*1 circumstances, children. Under these the parents where equally are able to support their children and they where equally share that an responsibility, obligating order pay father support thereby additiоnal become re- sponsible greater share of support the children’s is an abuse of discretion.
The support order of is reversed and set aside. Pennsylvania
COMMONWEALTH of MYERS, Appellant. Kevin L. Pennsylvania. Court of July Submitted 1987. Jan.
Filed 1988. *2 son, York, for appellant. F. Daniel Wolf York, Lam, for Attorney, R. Assistant District Donald Com., appellee. CIRILLO, Judge, President and HOFFMAN
Before CERCONE, JJ. HOFFMAN, Judge: for is an of sentence appeal judgment
This from Appellant contends that robbery. including prior juvenile adjudications
erred in his his score delinquency without making finding regarding the “nature first on the record (2)failing adequate forth adjudications”; of these set his justify disparity reasons on the record to between of his co-defendant. For the reasons that follow, judgment we affirm the of sentence.
Appellant plea guilty entered to four counts of theft, two robbery, counts three counts reсeiving stolen one property, attempt count of criminal to com- robbery. mit He was sentenced to a forty-four-to-eighty- eight-month imprisonment term of for robbery counts and the other charges merged sеntencing purposes. Guidelines, 303.1-.9, Under the 204 Pa. Code reprinted following robbery, Pa.C.S.A. 18 Pa.C. § 3701(a)(1)(h),(iii), S.A. carries an offense gravity score of § seven. See Pa. Code 303.8. At time of the § offense, appellant’s prior instant criminal record included juvenile adjudications for three counts of burglary. Based record, assigned a prior record score of six. See id. 303.7. His sentence within § mitigated range guidelines. See id. Appellant 303.9.1 filеd a motion to modify sentence, *3 denied, which was and this appeal followed.
Both in appeal contentions raised this concern discretion- of ary aspects sentencing.2 requirements The of Pa.R.A.P. 2119(f) Tuladziecki, 508, Commonwealth v. 513 Pa. 522 17 A.2d therefore аpply. Appellant has failed to include in his brief “a concise statement of the reasons upon relied of appeal” allowance as required by Rule 2119(f) In Krum, Tuladziecki. Commonwealth v. Superior Ct. (1987), hоwever, A.2d 134 this Court, banc, sitting en held recently appellant’s that an failure comply 2119(f) Tuladziecki, to with Rule if not including juvenile 1. Without adjudications, appellant's the prior mitigated record score would have bеen zero. The minimum gravity prior for an offense with a score of seven record score of zero weapons enhancement is 16-to-20 months. See 204 Pa. Code Thus, forty-four § 303.9. his minimum sentence of months was considеrably longer prior than that recommended for a record score of zero. 2. We note that two recent en banc decisions of this Court have question juvenile determined that the adjudications may whеther properly discretionary aspect computing be prior implicates included in record scores sentencing of sentencing legality. and not See Krum, Superior 367 Pa. Ct. (1987); Tilghman, 366 Pa. 53 A.2d 441 procedural viola- is a waivable appellee, objected 519-520, at 138. 533 A.2d Pa.Superior Id., tion. the Rule objected Here, the Commonwealth has Accordingly, the Com- 2119(f) appellant’s defect brief. absence objeсtion based any has waived monwealth to exam- proceed must therefore of such a statement. We “determine, in sentencing claims and appellant’s ine each discretion, is a issue there substantial own whether [our] aspects discretionary to review the requiring [us] court.” Commonwealth v. imposed by the trial Krum, supra. sentencing applied contends that court
Appellant first erroneously because it included sentencing guidelines delinquency prior juvenile adjudications making regarding a finding record score without first prior In Commonwealth v. adjudications.3 nature of the (1987),(en 366 Pa. 531 A.2d Superior Ct. Tilghman, type concluded that this оf claim banc), recently Court our imposed is a substantial that the sentence presents question 2,n. id., 366 at 332 & inappropriate. Pa.Superior Ct. See if, (substantial exists question at 443-44 n. & alia, sentencing erroneously сourt appears that inter also Pa.C.S.A. guidelines). See applied for allow- 9781(c)(1). grant petition Accordingly, we appeal ance of as to this issue and turn to the merits claim. score, the
In
a defеndant’s
Sen-
computing
score,
tencing
direct a
inter
Guidelines
alia,
prior juvenile adjudications
delinquency where
*4
“[a]ll
adjudication
an
that the
express finding
there was
weapons
on the
or one of thе
felony
based
commission
(a)(3)
adjudica-
misdemeanors listed in subsection
where the
birthday.”
occurred on or after the defendant’s 14th
tion
303.7(b)(l)(ii)
supplied). Appel-
Pa.
(emphasis
204
Code §
findings
is
court made no
with
argument
lаnt’s
that the
challenged
constitutionality
that
3. We note
has not
the
Sessoms,
According,
Guidelines.
Commonwealth v.
365,
Id.,
inapplicable.
n.
Pa.
532 A.2d
is
We also note that record of the Defendant which, occurred in 1981 in as a he juvenile, charged of burglary placed with three counts on probation for period yeаrs. of two The three burglaries of which the felonies, Defendant was convicted as a juvenile are therefore, score, in the prior increases the guidelines. Again, the sentence under the sentencing Court must obviously guidelines consider and must exceptional follow them unless there are circumstances. 21, N.T. July 5. Accordingly, we conclude that appellant’s first claim is meritless.
Appellant next contends that the court abused its by failing discretion set forth adequate reasons justify the disparity between his sentence and judge co-defendant. a trial to impose different sen “[F]or co-defendants, tences on he must find differenсes [or she] sentences.” Com between the co-defendants justify Velez, monwealth 15, 16, 477 A.2d 879, (1984). Moreover, reason that one co-de “[t]he fendant receives a more severe sentence than another must Id. Because appellant’s conten be stated on the record.” tion, if proves merit, it to have would require that we id., see remand the case resentencing, for Pa.Superior Ct. at presents 477 A.2d at question a substantial the sentence imposed was inappropriate. Accordingly, we grant petition of appeal allowance as to this issue and turn to the merits of the claim.
A sentencing court is rеquired to impose the same participants in a crime. Common all Sinwell, wealth v. 311 Pa. Superior *5 accomplice Moreover, when a defendant’s (1983). 957, and is proceeding, a separate tried, guilty, рleads or is is court sentencing different judge, a by sentenced the defendant’s a between disparity to explain required v. Commonwealth accomplice. and that of 494, 500, 450 A.2d Craft, 304 Holler, Pa. Superi See also (1984) (it is not incum 304, 310, 473 A.2d or Ct. sentence different court guided court to be upon bent id., co-defendant). Pa.Superior But see imposes on (even different courts sen when 311, 473 A.2d at great disparity co-defendants, there should not be tence unequal to unless facts exist warrant imposed sentences sentences). case, pleaded guilty, was appellant instant
In the of im term forty-four-to-eighty-eight-month to a sentenced Sweitzer, сo-defendant, who appellant’s while prisonment, sentenced, a pursuant plea was pleaded guilty, also terms of year concurrent two-to-four arrangement, to two pleaded his co-defеndant imprisonment. Appellant sentenced, N.T. judges. before different guilty, and were v. Craft, Under Commonwealth August 1986 at 2-3. appeared and his co-defendant supra, because upon incumbent different was not judges, before explain in the sentences. disparity court to Moreover, is that reasons great even if the so disparity Holler, given, should have see been sentencing hearing reveals supra, review support court articulated factors that were sufficient appellant’s co- appellant’s sentence. The court noted that defendant, pursuant sentenced appellant, unlike arrangement. In addi August N.T. 1986 at 2-3. plea tion, pre-sentence had of a the benefit report prepared investigation report, while no such the court regarding appellant’s Finally, co-defendant. Id. imposed: justificatiоn for the sentence provided ample below sentence, appel the court was aware the co-defendant’s circumstances, background improved lant’s behavior *6 arrest, since his as wеll encouraging as the statements Id. at 5. witness who testified on appellant’s behalf. In light positive factors, of all of these then sen- tenced to the appellant possible lowest minimum sentence mitigated available within the minimum of the sen- tencing record, On guidelines. this we cannot conclude that imposed sentence constituted an abuse of discretion. reasons, foregoing
For the we affirm the judgment of sentence.
Judgment of sentence affirmed.
CIRILLO,
Judge,
President
files a dissenting opiniоn.
CIRILLO,
Judge, dissenting opinion:
President
I
dissent.
I
respectfully
disagree with the majority’s
decision to reach the
appeal.
merits
this
Myers chal
lenges discretionary
aspects
imposed.
Where a purely
aspеct of
discretionary
sentencing is being
challenged,
must
include in his
a “con
brief
cise statement of the reasons relied upon for allowance of
appeal.”
9781(b).
42 Pa. C.S.
This statement must show
there exists a “substаntial question that
the sentence
imposed is not appropriate under
[the
Code].”
Id.;
see also
v.
2119(f);
Tulad
Pa. R.A.P.
zeicki,
513 Pa.
I disagree with the
in
majority decision
Krum,
(en
367 Pa.Super.
(1987)
banc),
(en banc) (Cirillo, P.J., concurring). In failing to include a 2119(f) Rule brief, statement Myers has failed to properly invoke this court’s jurisdiction. course, The proper Tuladziecki, quash is to ruling court’s supreme under appeal. this VAUGHN, Sr., Appellant E.
Dennis Margaret E. VAUGHN. *7 Pennsylvania.
Superior Court of Argued 1987. Oct.
Filed Jan. 1988.