Commonwealth v. Rich

ROWLEY, Judge,

concurring:

I join in all of the majority’s opinion and disposition with the exception of footnote 8. Because the judgment of sentence is being vacated and the case is being remanded for resentencing under Sanchez and Royer, I find it unnecessary at this time to review any of the reasons provided by the trial court for the sentence imposed.

*387I also write separately, because the majority does not address the initial issue of whether or not appellant has set forth a substantial question in his petition for permission to appeal from the discretionary aspects of sentence, as required by 42 Pa.C.S. § 9781(b) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). In my opinion, appellant has set forth a substantial question by asserting that the sentencing court failed to evidence any consideration of the sentencing guidelines, and failed to provide any reason for deviating from them.

Finally, I agree with the majority’s determination to vacate the judgment of sentence and remand for resentencing where, as here, not only did the sentencing court not identify the applicable guideline ranges or why the sentence deviated from them, but the Commonwealth at sentencing provided the sentencing court with incorrect information concerning the maximum recommendation under the guidelines. The Commonwealth twice stated at sentencing that the applicable maximum minimum sentence in the aggravated range under the guidelines was 36 months. The Sentencing Commission Form included in the original record, reveals that the applicable maximum minimum guideline recommendation was 18 months. In light of the disparate information provided to the sentencing court and the absence of any statement from the sentencing court indicating that he was aware of the correct guideline recommendation, it is appropriate to vacate the judgment of sentence and remand for resentencing.