*1 A.2d 732 COMMONWEALTH MсFARLIN, Larry Appellant. Pennsylvania. Superior Court Argued 1990. Oct. March 1991.
Filed *2 Lancaster, Defender, Public Quinn, Chief J. Vincent appellant. *3 Com., Lancaster, for Chudzik, Dist. Atty., Asst.
Brian E. appellee. CAVANAUGH, CIRILLO, Judge, and President
Before OLSZEWSKI, McEWEN, DEL WIEAND, ROWLEY, TAMILIA, SOLE, JJ. BECK and OLSZEWSKI, Judge: ap- discretionary aspects challenging
This whether us to determine requires sentence pellant’s guaranteed violates Pa.C.S.A. § Constitution. 9 of the Article by 2119(f) and Rule statement appellant’s reviewed We have to the question as raise a substantial it does not find that Further, hold we imposed. sentence аppropriateness to upon regulation reasonable is a that § Pennsylvania Constitu- not violate the and so does appeal, of sentence. affirm judgment tion. We seventy- wrote Larry McFarlin period, Over a two-month ac Unfortunately, merchants. checks to various five closed; had been drawn the checks were upon count the checks. he wrote of this when was aware McFarlin pled McFarlin to guilty seventy-five counts of by theft and deception two counts of to сonspiracy commit theft deception.1 Following guilty plea to all counts and a pre-sentence investigation, McFarlin was to sentenced period of incarceration one and one-half to five years. McFarlin was also to sentenced consecutive and concurrent probation periods totaling seventeen years, him subjecting supervision up twenty-two years. McFarlin was fined and ordered to pay restitution the amount $500.00 $8,058.70. A to modify motion sentence was filed аnd dismissed; this timely appeal followed. 2119(f)
McFarlin’s appeal contains a Rule statement as asserting well as that we should challenge consider his discretionary aspects his sentence should we find that the statement not present does a substantial question appropriateness as to the of the sentence It is imposed. well settled that questions constitutional will ad- not be dressed unless absolutely necessary. Krenzelak v. Krenze- lak, (1983) (citation omitted). we will first Accordingly, sufficiency еxamine 2119(f) of McFarlin’s Rule statement.
McFarlin’s statement enumerates the numbers of counts to which he pled guilty categorizes those counts as twenty-two first-degree misdemeanors, forty-two second-de- gree misdemeanors third-degree and five misdemeanors. The statement also probation lists incarceration which McFarlin was sentenced. McFarlin claims the sen- tence imposed is not under the Code appropriate Sentencing *4 (42 seq.) Pa.C.S.A. as it is excessive. manifestly et § misdemeаnors; McFarlin notes that all of his crimes were his prior involving criminal record is one incident aggrava- threats; ted supervision assault terroristic and the total imposed greater is more than four times than the maximum sentence which could one imposed any single have been pled of the offenses to he McFarlin also guilty. which checking belonged 1. The account wife. had to McFarlin his co-conspirator. wife was McFarlin’s his of his product committed were the that the offenses assеrts brief, 12.) page (Appellant’s abuse. drug and alcohol 2119(f) state a Rule of whether The determination made on a must be raises a substantial ment Losch, 369 Pa.Su v. basis. Commonwealth case-by-case (1987) (citations 115, 119, n. 1 7, A.2d 192, 201, n. per. the discre inclined to examine omitted). This Court will the state sentence where appellant’s of an tionary aspects judge’s that the trial argument a ment “advances colorable specific provision a 1) inconsistent with actions were: fundamental norms Code, 2) to thе contrary or Sentencing (citations omit sentencing process.” Id. underlie the ted). argument a colorable has not advanced
McFarlin specific provision any violates imposed that the sentence fact, no mention of Code; in McFarlin makes Sentencing has McFarlin Nor Code. any specific provision norms under from the fundamental deviation specified any in 42 Pa.C.S.A. as outlined sentencing process lying that his crimes were 9721(b).2 arguments McFarlin’s § insignifi minor, criminal record prior that his rеlatively crimes, his without cant, his induced dependency and that more, question. a do not raise substantial (1989) 16-17, 919, 924 Hall, 6, 554 A.2d denied, (1990). According alloc. 2119(f) state McFarlin’s Rule determined that ly, having 9781(b), the consti we examine is insufficient under ment § of that section. tutionality challenge to the any principles apply
Certain An of the General Assem of a act constitutionality statute. constitutionality; a strong presumption bly carries heavy presumption bears seeking to rebut party v. Common Party Consumer persuasiоn. burden (1986) 323, 331-32 wealth, 158, 175-76, 507 A.2d Pa. sentencing guidelines promulgated judge 2. The trial considered (Trial opinion imposing sentence. pursuant before 9.) makes no mention McFarlin’s statement N.T. at at 11/2/89 sentencing guidelines. *5 also, (citations omitted). See 1922(3). Pa.C.S.A. “Leg- § islation will not be invalidated unless it clearly, palpably, Constitution, plainly violates the and any doubts are to be resolved in a Id., favor of of finding constitutionality.” (quoting, Liquor Control Board The Spa v. Club, Athletic 364, 370, 506 Pa. A.2d (1984)). statute, When a reviewing a court must exercise evеry reasonable effort to uphold v. provisions. its Tracy Chester Bureau, Tax County Claim 288, 296, 507 Pa. n. 1334, 1339, n. 2 With mind, these precepts we consider McFarlin’s claim.
The Pennsylvania Constitution guarantees right a of ap- peal from a court of record: right
There shall be a of in all appeal cases a court of from record; record a court not of and there also shall be of right appeal a from a of court record from or administrative to a of agency court record or to an court, appellate the selection of such as to court be law; provided by and there rights shall be such other as may provided be by law. CONST, PA. 9. art. Code provides Judicial § procedure for exercising right this on appeal when issue aspects imposed the sentence follow- ing proceedings: criminal petition
The defendant or may Commonwealth file for allowance of discretionary aspects sentence for a or felony misdemeanor to thе appellate that appeals. has jurisdiction such Allowance of appeal may granted appel- at the discretion of the appears late court where it there is that a substantial question that imposed sentence is not appropriate under this chapter. 9781(b). on the Focusing phrases Pa.C.S.A. “allow- appeal” “granted
ance of at discretion court,” section, argues McFarlin this ef- fect, renders this type appeal discretionary in violаtion of agree. the constitutional We do not recognize We that this has been construed as Wilkerson, absolute. *6 477, (1980). 9781(b)
416 A.2d 479 are also that We aware § Com upon right. has been construed as a limitation that Jones, monwealth v. 138, 142-43, 732, 523 Pa. 565 A.2d 734 Tuladziecki, v. (1989); 513 Pa. 17, (1987). Nonetheless,
522 A.2d 19-20 the existence of an not, itself, to does in and right appeal absolute render all limitations the exercise of that unconstitut governing right ional.3 It has the law that the long legislature been both authority and the courts have the to enact reasonable regulations controlling the exercise of the constitutional Commonwealth, 291, Sayres appeal. 88 Pa. (1879). are, extent, 306-08 All regulations to some limita 9781(b) tions. If the imposed by limitation is a reasonable § control of the it appeal, exercise to is constitu tionally valid. 9781(b) hold is today regu
We a reasonable § lation of the right only applies The section where an accused the appeals discretionary aspects of his sentence; imposes it no burden on an accused asserting other errors by trial court. The discretionary aspects a sentence are left normally undisturbed on as the trial is in a advantageous position weigh court more determining sentence. Common factors appropriate Martin, 118, wealth v. 131, 650, 466 Pa. 351 A.2d 657 if Only manifestly the trial court its discretion abuses will Plank, the sentence be disturbed. Commonwealth v. 498 145, 491, 144, (1982) (citation omitted). Pa. 445 A.2d 492 facts, of discretion consists of overlooking pertinent Abuse evidence, disregarding the forcе of the error committing an law, or a sentence exceeds imposing statutory Townsend, maximum. Commonwealth v. 604, 606-07, 1139, (1982) (quoting, Common- 443 A.2d here, that, passing 3. We note in while not at issue provides governing promulgation Constitution itself for the of rules procedure, practice, long and conduct of courts so as these rules abridge, enlarge, modify rights litigants. do not or the substantive CONST, 10(c). PA. art. § Edrington, wealth v. 251, 255-56, 455, Pa. 416 A.2d (1980)). effect, In merely requires an accused to indicate how the trial possibly court abused its discretion befоre the court will consider the merits of his as contentions to the discretionary aspects of his sentence. discretion, Unless trial has abused its discretionary aspects of a sentence will remain undisturbed on If an appeal.4 point accused possible can to a abuse by court, the trial a substantial question exists him entitling Absent review. such an court, abuse the trial defendant’s meritless. Section acts as a threshold burden which a defendant must meet. Common Chilcote, wealth v. 106, (1990).5 Adoption оf McFarlin’s contention would inun *7 courts; date the appellate criminal would defendants auto the matically appeal discretionary aspects every of sentence imposed. This Court would be required to consider the every merits of such challenge no matter obviously how meritless.
Nor are we persuaded
the
by
dissent’s claim that
the
practical
of
application
requirement
the
question
substantial
has led to dubious standards and inconsistent
It
results.
is
argues
discretionary
4. sеntencing power
dissent
that the
is one of
and,
easily
therefore,
powers
the most
abused
every
of
discretionary aspect
abuse occurs.
required
of a
is
sentence
to insure that no such
(Dissent
738-39.)
agree
at
While we do not
that our
likely
engage
trial court brethren are
in wholesale abuse of their
powers,
tence are
Reversal is
discretion.
discretionary
dissent fears. If a
emphasize
discretionary
we must
the
aspects
that
of a sen-
just
that:
judge.
entrusted
only
the
discretion of the trial
indicated
where there has been a manifest abuse of
Plank, supra.
every
We
to see
fail
how an
examination
looming spectre
sentence will
curb
of abuse the
present,
manifest abuse of discretion is
substantial
not,
grounds
If
exist.
an examination of the merits will not result in
discretionary
reversal. Examination of all
sentence abuse claims will
only
accompanied
more
by
result in
control of the trial courts if it is
change in the standard of review.
argued
complianсe
2119(f)
5. It is also
that
with §
and Rule
complicates
process
adding
analytical
an additional
,
upon
tier
cote,
aspects
to an attack
of a
Chil
sentence.
130-31,
J.,
supra
Pa.Super.
396
(Popovich,
at
We however, Court, pursue every obligated This due to the statutory provision to validate a possible avenue attaches to constitutionality whiсh heavy presumption operation say such cannot provisions. We the constitu- palpably and violates clearly, plainly § tion, appeal” “grant- “allowance of despite phrases it There- at the of the court” which contains. ed discretion fore, 9781(b) is hold that 42 Pa.C.S.A. a reasonable we such, as it appeal; of the exercise of the regulation the Pennsylvania does not violate Article Constitution. denied; judgment
Petition for allowance of sentence аffirmed. SOLE, J., dissenting opinion
DEL files a BECK, JJ., join. WIEAND *8 J., McEWEN, concurs in the result. SOLE, Judge, dissenting:
DEL raised question Because review of the constitutional my 9781(b)of the conclusion that Section Appellant demands by Pa.C.S.A., of Code, right 42 contravenes the Sentencing the V, 9 of the Pennsylva- Article Section appeal guaranteed by Constitution, this dissent. compelled I am to write nia Constitution, Article 9 of the Section provides.
511 Right appeal 9 of There shall be a of in all right appeal cases to a of court record; reсord from a court of not and there shall be also right appeal a of a court of from record or from an administrative to a of agency court record or court, the selection such of as be law; provided and there be by shall such other of rights appeal may provided as law.
In this construing provision Supreme the of Pennsyl- Court that, vania has stated “an has an accused right absolute Wilkerson, Commonwealth v. appeal.” 296, 490 Pa. 416 477, (1980). A.2d 9781(b), the “grant” allows for of an allow- оf appeal
ance
at the appellate court’s discretion where a
substantial question
concerning
exists
the appropriateness
of the sentence which
imposed,
was
a
curtails
defendant’s
absolute
As
supreme
our
court recognized
Jones,
Commonwealth v.
in
138, 142-143,
732,
(1989),
“Section
provides the defendant or
only
Commonwealth with
a limited
in an
appeal
attack
sentence____”
upon
aspects of
discretionary
legal
a
It
also
has
been noted
accordance with Section
appearance
question
of a substantial
determines
“[t]he
whether this court may
grant
allowance of
aspects
sentence,
discretionary
of
while
sound discretion
of the court
will
grant
determines whether
the court
re
277,
view.”
McLaughlin,
610,
A.2d
The limitation this section
plays upon a
appellate rights
defendant’s
was noted
Tuladziecki,
Commonwealth v.
supra. Commenting
on
prior practice
this court’s
of reviewing the
on the
argument
sentencing
prior
merits
mаking
issue without
deter
mination of whether a
raised
as
substantial
was
so
appeal,”
to “allow the
the court stated: “If this determina
prior
tion
not made
ruling
to examination
on
sentence,
merits
the issue of the
appropriateness has in
[Appellant]
effect obtained an
as of
Tulad
aspects
sentencing.”
from
ziecki,
supra.,
Pa. at
An
as
provides an
Constitution
The
guarantees.
if the
to
even
right
appeal
as
with a
Appellant
accused such
is the
sought
to be reviewed
only matter
The
does
defendant’s sentence.
Constitution
of the
aspects
limited
therefore,
by any
it cannot
right,
this
be
not limit
Sentencing Code.
of the
provision
to
has been
right
appeal
concedes that the
Majority
9781(b)
absolute,
suggests
and it
that Section
construed as
that right.
valid limitation on
only
constitutionally
acts
as a
735.)
that
Although it has been stated
opinion at
(Majority
a personal
to
review is
right
appellate
“this constitutional
knowing,
a
relinquished only through
right
may
v. Pas-
waiver,”
Commonwealth
vоluntary
intelligent
9781(b)
saro,
(1984),
does
Pa.
The superior court’s decision to dismiss such an appeal leaves an appellant without recourse. An appeal to the supreme court from such a allowed, decision is not leaving superior the court’s decision unchecked. This on limitation review is forth in set 42 9781(f). Pa.C.S.A. It provides: appellate
Limitation on additional review.—No appeal of the aspects of the discretionary sentence shall be permitted beyond the court that has initial juris- diction such appeals.
42
9781(f)
Pa.C.S.A. §
the
Accordingly,
superior court’s discretionary decision to
disallow
reviewed,
can not be
and an
abuse
that discretion cannot be remedied.
'
“right”
removal
the
to ensure that a defendant’s
sentence is
is particularly
reviewable
disturbing when one
examines the
decisions
this court which have determined
whether to
an appeal. Widely
allow
divergent and incon-
sistent views of
what constitutes
substantial
have
resulting
arisen
in nonuniform treatment of a defen-
dant’s
ability
appeal a sentencing matter. See Common-
Ziegler,
wealth v.
515,
379 Pa.Super.
(1988)
550 A.2d 567
(appellant must
in
2119(f)
include
his Rule
statement
convicted);
crime for
he
Commonwealth v.
was
Cummings,
341,
(an
368
Pa.Super.
(1987)
Pennsylvania’s procedure
sentencing,
of indeterminate
the
discretion to the trial
granting
“necessitates
of broad
determine, among
sentencing
who must
the
alterna-
judge,
the range
permissible penalties,
proper
tives and
Martin,
Commonwealth v.
imposed.”
sentеnce
Pa.
[M]any argue commentators is one of the most in the important, easily powers and most abused vested Waters, In United States trial court today. [citation court, omitted], for the stated: Judge Wilkey, speaking happens What to an offender after conviсtion is the understood, dis- fraught least the most with irrational in crepancies, improvement and the most need of of any phase in our justice criminal system.
It is true that the sentence is imposed normally left on appeal undisturbed because the trial court is in a far position better weigh the factors involved in such a However, determination. we have held that the court’s discretion must be exercised within certain procedural limits, including consideration of sufficient and accu- rate informаtion. 131-132, Pa. at (footnotes 351 A.2d at omitted.)
Thus, the important power held by those who impose a discretionary sentence is a pow"erwhich must be exercised within limits. As a on check those limits the citizens of this been provided Commonwealth have with constitutional provision found in Article Section which ensures that a defendant has a of the Sentencing Code eliminates that right, and instead gives the reviewing court the power “grant” or appeal, “allow” discretion, its when the discretionary aspects of a sentence challenged. are
Footnote four of Majority Opinion clearly illustrates how Majority point argument misses in this case. The not whether trial courts will or will not abuse their discretion. We assume members of the bench this Commonwealth will exercise their duty high with the accordance standards for which they are *12 known, recognize however we must that mistakes do occur courts exist to remedy such situations. The issue is legislative attempt real to our permit court to exеrcise our discretion to limit This review.
action, which is subject review, not prohibits what our constitution guarantees—the right own argues The Commonwealth that the decision the Su- Tuladziecki, in preme impliedly Court supra, upheld the 9781(b). constitutionality agree; rather, of Section I do not issue presented was never to the Court. Petition for Allowance of Appeal supreme before the court raised questions: two
I. Did the Superior Court err in entertaining the Com- monwealth’s where the Commonwealth failed to demonstrate a question substantial concerning the propri- ety of the sentence imposed?
II. Superior Did the court err in reversing the Judge- ment of sentence of the Trial Court upon determining that the sentence imposed was unreasonable? Docket, W.D. Allocatur 1985. Allocatur granted was solely to determine these questions. At no time was constitutionality of Section raised or considered: The supreme court has identified as a “well-settled principle” that it “should not deсide a constitu- question tional unless absolutely required to do so.” Krenzelak, Krenzelak v. 503 Pa.
(1983). The constitutional was not raised and not preserved for review in Tuladziecki was not necessary to the court’s decision. Because constitutional questions are not to anticipated, I have no in hesitancy rejecting the view that the issue has been decided by implication.
By my decision I would expressly overrule two prior
court,
decisions of this
Smith,
Commonwealth v.
Super. 164,
(1990)
Although Constitution, therefore necessarily and would Pennsylvania claim, conclude, I after Appellant’s ultimately review would record, a review of the that the trial court did not abuse its sentence. imposing discretion BECK, JJ., join. WIEAND and McEWEN, J., concurs the result.
COMMONWEALTH of McFADDEN, Appellant. Linda M. Pennsylvania. Superior Court of Sept. 1990. Submitted Filed March 1991.