*3 BECK, Before HOFFMAN, POPOVICH and JJ. HOFFMAN, Judge:
This appeal is from judgment of sentence imposed following appellant’s plea guilty to charges rape, involun- tary intercourse, deviate sexual and possessing instruments Appellant crime. contends that the sentence imposed was an abuse discretion because it was harsh and exces- sive under the addition, circumstances. he contends that sentencing counsel was failing ineffective for to object imposition of a mandatory pursuant sentence (2) object C.S.A. and the prosecutor’s erroneous computation of the sentencing guideline ranges. For follow, reasons that we disallow the as to appeal appellant’s claim, and we the judgment vacate and sentence remand for an evidentiary hearing on ineffec- tiveness claims. procedural relevant facts aptly have been summa- below,
rized the court follows: evening On the raped December Defendant involuntary committed deviate sexual intercourse two in the separate city women Chester. attacks similar, were separate but not related. Two sets of criminal informations resulted from the attacks. Both *4 were at point. attacks knife both instances Defendant the the street into an dragged women off abandoned p.m. One at 9:45 and the other building. attack occurred approximately p.m. 11:00 occurred 11, by a February 1988 Defendant was convicted On (Informa- to the attack. of the crimes related jury 13, 8988-86.) 1988 Defendant September tion No. On for imprisonment term aggregate was sentenced to an of (7V2) and attack of less than seven one-half the first not (15) filed nor more than fifteen Defendant years years. case sentence in that was appeal. judgment an 31, (See: on July the Court Superior affirmed 198[9]. 1988.) Philadelphia No. On April instant involves the second attack. case 1989, sepa- to three
4, pleas guilty Defendant entered informations related to the second attack. criminal rate rape, involun- charged appellant informations with [The intercourse, and instru- possessing deviate sexual tary pleas that the guilty At time were ments crime.] entered, the on notice of the fact that the Defendant was proceed mandatory intended to under the 9714 related to sentencing provisions 42 Pa. C.S.A. § offenses. subsequent second 10, was for the April On 1989 Defendant sentenced the second attack. The sentences were crimes related to to the designated consecutively imposed run sentences 8988-86, i.e., imposed Sep- Information Nos. those on on 13, aggre- 1988 related to the first attack. tember [The charges on ten-to-twen- gate imposed sentence these was 18, imprisonment.] April On 1989 Defendant ty years For A Modify/Motion a Motion To Reconsideration. filed 15, on Motion hearing May was scheduled vacating an was entered April Order On April 1989. This order was on imposed sentences retain jurisdiction entered so that the Court would over could held. hearing matter until At actually hearing, which was held conclusion a total Defendant resentenced to term May (7V2) not than seven and one-half imprisonment less years years. nor more than fifteen The sentences again designated consecutively run the sen- were No. On May tences under Information 8988-86. Modify/Mo- filed To Defendant another Motion alia, For Motion inter alleged, tion Reconsideration. This May that the reasons for the Court’s sentence on a hearing were unclear. On June was held on hearing this Motion. At the restated Court the rea- *5 sons for its sentence and the Motion was denied. This appeal followed.
Trial Opinion (footnotes Court at 1-8 omitted).
Appellant first contends that the imposed sentence by the court was an of abuse discretion it because was harsh and excessive under circumstances. Appellant’s complies requirements brief with 2119(f) Pa.R.A.P. Tuladziecki, and in it that contains a statement the reasons relied for upon allowance of appeal from the discretionary aspects sentencing. However, after close review this statement, we find that the claim does present not a sub stantial question that the imposed sentence was inappropri ate under the Sentencing Code as a whole. See Common Tuladziecki, wealth v. supra; 9781(b). Pa.C.S.A. of appellant’s 2119(f) bulk statement is argu devoted to an ment that sentence an was abuse discretion because it the sentencing guidelines. However, exceeded did not include specific this claim in his “Statement of Questions Involved,” and there is point no discussion of this argument Thus, in the of appellant’s section brief. we appeal cannot an point. allow other only 2119(f) claim identified in the argument statement is an that the sentences in inappropriate light mitigat were of certain ing Specifically, appellant argues factors. that: excessive sentences were in grossly spite
[t]hese
(1)
of the fact that
the crimes
evening
committed on
question
first significant
constituted Petitioner’s
contact
authorities;
(2) he
with the criminal
showed remorse for
crime;
pleaded
spare
in order
guilty
his
... he
testifying again
the ordeal of
court.
victim
Appellant
allege
Brief
does not
that the
Appellant
for
unaware these
circum-
sentencing
mitigating
court
was
did not
Instead, merely suggests
he
that the court
stances.
claim,
This
weigh
type
these factors.
properly
of the
our
simply
judgment
asks us to substitute
court,
present
question
does not
substantial
inappropriate
Sentencing
under
sentence
Tuladziecki,
a whole. See Commonwealth
Code as
*6
515,
20;
v.
Pa. at
522 A.2d at
Commonwealth
513
supra,
(1989);
476, 481,
165, 168
563 A.2d
Pa.Super.
386
Rogers,
A.2d
Billett,
Pa.Super.
535
v.
370
Commonwealth
1182,
(1988).
ap-
must disallow the
Accordingly,
1185
we
See,
sentencing.
e.g.,
of
discretionary aspects
from the
peal
Tuladziecki, supra.
v.
Commonwealth
concern the al
two claims
remaining
Appellant’s
Although these
of his
counsel.
ineffectiveness
leged
below,
is
appellant
in the court
now
not raised
claims were
counsel, and,
present counsel
because
by new
represented
opportunity
at the first
ineffectiveness claims
raised the
has
counsel,
by trial
longer represented
nowas
appellant
when
See,
Com
appeal.
e.g.,
direct
consider them on
may
we
397,
3,
Holmes,
97, 105 n.
393 A.2d
482 Pa.
v.
monwealth
506
(1978);
DeGeorge,
v.
n. 3
see also Commonwealth
401
Counsel,
course,
(1984).
445,
A.2d 1089
485
effective,
demonstrating
to
and the burden
presumed
See,
Common
appellant.
e.g.,
rests
ineffectiveness
(1987);
Pierce,
153,
(a) Mandatory sentence.—Any person who is convict ed in any court of this Commonwealth of murder of the degree, third voluntary manslaughter, rape, involuntary deviate sexual intercourse, arson as defined in 18 Pa.C.S. 3301(a) (relating to arson offenses), related kidnap ping or robbery defined in 18 Pa. 3701(a)(1)(i), C.S. § (ii), (iii) or (relating robbery), or attempt commit any crimes, these or iswho aggravated convicted of assault *7 in which the offender intentionally, or reck knowingly lessly causes serious bodily injury to another under cir cumstances manifesting extreme indifference to the value life, shall, of human if they previously have been convict ed of a crime of violence specified as in (b), subsection be sentenced to a minimum sentence at least years five total notwithstanding any confinement provision other this title other or statute to the contrary.
(b) Prior convictions for crimes of violence.—For purposes (a), an subsection offender shall be deemed to prior have convictions crimes violence if both following conditions hold:
(1) The offender was in previously convicted this or any Commonwealth other state or the District of murder, or in any Columbia Federal court of voluntary manslaughter, rape, involuntary deviate sexual inter course, robbery 3701(a)(1)(i), defined in 18 as Pa.C.S. § (ii), (iii), or in 3301(a), arson as defined 18 Pa. C.S. § kidnapping aggravated or assault in which the offender or intentionally, knowingly recklessly causes serious bodily to another under circumstances manifest- injury event, (1988)). underlying sentencing any A.2d claims by appellant, proper interpretation raised which concern the of recidi- legislation, question vist that the sentence offender raise substantial imposed inappropriate. Eyster, was See Commonwealth v. 401 Pa.Su- banc). (1991) (en per. life, an to the value of human ing extreme indifference laws of the crime under the equivalent (relating date of the effective Title in effect offenses) equivalent or an crime in anoth- to crimes conviction need not be for previous er jurisdiction. as the instant offense for section crime the same applicable. be previous conviction occurred within seven of the date of the commission of the instant
years offense, during time the offender except any which or other any penitentiary, prison incarcerated in computing shall not be included place of detention other period. Convictions for seven-year the relevant arising episode from the same criminal offenses previous offense shall not be considered convic- instant con- previous for the of this section. A purpose tions conviction, include or not any viction shall whether litigation pending concerning that conviction. Thus, that a minimum requires mandatory Id.2 § imprisonment sentence of on recidi- years five perpetrators vist certain enumerated violent crimes. inappli- that the enhancement is Appellant argues above rape previous cable because his first conviction was not a contemplated Appellant recognizes conviction as the first conviction resulted from criminal conduct (albeit hour) preceded little over an the criminal *8 in charges argues, conduct that led to the this case.3 He however, apply that the enhancement cannot because a Section 9714 was amended December to be effective in (b)(2) sixty days. only change was the substitution in sub-section phrase purposes previous of the of this section conviction shall "[f]or conviction, any judgment include whether or not of sentence has been phrase previous any or” for the conviction shall include “[a] conviction, id.., (Purdon Supp. whether or not.” See Historical Note 1990). Because the amendment did not take effect until after the committed, prior any crimes were it is the section that controls. In event, substantive, change, though disposi- the would not affect our tion. argues 3. We should note that nevertheless the two episode. light offenses constituted the same criminal In of our disposition infra, separate argument. we need not address this 258
conviction cannot a previous conviction for purposes 9714(b) unless the conviction for the § first offense occurs prior to the commission of the second offense. Although our research has no revealed cases directly on point, careful consideration cases interpreted that have provi- sions similar to 9714 and the principles that animate such recidivist provisions generally, convinces us that appellant’s position must be sustained.
This ago Court long articulated theory underlying legislation, habitual criminal as follows: It was not intended that the heavier penalty prescribed for the commission of a second offense should descend upon anyone, except the incorrigible one, who after being reproved, ‘still hardeneth his neck.’ If penal- the heavier violation____ ty prescribed for second is upon visited the one who has not had the reproof benefit of the of a conviction, then the purpose statute lost. Sutton, Pa.Super. 407, 413, 125 189 A. Commonwealth, (quoting Morgan v. 558 also, (1916)). e.g., See Common- Ky. S.W. 132 Eyster, wealth v. 477, 488-489, Pa.Super. Mourar, (1991)(en banc). (1986), vacated and re- A.2d 197 grounds,
manded on other a per curiam Court, Opinion this in seven joined by judges, history discussed in detail the and purpose of habit- ual offender statutes: long ago legislation least as as ad-
[A]t persistent dressed the offenders proper disposition of language imprecise contained as as [sentenc- ing] have statutes which guidelines, regulatory some (and penal multiple mandate sanctions violations their into case Con- way authority). which have found into the immediacy to the trial court’s inclusion trary case, in all of priority Pennsylvania concept priority statutes the cases recidivist interpreting commission preceding of a conviction lies its Turpack rel. Commonwealth ex enhanced. offense to be
259
Ashe,
Commonwealth
403,
(1940);
v.
15
A.2d 359
339
v.
Rouch
McDermott,
(1909);
v.
427
73 A.
v.
Commonwealth,
39 Am.Jur.2d one in this unwavering, only exception with stant and Vandemark, Commonwealth [see Pa.D. & (1948) ], extrapolated as well and can be C. 351 303.7(g) guidelines] from section [of statutory provisions. previous from 589-93, Id. (footnotes A.2d at 201-03 *10 260
omitted).4 See also Commonwealth v. Wolfe, 349 Pa.Su
415,
per.
503 A.2d
(1986),
435
allocatur granted, 514 Pa.
617, 521 A.2d
(1986),
932
appeal dismissed,
406,
517 Pa.
537
(1987).
A.2d 1370
Accord
Becker,
366
54,
Pa.Super.
64-65,
888,
530 A.2d
(1987)
893-94
(en banc),
denied,
allocatur
213
(table);
Kearns,
v.
Guidance on this point may be drawn from 42 Pa.C.S. 9714(b) designates a five-year § enhancement for perpetrators recidivist of certain enumerated violent crimes. Unless this section is read to provide not only a terminus a but quo also ad for quern prior offenses, it sense, makes no and when aligned with section 303.7(g) the sentencing guidelines], must require that [of convic- tion for the (enhancing) offense predate commission of the principal offense escape the imputation of a sophis- tic intent to both. 593-94, at Pa.Super. (footnote 504 A.2d at omitted).
See also Commonwealth v.
Wolfe, supra
Pa.Super. at
421-22,
Our does ineffective- hearing no evidentiary has been course, suggest holding, that the sentencer is not meant 5. This fashioning offense in its sen- cannot consider the fact “ connections, of whatever tence. As the Court noted: 'Prior Wolfe nature, among unquestionably authorities are with law enforcement ” sentencing].’ Pa.Super. 349 circumstances to be scrutinized [in 422, (quoting Lupatsky, A.2d at Commonwealth v. 341 503 439 338, 340, 845, (1985)). Pa.Super. 847 491 A.2d 262
ness claims. Accordingly, trial counsel has not had an opportunity explain whether his decision not to object to the application of 9714 had a reasonable basis designed to effectuate his client’s interests. See Commonwealth ex rel. Washington v. Maroney, 599, 605, 235 A.2d 349, (1967). 353 Although it is unlikely that a reasonable basis exists for particular inaction, “we must consider that possibility.” Commonwealth v. Gray, 339 385, 390, 489 A.2d (1985). circumstances, such rather than finding counsel ineffective now remanding for resentencing, the “better course” is to remand the case for an evidentiary hearing at which counsel will have an opportunity explain the reasons for the course chosen. See Commonwealth v. Spotts, 341 Pa.Super.
A.2d see also (1985); Turner, (1976); 365 A.2d Pursell, 403 Pa.Super. (plurality opinion per Wieand, J.); Commonwealth v. Gray, supra.
Appellant’s remaining ineffectiveness claim also con
cerns the
usage
rape
the first
conviction to enhance his
sentence. Specifically, appellant argues that counsel should
objected
have
when the prosecutor handed the
*12
court
guideline
sentence form on
appellant’s
prior
record score was calculated as a “3.” The “3” resulted
appellant’s
from
first rape conviction.
In
of the
light
au
above, appellant’s
thorities discussed
claim that
the first
rape
improperly
conviction was
included in calculating the
prior record score clearly possesses arguable merit. See
Eyster,
supra; Commonwealth v. Mou
rar, supra; Commonwealth v.
Wolfe, supra.
Com
however,
argues,
monwealth
that appellant
preju
was not
diced
the
by
Sentencing
erroneous calculation because the
in
Guidelines
effect at the time
committed the
Com
instant offenses
declared unconstitutional
in
were
Sessoms,
monwealth v.
(1987),
For the foregoing reasons, we disallow the appeal as to appellant’s claim, and we vacate the judgment sentence and remand for an evidentiary hearing on appel- lant’s claims of ineffective assistance of counsel. If counsel is found to have ineffective, been a new sentencing hearing must be held. If counsel is determined to have acted reasonably, however, sentence shall reimposed.
Appeal in part; disallowed judgment of sentence vacated and case remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.
POPOVICH, J., files a dissenting statement.
POPOVICH, Judge, dissenting: Having concluded that counsel’s actions prejudiced appel- lant at the time of I sentencing, would remand for resen- tencing.
I do not agree with the majority’s conclusion that an evidentiary is needed hearing to determine whether coun sel’s failure to to the object application of 42 Pa.C.S.A. 9714 and his failure to object improper calculation of appellant’s prior record score had reasonable bases de signed to effect interest. This jurist cannot imagine any reasonable basis for counsel to stand silent and permit a sentencing court to misapply sentencing stat utes guidelines in a manner clearly prejudicial his client. Undoubtedly, present facts, under the remand for an evidentiary hearing simply precious would be a waste of Schultz, resources. Cf., Commonwealth v. judicial (1984) (new 148 n. 4 trial granted hearing, rather than evidentiary where court finds counsel’s actions unsubstantiated and remand for evidentia time). ry hearing would be a waste of judicial I Consequently, respectfully opinion dissent from the since I majority conclude an evidentiary hearing *14 unnecessary, and case should be remanded for resen- tencing. 2d 774 A. Darryl
In the Interest of BOSKET. Appeal Pennsylvania. of COMMONWEALTH of
Superior Pennsylvania. Court of
Argued March 1991.
Filed May