*2 ROWLEY, Before DEL TAMILIA, SOLE and JJ. TAMILIA, Judge: 18, 1986,
On February appellant pled guilty two charges possession with intent to deliver marijuana.1 sentenced, 2,1986, on April Honorable Connelly, Shad on the drug charge costs, first to pay restitution, fine and to serve a period eighteen $100 (18) months to thirty-six months incarceration. On the charge, appellant costs, second was sentenced pay a $500 fine, restitution and to serve three years consecutive A probation. timely motion to modify sentence was filed by and denied on April 1986. Appellant now brings timely to that denial.
Appellant following raises question appeal: “[wjhether court lower abused its discretion when it give adequate weight failed to to mitigating factors at sentencing thereby imposed and an excessive sentence failing while also to state adequate reasons for the sentence on the record?” Brief for Appellant Although 3. this question statement of the on appeal appears involved to be couched as a single question, poses it fact two issues for First, our review. whether court abused its discretion failing to by give adequate weight to “mitigating factors” second, at sentencing, and whether court adequate failed to state the sentence on the record requiring us vacate the sentence and remand.
We find that this second is properly issue not before us and is due to appellant’s waived failure to raise this issue modify his motion to sentence. sentencing Procedural issues, appellant’s such as insufficient-reasons-on-the-record claim, are if preserved waived not properly presented Whetstine, below. Commonwealth v. 246, 344 approximately marijuana sold one ounce of to an under- agent cover state narcotics separate for the sum of on two $110 18, 2, July occasions—June 1985 and
349 (1985); Brown, v. Commonwealth 342 Pa.Su- Martin, (1985); 492 A.2d per. 745 Commonwealth (1984). However, 328 A.2d 555 since first appellant’s regarding issue the trial court’s weighing presented factors mitigating motion modify, we will address it.
Appellant contends the court abused by its discretion failing to give adequate weight to mitigating factors at sentencing. Based on the Supreme recent Court of Penn- Tuladziecki, Commonwealth v. sylvania case 508, 522 (1987), A.2d 17 and our case Thomas, A.2d (applying Tuladziecki), must analyze we or whether has properly presented this appeal. issue for in
As appeal notice of under Pa.R.A.P. operates “petition as a for allowance of appeal” which required 9781(b). is by Pa.C.S. The briefing stage then must deal with the appropriateness of appeal. (Comments 902). There, to Rule question of appropri ateness is manner, handled the usual by first alleging question relating aspect to the discretionary in the question “statement of required involved” by 2116(a) Pa.R.A.P. (b). This was done case appellant stating:
A. Whether the court lower abused its discretion when it failed to give adequate weight mitigating factors at imposed an thereby excessive sentence *4 failing while also to adequate state reasons for the sen- tence on the record. point
Thus this appellant the had proceeding, properly alleged a question, pursuant 9781(b), substantial to for prior argument. the court’s consideration to Next in the sequence, prior argument merits, to on the see Pa.R.A.P. 2119(f), there must be a concise statement of the upon relied appeal respect allowance of with to the aspects discretionary of the sentence going before to the merits. appellant the that the statement specify
While following the statement of titled question, “Argument”, 2119(f), fact, to pursuant precise- was Rule the statement statute, ly upon, contained the reasons relied case by law sentencing guidelines and the of of appeal allowance the There, of discretionary aspects the sentence. the court, delineated the extent of discretion of the trial to the trial degree by sentencing which court is bound brief, 6), (Appellant’s p. responsi- as well as the guidelines bility apprise of the trial himself the character offense, of the defendant and circumstance of the and explain light to formulate and the sentence in secondly, in the guidelines specified sentencing (Appellant’s code brief, 7). addition, p. In the court must consider carefully given grounds to each of the in the weight set forth grounds applicable (Appellant’s code brief, 8). If p. process the court failed to follow detailed above, there was an abuse of discretion as to the discretion- aspects required of sentence which ary appellate review brief, 8). resentencing.2 (Appellant’s p. We are an posture different here than was the case in entirely Tulad- ziecki, supra, panel where decided there was a substan- question considering tial the merits in a “post hoc after question determination that a substantial exists.” after the statement did the in his Only appellant, above 8). brief, brief, turn to the merits. (Appellant’s p. We statement, above, believe the as summarized Commonwealth, uncontested is sufficient within Rules of Pennsylvania Appellate Procedure as delineated above, permit conformity supra, and to consider accept appellant’s question us to on the merits. stated,
As already period was sentenced to a eighteen incarceration of months on thirty-six Court, 2. Neither nor the recent decision of this Common Tuladziecki Hawthorne, (1987), prevent A.2d wealth v. appellate headings question" review for lack of as to “substantial when, here, of reason" the brief "statement conformity substantial rules. with the *5 sentencing guideline the first count. the Under prepared, range the minimum imprisonment (0) of was zero to twelve (12) months, aggravated the range (12) eigh- to twelve teen the mitigated range months and was non-confine- ment. The limit for statutory this offense is years five (35 imprisonment 780-113(a)(30) (f)). P.S. appel- Thus lant was sentenced the aggravated within range guidelines.
Although appellant sets forth a of number the his argument section of brief finding for an abuse of claiming the court the focused seri- primarily discretion — of ousness the crime using as a deterrant many of these do not pertain the issue of wheth- others — er the sentencing gave court adequate weight mitigating factors at As sentencing. factors, to mitigating stated:
Appellant position takes that court consider meaningfully the non-violent nature of original offenses, Defendant, needs his age, young needs and his extensive society drug habit potential. rehabilitaive The sentencing [sic] court had a duty to consider these factors and ability rehabilitation, and whether less severe sentence would have been appropriate.
Brief limits,
“When a sentence is within statutory
and the
complied
Code,
court has
the Sentencing
42 Pa.C.S.
9701-9781,
we will
reverse the sentencing court’s
§§
decision absent a manifest abuse of discretion.” Common
wealth v. Gallagher,
426, 452,
735,
510 A.2d
Brown,
(1986);
1155 (1983).
460 A.2d
Pennsylvania trial judges are vested
with broad sentencing
appellate
discretion with which courts will not interfere absent manifest abuse. Common
Green,
wealth v.
Com
(1981);
(1985). Discretion must be judge’s accorded sentencing decisions, because such is in the best situation to weigh various factors such as the nature of crime, defendant’s character and remorse, defendant’s display *6 defiance or indifference. Duffy, 341 (1985). The statement of the court at the sentencing proceedings need not specifically cite or include the language code, it need only demonstrate that the court has considered the factors White, supra; Commonwealth v. specified the code. Kane, (1983). A.2d 1246 case,
In the instant imposed rigor sentence ous but well within statutory guidelines. limits and After considering prior record, criminal began which ten or eleven years ago when appellant was a juvenile, appellant’s drug extensive problem and self-admit ted addiction to marijuana, nature of the serious crime selling drugs and appellant’s character, the sentencing concluded that should be incarcerated order protect both himself and society and further his rehabilitation which has been to accom unable (N.T. plish 4/2/86, 5-9). his own pp. While it is true that prior record scores incorporated are into guideline ranges, those specifically chargeable offenses sometimes do not adequately bear out the defendant’s anti-social and disruptive Here, activity. the trial court paid considerable attention to those factors and weighed them more heavily against the defendant than any redeeming considerations present.
Finally, appellant’s argument that the court did not take into mitigating account factors considering sentenc ing is without inOnly capital substance. cases does the law require a set off of mitigating aggravating circum stances in making determination, i.e., life in between See prison and death. Pa.C.S. In other case, the court is required to assess the rehabilitative needs defendant, and despite the existence of factors such good family, attendance, church etc., employment, if continued criminal is behavior such that the prediction for abiding none, law behavior is slim or and the mitigating factors are irrelevant to the rehabilitative needs and the protection society, they prevail. The may legislature gone has even further in mandatory sentencing to eliminate any consideration of mitigating factors certain classes of cases, when public requires welfare it. Commonwealth Gamber, (1986). A.2d 1324 In conformity supra, the court did view the case from the perspective of the entire code, rather than its limiting consideration to the perspec- narrow tive of the sentencing guidelines.
We conclude that the sentencing judge gave adequate weight existing mitigating factors and that imposed sentence was not excessive and there was no abuse of discretion.
Judgment of sentence affirmed. SOLE, J.,
DEL
concurs.
SOLE,
DEL
Judge, concurring:
I
join
in
Majority Opinion
all respects.
I
sepa-
write
rately
address the issues raised relative to the application
of Commonwealth
v.
Initially, one must realize that Superior Court of Pennsylvania has jurisdiction to hear appeals involving the discretionary aspects of sentencing. 9781(b) Pa.C.S.A. § provides discretionary jurisdiction in this court and the Supreme Court in Tuladziecki indicated procedural steps necessary invoke that discretionary review.
It is obvious that the method of raising the issue to this court for our exercise of discretion reviewing the discre- tionary aspects of sentencing is procedural. As the majori- ty stated Tuladziecki:
“The Appellant properly preserved challenge his to this procedural violation, and for the reasons stated herein the Superior Court’s decision to overlook it must be vacated.” Since the Supreme Court has clearly labeled the failure to properly follow the Appellate Rules in raising the issue of discretionary aspects procedural, such a defect would be waivable. case,
In the instant Appellee to the object procedural irregularity in Appellant’s raising brief Therefore, the issue. that my view issue is waived. However, since I am of the view that the Tuladziecki requirements are I also procedural agree with the Majority court, exercising that its discretion to determine sentence, whether it would can review waive technical procedural defects. Pennsylvania, Appellant,
COMMONWEALTH of GILBERT, Gilbert, Appellees. John W. Vincent Superior Pennsylvania. Court of
Argued Nov. Filed June