*1 affirmed. Order A.2d 991
COMMONWEALTH SMITH, Aрpellant. Glenn Pennsylvania. Superior Court of Argued 1988. Feb. July 1988.
Filed determination, Court this is no need for there light of our appeal. appellee’s cross decide *3 Defender, Philadelphia, Sosnov, Assistant Public Leonard appellant. for Philadelphia, Burns, Attorney, District J. Assistant
Hugh Com., appellee. for MCEWEN, OLSZEWSKI, WIEAND, BROSKY,
Before JOHNSON, and TAMILIA, KELLY, POPOVICH BECK, JJ.
BECK, Judge: of judgment Smith from Glenn appeal by This is an 3, the Court of by February on imposed involves County. This case Philadelphia of Pleas Common the provisions alleged conflict between an Pennsylva- (which repealed by was Youth Offenders 1987)1 9, the 1982 February effective legislature nia Penn- (which by the were invalidated Sentencing Guidelines 7, on in a filed October Court decision Supreme sylvania amended, 6, 63, Act, as April § P.L. Act of 1. Youth Offenders repealed by Act of Dec. 1964), (Purdon 61 §§ Pa.Stat.Ann. tit. 483-495 11, 1986, days. effective in P.L. No. 1987).2 We find judge trial did not err when he first appellant calculated the sentence that would receive the 1982 Guidelines and departed then from sentenced in accordance Youthful with the Offenders Act. We therefore affirm the judgment sentence. 1, 1986, appellant approached
On June Smith a woman walking Wyoming who was in Philadelphia Avenue her to hand her forced over He money. was apprehended 3, 1986, and on police, October he pleaded guilty as a robbery felony degree. second A hearing then scheduled for February 1987 before the Honorable Bernard J. Avellino.
At sentencing hearing, trial heard argu- ment on the application correct of the 1982 Sentencing to appellant’s Guidelines case. Both defense counsel and the Commonwealth agreed that under the guidelines offense gravity However, score for Smith’s crime was “5”. the parties disagreed on the assigned value which should be prior Smith’s record score. The main- tained that Smith a prior had score record оf “4” since he had adjudicated been delinquent for committing two robber- ies juvenile. as a Defense counsel insisted juvenile adjudications could not be prior counted in determining score, record and that therefore had prior Smith record score of “0”. *4 Guidelines,
2. The 1982
204 Pa.Code ch.
were invali-
by
Pennsylvania Supreme
dated
in
Court
Commonwealth v. Ses-
soms,
Pa.
[T]here anyone. I before sentencing guidelines. consider the
I have to for that the you say alone sentencing guidelines The confinement, that range minimum of range, the minimum I mitigated, range the minimum nor aggravated is not the twenty to eighteen in at least you jail to for ought put [is] months. seven 16.3
N.T. at however, reflection, judge the trial decided further Upon guide- sentencing range suggested minimum presen- The judge reviewed appropriate. lines was not Smith would benefit report which stressed that tencing punish- of program firm reward from “... a consistent N.T. at setting.” very in a structured and controllеd ment recommendation, the concluded light 17. In of this be needs of the defendant could best that the rehabilitative facility youthful met if he confined in the state were sentencing, the Hill. At time of offenders at Camp eligible to to order provided Youth Offenders Act prison Hill, a must receive Camp to defendant be sent term of confine- not a minimum specify sentence which does guide- from the Accordingly, ment.4 deviated "4”, prior gravity score of "5” and a offense 3. For an offense score range guidelines specify a of 18-27 months confine- the ment, minimum confinement, range aggravated 27-34 months an mitigated minimum range of confinement. See minimum 14-18 months attorney length stated the 303.9. The assistant district Pa.Code beginning ranges of the three on the record at the all hearing. at 4. N.T. provides part: 4. The Youth Offenders punishable by person, Any of an offense who shall be convicted Camp Hill imprisonment at Correctional Institution] the [State who, imprisonment upon shall be sentenced and therein, such conviction according and not otherwise. imprisoned to this act shall be Hill], courts, [Camp not fix or limit the shall The sentence, person such shall but the time duration of *5 a sentence to be served at Hill with imposed Camp lines аnd maximum limit years no minimum limit and with a of six imprisonment.
Appellant timely modify filed a motion to sentence argued he that the trial court had miscalculated his for his prior by adding points juvenile adjudica- record score tions. This motion was denied on 1987—the February of the Youth day repeal same on which went into effect.
Appellant timely appeal then filed a notice of with this brief, appellate appellant again court. In his argued by taking the trial court had erred his juvenile adjudications into account. After initial consideration a three by judge court, panel of the this case was сertified for en banc banc, Following reargument review. before the court en appellant granted Commonwealth were leave to file supplemental addressing legality prison briefs of a a minimum term of incarceration. without posture, questions
In its this case two present presents First, did the trial have authority review. no minimum term after impose prison sentence with initially considering by the minimum sentence recommended Second, guidelines? judge properly did the trial consid- computing er appellant’s juvenile adjudications when by guidelines? minimum sentence recommended We conclude that is not entitled to a new hearing. [Camp parole serve in or on shall not in case exceed six Hill] years provided by law for the crime for or the maximum term prisoner which the convicted and if such maximum sentenced years. imprisonment may be less than six The term of be terminat- ed Board of Parole in accordance with its rules regulations formally adopted. (Purdon 1964) (footnotes omitted).
Pa.Stat.Ann. tit. §§ Ohlinger, See also A.2d 25 Commonwealth v. (1985) statute). (interpreting *6 I. failing to by trial erred asserts the
Appellant argument His principal minimum for a sentence. provide as summarized follows. may be Youth Act under the Offenders Appellant was sentеnced of a minimum sentence. See imposition prohibits which supra). (cited How- 485 61 Pa.Stat.Ann. §§ Sentencing ever, case is controlled by appellant’s committing a crime pleaded to Appellant guilty Guidelines. 1986; took effect Sentencing Guidelines on June all committed on or applied 1982 and to crimes on July Therefore, 303.1(d). 204 Pa. after date. Code § obliged Sentencing the 1982 Guidelines judge was follow determining appellant’s punishment. when ranges minimum sentences The established guidelines 303.9(a) (“All for criminal offenses. See 204 Pa. Code § ranges sentence are months of minimum confine- guideline Act, ...”). a prohibits ment Youth The Offenders Guidelines, sentence, and 1982 Sentencing minimum sentence, minimum are in conflict. which authorize a conflict, simply order to resolve this should adopted of recently have followed the more —the Thus, sentencing schemes.5 the 1982 competing the two Act, Youth Sentencing displaced the Offenders Guidelines provided by the special and the indeterminate sentence6 Youth Act was not a valid alternative. A. not meritori- argument
We find that outlined above is However, appellant’s merits of reaching ous. before claim, in waiver are appealability a few words about order. passed was amended
5. The Youth Offenders promul- Sentencing were part The Guidelines in 1951 1953. by legislature in gated in 1982 a commission established to describe a sentence 6. We use the words “indeterminate sentence” of confinement. a definite minimum term without cases, As all must determine we at the outset appellant’s whether the issue concerns a discretion or ary aspect legality of sentence his sentence. significant There are between appellate two distinctions treatment of claims and legality discretionary claims. First, challenge of a sentence legality may be appealed (Pur as of right. 9781(a) Pa.Cons.Stat.Ann. § 1982). challenge don A to a discretionary aspect of a unless the appearance sentence is not allowed there is of a imposed question substantial is not appro priate under the Code. 42 Pa.Cons.Stat.Ann. 9781(b); Tuladziecki, see Pa. Second, to the challenge of a legality *7 sentence can be waived. Wallace, never v. Commonwealth 255, 368 533 A.2d A Pa.Super. challenge 1051 to a of sentence discretionary aspect may waived if it is be not in the trial properly appellant’s raised court and in brief Tuladziecki, to this court. supra; See Commonwealth v. Krum, 511, (1987) (en 367 533 Pa.Super. banc). A.2d 134 appellant’s
We find
implicates
that
first
issue
A
legality
legality
his sentence.
issue is
essentially
claim that
court
did not have
to
jurisdiction
impose
the sentence
it handed
which
down. Commonwealth v.
Hartz,
267, 279,
1139,
(1987)
367 Pa.Super.
532 A.2d
1145
(en banc)
P.J.,
(Cirillo,
concurring);
v. To
Commonwealth
lassi,
(1982);
303 Pa.Super.
A trial has to ordinarily jurisdiction impose within the range punishments which is which the legislature authorized for the defendant’s has crime. Appellant that the Assembly concedes General authorized appellant’s indeterminate sentences for individuals position when it the Youth Act. approved Offenders How- ever, appellant later Assembly maintains General prohibited revoked this authorization and indeter- implicitly
427 which created a by passing legislation sentences minate charged commission with that sentencing commission 42 guidelines. Pa. developing sentencing See the task of 1987). (Purdon Supp. & 2151-2155 1981 Cons.Stat.Ann. §§ correct, the later action Assuming appellant were re- legislature authorizing implicitly by the sentencing provision of the Youth the indeterminate pealed Act, then trial would not have had the an indeterminate sentence under the Youth impose power argument question calls into Appellant’s Offenders Act. trial court. jurisdiction present dispute heart of the case is a over At the Smith was in the sentence which received whether Thus, permitted. argument legislatively appellant’s fact as an of his sentence legality must viewed attack on waived. right as of and which cannot be appealable Pa.Suрer. Craig, v. Commonwealth Cf. (1983)(claim Sentencing Code A.2d 1311 n. 6 waiver); subject not prohibits indeterminate sentence Shoemaker, 242 n. (1982), Pa. grounds, 669 n. 4 A.2d rev’d other (1983) (same). conclude that We therefore review. appellate first issue is suitable appellant’s B. *8 and the insists that the Youth Offenders Act
Appellant conflict, in and that a trial Guidelines are We cannot ac- guidelines. court must sentence under the and the this find that the Act cept argument because we guidelines easily be reconciled. may con- scope sentencing guidelines
The are and effect Pennsyl- 42 of the by trolled sections 2154 and 9721 of title part: in provides vania Consolidated Statutes. Section 2154 Sentencing] shall [Pennsylvania The Commission guidelines for within the limits estab- adopt be by by lished which shall considered law in for felonies determining appropriate by misdemeanors a defendant. and committed (Purdon 1987). Supp. Pa.Cons.Stat.Ann. 1981 & authority Pursuant to its the Commission 303.1(d) adopted guidelines section of the which states: 22, 1982, “This shall take effect on chapter July apply and committed to all offenses after that date.” practical guidelines, As for the effect of the section 9721(b) part: in provides guidelines
The court shall also consider any for sen- tencing adopted by Pennsylvaniа Commission on Sen- tencing taking pursuant (relat- effect to section 2155 ing to for publication sentencing). every case in the court a sentence imposes felony for a or misdemeanor, the court shall make as a part of the record, and disclose in court at the time of open sentenc- ing, a statement of the reason or reasons for the sentence imposed. In case the court every imposes where a sen- sentencing guidelines adopted tence outside the Sentencing pursuant Commission on to sec- (relating tion 2154 adoption guidelines for sentenc- ing) рursuant and made effective to section court shall provide contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Failure to shall comply grounds vacat- ing the sentence and the defendant. resentencing 1982). 9721(b)(Purdon 42 Pa.Cons.Stat.Ann. § 9721(b) general provisions; Sections 2154 are broad designed were they proper procedures establish for sen- tencing all defendants a felony who committed or misde- hand, July meanor after 1982. On the other the scope of the Youth considerably narrower. Section 483 of the Act provides:
Any court this criminal exercising law, jurisdiction, lieu of sentence now provided by may sentence to Camp Correctional [State Institution] criminal, Hill any male between the ages of fifteen twenty-one years previous- and not known to have been ly sentenced to a penitentiary State this or other state or The board of trustees of said country.
429 and take into all male [Camp institution shall receive Hill] aforesaid, legally of the class who shall be prisoners, Provided, however, as aforesaid: sentenced on conviction any shall not sentence to said school That such court or secоnd murder or degree convicted person of first penalty crime where the other fixed life imprisonment. (footnote omitted) (emphasis 483 add- tit.
Pa.Stat.Ann. statute ed). specialized clear that the Act was a It is thus to a of defendants exclusively subcategory related needs, believed, it was could best be rehabilitative whose Hill Camp facility. at the met incarceration apparent an clash between deal in this case with We 9721(b) sections 2154 statutory provisions, general section 483 of title statutory provision, special title and a circumstances, we must consult section these 61. Undеr Act in order to ascertain Statutory Construction 1933 of the in provides part: 1933 legislature. Section the intent of in a statute shall be general provision Whenever or another the same special provision conflict with a construed, possible, if so that statute, shall be the two to both. may given effect be 1987) (Purdon (emphasis Supp. 1 Pa.Cons.Stat.Ann. § A.2d 460 Pa. added). Yerger, Appeal See also intention of (1975) (in manifestly contrary absence must be conflicting statutes legislature, apparently two operate); allowed to Pekular construed so that both are 276, 288, 513 A.2d Eich, construe the stat- this we shall principle, accordance with may each. This given to may at issue so that effect be utes following viewing legislation this accomplished by manner. 9721(b) judge require
Sections 2154 the minimum the defendant within consider Yet, the sentencing guidelines. range specified by of sentence a judgment to announce was not bound judge had long As as the range. guideline within sentence, he imposing merits of weighed the *10 option section 483 of the provided by free to choose the was he an repeal; to its could send prior Youth Offenders Act Hill mini- specifying to without a eligible Camp defendant remaining judge’s only confinemеnt. The period mum of statement, to pursuant to a section obligation supply was guide- from the 9721(b), why of reason he had deviated the Act. lines sentenced under the Youth and is consistent with interpretation This on the in commentary guidelines Com- Supreme Court’s Sessoms, Pa. monwealth v. Sentencing the 1982 Guidelines. See invalidated
Sessoms that even emphasized The Court also supra. Sessoms re- guidelines, of the trial courts before invalidation powers. The discretionary sentencing majori- tained broad opinion states: ty impose has no to a sentence con- “duty”
[T]he [Pennsylvania Commission appropriate by sidered only must be “considered” Sentencing]. guidelines The than mere such consideration is more and, to ensure that departure must its reasons for fluff, explain the court them____ in courts say directing that may from We a as must consider guidelines, just they consider these in though imposing non-exclusive factors listed number has no more than direct legislature done probation, the of the Commission’s work. the courts take notice that 377, 532 A.2d Pa. at Sessoms, cannot view the we light language this having as divested Guidelines the Youth Offenders authority under court of its promul- guidelines were Act. Between the time that a valid the Act remаined repealed, gated and responsibil- A could fulfill his alternative. 1) by: the Act consider- guidelines under both ities range suggested by guide- minimum sentence ing the deviating lines; 2) his reasons stating on record a Act; 3) imposing applying from the Indeed, term of confinement. a minimum without the trial court did the case sub is what precisely that judice. trial not exceed the limits find that the court did
We minimum failing give appellant power by its appellant’s Accordingly, judg we conclude sentence. illegal.7 not ment of sentence is
C.
first
an
has
case
not the
This
minimum term of con-
sentence without a
asserted
*11
Shoemaker, 502
is
In
v.
finement
invalid.
Cоmmonwealth
(1983),
Pennsylvania Supreme
502 Pa. at did Although why the Court not elaborate the reason precedence Youth took section over Shoemaker is 9756(b) Code, the result in consistent employed opinion. in this As analysis with case, Shoemaker general instant involved a clash between sentencing statute, 9756(b), and a of a section provision statute, the Youth Offenders Act. special sentencing Therefore, Shoemaker implicated section 1933 of the Statu- The 1933 is as tory Construction Act. full text section follows: provision in a statute shall be general
Whenever a another special provision conflict with a the same or construеd, statute, possible, if so that the two shall be conflict, If may given effect to both. between irreconcilable, special provisions provisions two as an to the prevail exception shall and shall be construed *12 provision shall be general provision, general unless the manifest intention of the enacted later and it shall be the provision pre- shall Assembly general General such vail. that, in in
Shoemaker judice differs from the case sub Shoemaker, possible give it not effect to both was As and we Youth Offenders Act another law. noted, give to both the may effect judge have Act by considering guidelines’ and the Youth Offenders There- minimum and then the Act. range an fore, does not irreconcilable present the instant case hand, is in Youth Offenders Act conflict. On the other Youth 9756(b) of the direct conflict with section Code: minimum impose no the court allows 9756(b) to im- sentence; actually directs the court section Thus, an irreconcilable conflict a minimum sentence. pose Shoemaker, necessary in and it was to choose present was Act and applying the Youth Offenders applying between 9756(b), general sentencing provision. section Statutory section 1933 of the Construction Under exists, Act, a special provi an irreconcilable conflict where prevail general provision will over a of a sion of statute 1) general provision subsequently unless: was statute enacted, 2) legislature had indicated that the clearly sec given priority. Although should be general provision 9756(b) long enacted after the Youth Offenders tion was Act8, not indicate that the former legislature clearly did Thus, ruled, as the Court given priority. should be in Shoemaker by sentencing did not err under the Youth Offenders Act. Shoe- we note that both the instant case and
Finally, maker Common- are consistent this court’s decision in with Williams, 312, wealth (1986). Williams, the defendant was convicted armed and sentenced to an indeterminate term under the robbery Act. appealed, Youth Offenders The Commonwealth reversed, ground this court on the the trial court applied should have section 9712 Code. provides part: Section person who is convicted court of this Common- Any shall, person if the robbery visibly wealth ... ... of- possessed during a firearm the commission of the fense, sentenced to a minimum term of at least five pro- other notwithstanding any confinement years total contrary. this title or other statute to the vision of (Purdon 1982). Unlike the Pa.Cons.Stat.Ann. § and in the Shoemaker provisions at issue statutory 9756(b) transferred 8. The text of section was enacted in 1974 Pennsylvania Statutes to title 42 of from title 18 of the Consolidated 30, of Dec. Consolidated Statutes in 1980. See Act 1; 401(a). Act of Oct. P.L. § P.L. No. *13 century. during the nineteenth The Youth Offenders Act was enacted 1, See, supra. 434 case, plain clearly the text of section 9712 indicates
instant intended limit the legislature application prior statutes, such as the Youth Offenders Act. Thus, vacating court was correct judg- the Williams remanding under the Act and for imposi- ment of sentence tion of minimum sentence. a summary, Shoemaker and Williams are consistent that the trial court in the sub conclusion case
with the authority appellant to sentence under Youth- judice had Therefore, allegation appellant’s Act. first ful Offenders merit. error is without
II. error, allegation appellant As maintains his second erroneously juvenile adjudications considered judge the trial wrong prior record when calcu- applied and thus score lating sentence under 1982 Guidelines. a though judge actually This is not moot even the trial claim Act. the Youth Offenders As we sentenced under noted, 9721(b)of the court to requires have section the Code This has sentencing guidelines. provision been consider the directing the trial to ascertain interpreted as range state correct departing guide- from range record before 369, 373, Sanchez, Pa.Super. 372 lines. v. Commonwealth 842; Johnakin, 348 840, v. Pa.Su- 539 A.2d Commonwealth 620, (1985); v. 502 A.2d 623 Commonwealth per. Neverthe- 476 A.2d Pa.Super. Royer, court on this basis. less, cannot reverse we trial, miscalculated defend A claim that aspect of implicates discretionary ant’s record score prior Billett, Pa.Super. sentencing. Commonwealth v. Woodward, 368 (1988); v. Commonwealth 535 A.2d (1987); Pa.Super. 328, 331, (1987) 531 A.2d
Tilghman, (I)(A) opinion, of this (en banc). As we noted section discretionary aspect of right from a appeal *14 Moreover, challenging claim a discretion- any not absolute. to waiver. subject of sentence is aspect ary discretionary reach the merits of a sen In order to issue, part inquiry.9 court must conduct a three this tencing issue was First,, appellant’s properly must find that we 1410. in the trial court. See Pa.R.Crim.P. Sec preserved ond, appellant find that the has filed a brief with we must does not contain a fatal defect. See this court which Tuladziecki, 513 Pa. Commonwealth Third, 2119(f). (1987); ap we must find that Pa.R.App.P. of a “appearance issue substantial pellant’s presents from is not appealed appropri question” Sentencing ate under the Code. Pa.Cons.Stat.Ann. 9781(b); Tuladziecki, supra.10 see §
Although appellant properly preserved the discretion court, in the trial his brief to this court ary sentencing issue Appellate Rule of Procedure is defective. 2119(f) forth in his appellant directs the “set brief upon the reasons relied concise statement of allowance of sen appeal respect discretionary aspects of with to the 2119(f) does not contain a Rule Appellant’s tence.” brief 2119(f) Rule statement. This court will overlook a violation defect, to the appellee object has failed to Com where case, however, Krum, In this supra. monwealth v. to the defect. specifically objected Appel- part inquiry in addition to the initial determination we 9. This three every appellant timely has filed a must make appeal. case that notice Pa.R.App.P. See 902. obliged steps appellate three of this 10. An court is not to address the inquiry any particular Code order. Section 9781 of granted provides appeal may that discretion “[allowance appears appellate there is a substantial court where it of question appropriate imposed that the sentence is not [the added). (emphasis Sentencing Thus, 42 Pa.Cons.Stat.Ann. Code]." appellate whether court could determine at the outset grounds consideration of a claim is barred on the Alternatively, appearance question. no of a substantial there is appellate properly inquire appellant court could first whether has brief; adequate appellate preserved if the issues and filed an complied requiremеnts, appellate could has not with these considering appeal from the merits of the as a sound then refrain 9781(b). afforded section exercise of the discretion 3; Appellee Brief for at 10 Supplemental Brief at 6 n. lee’s Therefore, discretionary will not aspect we review sentence.11 appellant’s is affirmed. of sentence judgment The KELLY, J., concurring opinion. files KELLY, concurring: Judge, that the Youth Offenders agree majority I with the *15 of the repealed by adoption not impliedly was agree that a sentence under the Youth I also Guidelines. is guidelines, is a sentence “outside” thе Offenders Act 42 requirement of Pa.C. to the written statement subject 303.1(h), 204 and is reviewable 9721(b) and Pa.Code S.A. § 9781(c)(3). See Common- 9781(b) 42 and Pa.C.S.A. § 371, Felix, 145, 4,n. v. Pa.Super. 372 154 539 A.2d wealth (1988). n. 4 375 raise 1) that: if the Commonwealth fails to agree
I do not Pa.R. comply failure to with challenge appellant’s to an 2119(f), is waived and will be procedural defect A.P. and, 2) properly if the raises ignored; Commonwealth Pa.R.A.P. appellant’s comply to failure to with challenge an aspects of 2119(f), challenge discretionary to the appellant's Those be deemed have been waived. sentence must this unduly and restrict Court’s pronouncements improperly the rules of discretionary authority to enforce inherent to decide in our sound discretion sponte, sua procedure in a to a defect is response procedural the proper what Zeitlen, 366 Pa.Su- v. particular case. See Commonwealth J., 900, (1987) 78, 81-86, (Kelly, joining 902-04 530 A.2d per. Graham, 372 v. see Commonwealth also concurring); (1988); Common- 367, 838, 365, A.2d 839 Pa.Super. 539 Felix, at 539 A.2d at supra, v. Pa.Super. wealth 372 104, 107, Douglass, Pa.Super. 370 Commonwealth v. 376; Pickford, v. Commonwealth (1988); A.2d 1174 535 note, however, precise seeks claim which We that the 11. length rejected in Commonwealth recently at discussed raise Billett, supra. Woodward, v. supra. Commonwealth v. See also
437 (1987) (Kel- 1348, 1356-57 536 A.2d Pa.Super. 370 dissenting). J., concurring and ly, appeal case, deny I would allowance instant In the 2119(f), with Pa.R.A.P. compliance for remanding without in con- contention, court erred that the trial appellant’s as guideline by applying determined ranges sidering guideline points prior juvenile record score giving prior provisions this Court rejected by been previously has adjudications, 363, 534 A.2d Woodward, Pa.Super. v. Commonwealth supra, v. Pickford, Commonwealth Cf. 1356; accord A.2d at 539 A.2d at Graham, Pa.Super. at supra, the discretion- from However, appeal I agree as frivolous, in the affirm- I concur of sentence aspects ary of sentence. judgment ance
544 A.2d *16 COMMONWEALTH MILLER, Appellant. Charles C. Pennsylvania. Superior Court 14, 1988. March Submitted 6, 1988. July Filed