crimes tender or senior citizens have for designated special mandatory sentencing; been if against years most not all other crimes children of tender or senior citizens should be considered as offenses accompa by aggravating nied factor. Cf. properly 9718. The court did so in the instant
§§ case.
C. contends that the Finally, appellant sentence is unreason- because it is a substantial deviation from the applicable able guidelines. Appellant heavily upon relies this Court’s dic- “only exceptional tum cases and sufficient may guidelines.” a court deviate from the Com- Fluellan, 167, 171, Pa.Super. 497 A.2d monwealth v. Hutchinson, (1985),quoting Commonwealth v. 596, 598, (Emphasis 495 A.2d The of reliance on the supplied). efficacy dictum silentio, if our substantially destroyed, by eroded sub Supreme Court’s decision Commonwealth v. Tulad- ziecki, supra. *10 Tuladziecki,
In v. our supra, Commonwealth Su length at the discretion vested preme Court reviewed broad “gener regarding application in the court the sentencing Code, in the and the final espoused Sentencing principles” al 1, the Pa. at 514 & n. 522 options. selection of sanction then Supreme at 20 & n. 1. Our concluded: A.2d legislature has vested broad discre- apparent It is that the impose appropriate in the trial court to a sentence to tion apparent it. each case which comes before It is also that legislature thorough, though not ex provided the has haustive, to focus the court’s outline of considerations is choosing appropriate in an sentence. It deliberations particu awhy where can articulate reasons only party doubts that this scheme as a whole lar raises appellate court should compromised has been in which trial court exercised its review manner discretion. Tuladziecki, Pa. at supra, v.
Commonwealth added). Thus, sentencing A.2d at 20. (Emphasis while guidelines, required applicable is to “consider” the court applicable any and while the reasons deviation range guidelines explained of the must be standard the sentence “not writing, the determination whether unreasonable,” or “unreasonable” “clearly appropriate,” Sentencing to Code must be made with reference as a of the whole, provisions not reference to the solely with Tuladziecki, guidelines. su- sentencing 20; Pa. 522 A.2d at also at see pra, 9781(b) (c). and §§
III. above, unincorporated indicated extensive appellant’s As of a defense- appellant’s victimization history criminal aggravating woman were seventy-year-old less criminal record that if the unincorporated factors. We note pursuant score to prior included in the record were have a prior now would applicable,2 provisions (effective 1986). 303.7(b) 2. See 204 Pa.Code § June six, five, record an score offense score of gravity appellant’s minimum sentence of three and years one-half (42 months) would fall the applicable aggravated within (36-45 months). range minimum guidelines While these do case, apply they clearly to instant demonstrate attempt of the give proper reasonableness trial court’s weight to factors which were not significant incorporated guideline ranges applicable sentencing at the time Thus, this case. we find no abuse of discretion trial by the court.
CONCLUSION *11 Based the upon foregoing, judgment of af- sentence is agree firmed. We with the and trial the court, high it is time this youthful career criminal serves a substantial sentence of incarceration.
POPOVICH, J., files a dissenting opinion.
POPOVICH, Judge, dissenting:
Consistent with
position espoused by
the
this
in
writer
Hawthorne,
Pa.Super. 125,
Commonwealth v.
A.2d
(1987),
JJ.,
in
joined
Watkins,
and
I
by Montemuro and
cannot endorse the Majority’s receptive embrace
the
of
appellant’s appeal regarding his
of
challenge
the discretion-
ary aspects of his sentence. Accord Commonwealth v.
Bogden,
Pa.
Nonetheless, the appellants’ failure in both Hawthorne to set in separate (“some- Tuladziecki down a section where”) in the brief a concise statement of why reasons their appeals fatal, should granted be and this flaw could not be remedied by “argument reference to the the on running afoul of the Rules section without
merits” 9781(b). and 42 Appellate Procedure Pa.C.S. doing exactly is what Tuladziecki Majority the
Instantly, i.e., separate absence of a section filling against, ruled reciting a “concise state- in an brief appellant’s somewhere assailing the dis- question” ment of reasons”/“substantial by looking to the of one’s sentence aspects cretionary void, or, is fill the section to “argument on the merits” I bar, section. “summary argument” the case at at latter instead resort is had to the no whether see distinction read to condemn both. the former. I Tuladziecki or “argument on the merits” to either the Reference aof determining presence “summary argument” imposed question” that sentence “substantial to Sentencing cannot be utilized Code appropriate under calling of the language the clear Tuladziecki circumvent proce- rules of applicable with “precise” compliance at As much was stated Pa. 522 A.2d dure. 513 at Hawthorne; this to-wit: by require appear would Majority The Tuladziecki defendant) (be ap- or it the Commonwealth party to set aspects of pealing immediately (preferably, some in his brief point” forth “at merits) (“state- on the preceding argument This is ment”) granted. an consist- why appeal should *12 Proce- Appellate the Rules of by ent with the treatment allow- “petition of as a for Appeal one’s Notice dure of (see to Note Sentencing under the Code appeal” ance of 9781(b)),which, in ef- 902 and Pa.C.S. Pa.R.App.P. § fect, petition a for allow- of defers the formal submission Tuladziecki, stage. briefing until the appeal ance of supra. view briefing stage, given at Tuladziecki’s
Once
the
we deem
“petition”,
the
of a
equivalent
“Notice” is
that a
di-
some
Pa.R.App.P.
it
to look to
advisable
take
should
to
form and content one’s brief
rection as
the
discretionary
of
aspects
appeal
in
an
perfecting
that
requires
example, Pa.R.App.P.
For
a sentence.
information,
petitioner
the
list various items of
one of
upon
which is a “concise
of the
relied
statement
reasons
1115(a)(5).
of
appeal.”
for allowance
an
Rule
The order
to
petition (which,
in which it is
be
in the
instant-
included
brief)
recommended,
would be one’s
ly,
insofar as
practicable, to
in the
which
in
sequence
be
the
appears
Rule. This has
interpreted by
Supreme
been
the
Court as
requiring
presentment
the
and examination of such a
statement
point”
of
“at some
in this procedural
maze,
always “prior
ruling
but
to examination of
on
the merits of the issue
appropriateness
of the
of the
n I read require setting Tuladziecki to “some- forth where” in appellate one’s brief “concise statement reasons”, 9781(b), sufficient to satisfy questioning aspects issued, of the certainly but not under guise “summary of the section argument” can say one that this precedent condition has been satisfied *13 in the wake Tuladziecki. Court’s Supreme with our compliance no being
There briefing, appellate detailing rigors pronouncement assaulting in the area of precision met with must be which sentence, I quash would aspects of one’s Hawthorne, Majority supra. Because See appeal. respectfully I must contrary, hold to the proper it deems dissent. A.2d 1152 By S. LAKE Hamilton
LOOMIS ASSOCIATION HUGHES, Trustee ad Litem SMITH, Jr., Smith, wife, Floyd his and Reva C. Cases). (Two Appellants Pennsylvania.
Superior Argued April 1987.
Filed Oct.