*1 A.2d 134 Appellee, Pennsylvania, COMMONWEALTH KRUM, Appellant. Roy E. Pennsylvania.
Superior Court April Argued 2, 1987. Filed Nov. *2 Defender, Public Strouds- Sayer, K. Assistant
William for burg, appellant. Christine, Attorney, District East
E. David Assistant Com., appellee. Stroudsburg, BROSKY, Judge, and CIRILLO, President Before TAMILIA, MONTEMURO, BECK, WIEAND, ROWLEY, JOHNSON, JJ. POPOVICH WIEAND, Judge: charges of two guilty pleas entered Krum
Roy offenses, first adult Although these were burglary. sentencing court record. lengthy juvenile had a Krum years four of not less than sentences concurrent imposed it refused to which eight years, more than nor appeal, direct On for reconsideration. petition to a response “in are guidelines (1) argues Krum Sentencing Code law and the case Pennsylvania violation prior of a the effect distinguish between fail to they in that and a juvenile old year as a fifteen adjudication (2) constitut- adult”; that the sentences as conviction a prior Krum did not have of discretion because ed an abuse *3 record. adult in trial court the record
An examination of preserved issue has been the second only discloses trial not raised first issue was review. The to reconsid in the motion sentencing hearing or court at the first time It raised for the the sentence. was modify er and Appellant’s filed in this Court. had been after an reason contained as of sentence motion for reconsideration following: only therefor to reconsid- requests your Honorable Court
Defendant failed to the fact that the Court light sentence er the age young to the defendant’s consideration give sufficient to the defend- occurred and the time these incidents at the time of his a young juvenile ant’s status as The also not as a Court was juvenile. criminal activities cooperat- the defendant has of the extent to which aware charges. these since his arrest on the authorities ed with 3, Sentence. Modify Motion to Reconsider Par. sentencing issues which have established that is well in motion to sentence are waived. raised a not been 514
See: Commonwealth v.
Duffy,
217, 221,
Pa.Super.
491
Cottman,
Commonwealth v.
230,
(1985);
453, 461,
40,
Pa.Super.
(1984);
476 A.2d
Kuhn,
Pa.Super.
103,
(1984).
475 A.2d
sentencing guidelines
appellant
sought
The
issue
which
meritorious,
to raise in the instant
if
appeal, even
would not
render the sentence
illegal
the sense that
it could not be
Reardon,
Compare:
waived.
Pa.Su
193,
guaranteed § appeals, except such to hear jurisdiction The exclusive tion. cases, Court. Pa.C.S. capital vested right as of taken appeal may generally 742. Such court clerk of the lower appeal with the filing a notice by Pa.R.App.P. 902. appeal. for such the time allowed within as- challenging respect appeals With however, legislature provided sentencing, pects 9781(b) as follows: Pa.C.S. § (b) appeal.—The or the defendant Com- Allowance of appeal petition file a for allowance may monwealth felony of a sentence for a or discretionary aspects has initial juris- to the court that misdemeanor may be appeals. for such Allowance diction panel by of this Court been decided an en banc 1. This issue has now Tilghman, v. in Commonwealth (1987). Supreme Court to Appellant waived the issue which caused also Sessoms, nullify sentencing guidelines in failing preserve (1987). it waived it “at He Pa. Id., stages including any appeal.” adjudication up direct to and all quoting Commonwealth n. 516 Pa. Cabeza, A.2d at 782 at 368 n. 469 A.2d 503 Pa. *5 granted at the court it the discretion where appears question is a there substantial the sentence is not under imposed appropriate chap- this added). (Emphasis ter.
Pursuant its authority prescribe govern rules courts, in ing practice procedure Supreme the rules promulgated implement this statutory provi sion. By accompanying a note Pa.R.A.P. 902 the proper procedure brought to be followed cases under Section 9781(b) explained has been as follows: (42 9781)
Section 9781 of the Sentencing Code Pa.C.S. § provides that the defendant or the may “petition file a for appeal” allowance of the discretion- ary aspects of or felony for a a misdemeanor. (see 904) The notice of under chapter Rule (content of the notice of appeal)) operates as the “petition for appeal” allowance of Sentencing under the Code. automatically possible raises all questions under- 42 Pa. C.S. 9781 is available and appropriate even where no guilt issue or relating legality of the sentence (in the sense that the outside sentence falls of the range of discretion sentencing court) vested law the presented. wording required No additional or appropri- ate of appeal. notice effect, In filing of the “petition for allowance of appeal” contemplated by the statute is deferred by these rules until briefing stage, where appropriateness of the aspects of discretionary the sen- tence may be and argued briefed in the usual manner. procedure filing for “petition allowance of appeal” briefing stage at the is set forth Pa.R.A.P. 2119(f) as follows: challenges discretionary who aspects
[a]n a sentence in a criminal matter shall set forth in his brief a concise statement of the upon reasons relied for allow- ance of appeal respect to with aspects of a sentence. The statement shall immediately precede the discretionary- to the respect merits with on the argument aspects *6 Tuladziecki, 508, 522 A.2d Pa.
In Commonwealth of various convicted defendant, had been who (1987), the and Substance, Drug, Device Controlled violations 780-113(a)(16), (30), was sentenced Act, 35 P.S. Cosmetic §§ term year a five $1,000 and to serve fine of pay to va- This Court appealed. The Commonwealth probation. for resen- remanded of sentence judgment cated the the outside sentence was the ground the tencing on Supreme The unreasonable. guidelines the for had error reversed, it been holding that Court the Common- merits of consider the Court Superior had failed the Commonwealth where appeal wealth’s 2119(f). said: The Court of Rule mandate with the comply make a careful that our rules must first be observed It the discretion- relating to “questions between distinction the whether and “the issue the sentence” aspects of ary to reach its discretion should exercise court this dis- Recognizing Pa.R.A.P. question.” such 902 ... Note to Pa.R.A.P. tinction, from the language the supply is to that the to the fact speaks only at the question, merits of the brief, on the argument with the statement of his concise provides time as he same does not appeal. upon reasons relied allowance a statement. need for such obviate the and cannot Rule accompanying Note outlined procedure maintaining consist- in the interest of published 902 was of the Sentenc- under this section practice ency between Court, in Superior appellate practice ing typical Code and to the exer- discretion as ordinarily does not have which cise of its jurisdiction____ point some required as the long
So in accordance question” demonstrate a “substantial jurisdiction, Court’s Superior to invoke with the statute not, how- may procedure is sound. this argu- its assessment of ever, rely on permitted hoc justify post issue to on the merits of the ment exists. If determination that a substantial is not made to examination of and determination the merits of issue of the ruling appropriateness on sentence, has in obtained effect as of right aspects from of a It is elementary enlargement that such an appeal rights party accomplished by of a cannot be it rule of court. For this reason is essential that the rules procedure such as this be followed governing appeals precisely. on separate presentation
Our insistence of these issues formalism; than important is more mere concerns of guide In substance this decision. addition to preserving both respective rights parties according to the scheme jurisdictional provided by legislature, it fur- *7 purpose Sentencing thers the evidence Code as a limiting any challenges whole of to the trial court’s evalu- impinging ation of the multitude of factors on the sen- to tencing exceptional decision cases.
Id., 512-513, 513 at A.2d Pa. 522 at 19-20. foregoing is not clear from the language whether the 2119(f) of
requirement is Pa.R.App.P. jurisdic to be deemed tional or procedural. study, After careful we have conclud 2119(f) ed that Rule is procedural only. We do so primarily though because Supreme even Court’s discussion of the Superior rule was in terms of the Court’s jurisdiction, its decision to the Superior vacate Court’s order to remand for resentencing was based expressly upon ,[t]he the fact that Appellant properly preserved challenge to this [hacl] procedural Id., violation.” 513 Pa. 522 A.2d at added). 20-21 (emphasis
Moreover, because the Supreme Court was undoubtedly familiar with Art. 9 the Pennsylvania Constitution, of § we do not believe that its decision in Tuladziecki was intended raise the procedural requirement to Pa.R.App.P. of 2119(f)to the level of a jurisdictional precedent condition to right defendant’s from judgment a final Instead, interpret we the mandate of Tulad- a procedural 2119(b) imposing as ziecki Pa.R.App.P. 9781(b), intended with Pa.C.S. consistent requirement, determine, in advance to Court to allow sufficiently sub- is a merits, there considering the whether appellate review. to warrant stantial Pa.R.App.P. requirements interpreting the Finally, by the numerous we avoid only will 2119(f) procedural to be will most cer- of counsel claims ineffective assistance those grounds jurisdictional if we on tainly reject follow aspects of sen- seeking review appeals comply to with Rule failure counsel’s tencing because 2119(f). is procedural or not jurisdictional the rule is
Whether of Rule requirement If the insignificant distinction. to 2119(f) comply deemed failure jurisdictional, be raised by cannot be waived and have therewith will Little, v. See: sponte. sua District Daly School (1974); Pa. Township, Com Darby (1969); Pa. Helms, monwealth v. Pa.Super. Jones, Pa.Super. however,
A.2d 1028
If it
a failure
procedural,
if
will be waived
it is
comply therewith can be waived and
event,
In
the failure to
appellee.
not
objected
be overlooked. See: Com
2119(f) may
with Rule
comply
Gumpert,
595, 512 A.2d
monwealth v.
(1986) (error
being
taken from order
captioning appeal as
*8
post-trial
judgment
motions rather
than final
of
denying
v. Dougherty,
Commonwealth
fatal);
deemed not
sentence
603,
(1986) (failure
Pa.Super.
raised despite regarding were examined violation of rules v. Commonwealth involved); of questions statement Williams, (1979) (failure A.2d Pa.Super. raise issue in complained statement matters on appeal did Superior excused where failure not defeat Court’s abili- appellate review). ty exercise Tuladziecki, In the defendant his preserved challenge to procedural 2119(f) the Commonwealth’s violation of Rule by (1) issue raising (2) the in the Court and in the case, Supreme In Court. the instant the Commonwealth has not to or otherwise the objected preserved defendant’s failure to include in brief a separate showing, statement required 2119(f), a by Pa.R.App.P. as “substantial that the sentence not imposed appropriate.” Because [was] 2119(f) requirement procedural the Rule is and not juris- dictional, the failure to object or other- Commonwealth’s assert of appellant’s wise defect form has brief Therefore, resulted in a waiver of defect. the Superior determine, discretion, will in its Court own whether there a substantial issue it requiring to review the discretionary aspects of imposed by the sentence court.3 trial
The appellant contends that
sentencing
court abused
its discretion because
his prior
it considered
juvenile adjudi
and,
therefore,
cations
did not sentence him as a first
offender. The role of
juvenile adjudications
in the
issue
process
which this
has
consist
ently deemed to
See: Com
significance.
be of substantial
monwealth v. Tilghman,
Pa.Super. 328,
(1987); Commonwealth v. Lyons,
Pa.Super. 172,
(1987) (Wieand, J.,
dissenting); A.2d 1345
Torres,
362 Pa.Super.
521 has such an Only if there been of discretion. an abuse been See: of sentence be reversed. judgment will abuse Edrington, 251, 255, v. Pa. 416 A.2d Commonwealth 490 Blood, v. Pa.Super. Commonwealth 357 (1980); 457 v. Commonwealth (1986); 515 A.2d 1156, 1164 (1985). 380, 394, 496 A.2d Spencer, Pa.Super. can be found to the issue this case The answer 6354(b)(1), the where, at 42 Act Pa.C.S.A. the Juvenile provided prior juvenile adju specifically legislature pro “in may dispositional used of delinquency dications Thus, felony____” conviction ceedings after “[i]t that a child contin- Legislature intent of the who clearly the activity anti-social into of serious and violent pattern ues his not the benefit a cloak should receive adulthood behavior, it is relevant when immunity regarding is at risk.” public safety and the future behavior predicting Smith, v. Commonwealth A.2d Pa.Super. Johnson, See also: (1984). Pa.Super. 143, 437 A.2d Allen, record, abuse, substance his
Appellant’s lengthy juvenile his of anti-social conduct pattern his refusal to alter sentencing court adequate reasons for the constituted one greater appropriate impose a sentence than that first, adult offense. has committed who are of sentence affirmed. judgments J., dissenting BROSKY, opinion files a which GRILLO, Judge, and POPOVICH and President JOHNSON, JJ., join.
BROSKY, Judge, dissenting: imposed judgment is from the This Ap- appellant pled guilty burglary. after to two counts (1) sentencing court erred contends that: pellant delinquency in com- including juvenile adjudications his score; (2) imposed record the sentence puting *10 was Finding appellant’s excessive. to have claims been waived, quash. I would 2,1984,
On appellant pled November counts guilty two of burglary, carrying gravity each an offense of “6”. score Appellant was 18 old years burglaries. at time of the record, He had no prior adult he did juvenile but have a record for burglaries age committed of 15. on Based record, that appellant prior received a record score of “6”. He was sentenced on December 1984 to two concurrent terms to eight of four years imprisonment, a sentence (standard) within the minimum range gravity offense score of “6” and a prior record score Appellant, of “6”. on 7, 1985, January filed a motion to timely modify sentence which court below denied January on 1985 after a hearing. appeal timely This followed.
Appellant argues the provisions of the sentencing see reprinted guidelines, 303.1-.9, Pa.Code §§ follow ing 42 Pa.C.S. require which a sentencing court to § use certain juvenile adjudications of delinquency in comput ing prior score, defendant’s record are contrary to the legislation authorizing the see guidelines, creation 2154(2).1 Pa.C.S. He thus concludes that the sentencing § court erred in including prior adjudications in its compu tation of his prior record score.
Appellant, despite his statements in his brief to the con- not, trary, however, did raise this issue in his motion to Rather, he only raised the claim that sentence was excessive. It is well-settled that sentencing issues not raised to modify motion sentence are waived. Duffy, Warden, Commonwealth v. 335 Pa.Super. (1984). only The exception to this general rule waiver concerns illegal se; sentences that are per an issue of sentence legality is never waived. Commonwealth v. Neidig, Pa.Super. 217, I do also 2154(2), by Pa.C.S. as amended Act Act of Decem- expressly ber juvenile now authorizes the inclusion of adjudications computation prior record scores. is one of appellant the issue raised here not believe legality. record juvenile if appellant’s it is true that Certainly, have a record considered, appellant would were not (standard) range suggested minimum score of zero and six score of would gravity an offense for that score and range months suggested months, 33-49 than 4-12 rather was sentenced. under which however, a sentence which do not mandate guidelines, ranges of minimum set forth simply but impose, court must consider as one sentencing court must which the sentences of sentence length of the factors in its determination *11 9721(b). guideline ranges The 42 Pa.C.S. impose. See sentencing court in the sense that a “mandatory” only are guideline the minimum consideration give must due issue, specify and must for the ranges suggested crime minimum sentence impose it choose to a reasons should is Thus, claim not ranges. appellant’s outside the suggested one the crime of legal is not a for imposed the sentence that impose that, reaching in its decision to only burglary, but sentence, illegal an sentencing upon court relied the the upon prior based a factor, i.e., range the that was guideline adjudi- appellant’s prior juvenile that included record score words, that the sen- appellant In assumes cations. other by proper if supported tence he received could stand reasons, sentencing court’s reasons argues but impermissible an upon it relied were not because proper is, course, that an well-settled (illegal) consideration. its sentencing a court’s reasons for attack upon legality of the of the sentence and does notraise a Commonwealth v. preserved.2 is if properly waived not expressed My in the herein is in accord with the views rationale Chillo, P.J., Kelly Concurring Opinions by J. Com- authored (1987) (en Hartz, monwealth v. A.2d Pa.Super. not, does, banc), and does raise an issue of sentence as to what Hartz, constitutionality challenged legality. appellant In sentencing guidelines. deadly weapon enhancement section constitutionality in a issue had not been raised motion The Concurring Opinions a held that reconsideration of sentence. sentencing provision challenge to a does not raise an constitutional Martin, Pa.Super. 498, (1984) (en banc); Duden, Commonwealth v. 73, 82, Cruz, Pa.Su- per. 474, (1979). 402 A.2d Therefore, I also must conclude has waived his claim that in including court erred his juvenile adjudications of delinquency computing record score.
Appellant imposed also contends that the sentence was Though excessive. properly preserved appellant’s motion sentence, I would not reach the of appel- merits lant’s second contention.
A challenge to as a sentence excessive a clearly attacks aspect of the sentence imposed. Where purely discretionary aspect of a being sentence is chal- statement, lenged, separate demonstrating that a “sub- stantial question” posed aspect attack, by under must appellant’s be included an brief before this Court may address the of the sentencing merits question posed. Pa.R. Tuladziecki, 2119(f); A.P. see also Pa. Appellant provided not with separate required statement rules, recent Tuladziecki decision.3 Hence, I would legality, upon issue of sentence but attack imposed a reason for the *12 imposed. beyond sentence As the sentence was not the statutory authority court, sentencing or constitutional of the the appellant’s challenge, concurrences found that an unconstitutional sentence, computation reason had been considered in the of his to
have been waived failure to include it in a motion for reconsidera- tion. majority questions my 3. The application of the decision to Tuladziecki judice, light the matter sub in of the Commonwealth's failure to challenge appellant’s 2119(f). compliance of lack with Pa.R.A.P. It is requirements 2119(f) their contention that the strictly of Rule are procedural, and that require does not the result we Tuladziecki reach appellee “preserved challenge where the has not his to this infra procedural deny While do violation." I not com- Tuladziecki upon Regis 2119(f) preservation ments Tuladziecki’s of his Rule chal- lenge, position by majority I feel that the overly taken the involves an reading narrow of the decision. Tuladziecki states, p. also at 19: Tuladziecki challenge.4 excessiveness of appellant’s not reach the merits required point demon- to long the is some So as with the statute to question” in accordance a “substantial strate Supe- procedure is jurisdiction, this sound. Court’s invoke not, however, may permitted rely to on its assessment be rior Court justify post a argument of the issue to hoc the on the merits of question exists. If this determina- a substantial determination that ruling of prior and on the merits is examination of tion not made to sentence, appropriateness the the Commonwealth of the issue discretionary right appeal the in an as obtained from of effect enlargement elementary of that such an aspects a sentence. It is of party accomplished of appeal rights be rule court. of a cannot the governing procedure the reason it is essential that rules For this of added). (Emphasis precisely. be appeals such as this followed support position import not the that Rule of the above does The clear 2119(f) procedural strictly a rule that is procedural in nature. It is is followed, is ultimately jurisdictional. the rule is not this Court If post placed position making hoc to of a determination as presented, through a an exami- whether or not substantial This, sentencing question of at issue. nation of the merits effect, right permits appellant as a an to obtain review of of aspect precisely discretionary sentencing. the Su- This what preme appellant strictly complies Unless an Court has forbidden. 2119(f), jurisdic- requirements procedural of Rule this with Court’s tion, according above-emphasized language, is not invoked. to Hence, my light non-compliance conclusion that with Rule 2119(f) deprives jurisdiction this Court of to review problematic aspects sentencing, I do not find it that the Common- challenge. It wealth has not raised this is well-settled that this Court may appealability jurisdiction sponte. raise issues of sua Indiana Co., Plumbing County Hospital Heating Authority v. McCarl’s appellant’s challenge infra, I find As discussed also do not score, juvenile adjudications inclusion of challenge in his record be a However, infra, legality to the his sentence. as noted waived; furthermore, challenge legality of a sentence cannot separate required statement is not when an Tuladziecki Hence, 9781(a). legality attacks the Pa.C.S. determine, required initially, if Court was the inclusion of an alleged impermissible computation factor of a defendant’s sentence, illegal, merely makes that or demonstrates part only of discretion on was abuse court. after this determination was that we made were able to decide that waived, appellant's first on contention was for failure to in the include it motion to sentence filed below. *13 As appellant has failed to preserve any issues resolu- merits, on I quash appeal. tion would CIRILLO, Judge, President POPOVICH JOHNSON, JJ., opinion. join dissenting Pennsylvania, Appellant,
COMMONWEALTH Melvin GANT. of Pennsylvania. May
Submitted 1987.
Filed Nov.