Commonwealth v. Krum

BROSKY, Judge,

dissenting:

This appeal is from the judgment of sentence imposed after appellant pled guilty to two counts of burglary. Appellant contends that: (1) the sentencing court erred in including his juvenile adjudications of delinquency in computing his prior record score; and (2) the sentence imposed *522was excessive. Finding appellant’s claims to have been waived, I would quash.

On November 2,1984, appellant pled guilty to two counts of burglary, each carrying an offense gravity score of “6”. Appellant was 18 years old at the time of the burglaries. He had no prior adult record, but he did have a juvenile record for burglaries committed at the age of 15. Based on that record, appellant received a prior record score of “6”. He was sentenced on December 28, 1984 to two concurrent terms of four to eight years imprisonment, a sentence within the minimum (standard) range for an offense gravity score of “6” and a prior record score of “6”. Appellant, on January 7, 1985, filed a timely motion to modify sentence which the court below denied on January 17, 1985 after a hearing. This appeal timely followed.

Appellant argues that the provisions of the sentencing guidelines, see 204 Pa.Code §§ 303.1-.9, reprinted following 42 Pa.C.S. § 9721, which require a sentencing court to use certain juvenile adjudications of delinquency in computing a defendant’s prior record score, are contrary to the legislation authorizing the creation of the guidelines, see 42 Pa.C.S. § 2154(2).1 He thus concludes that the sentencing court erred in including his prior adjudications in its computation of his prior record score.

Appellant, despite his statements in his brief to the contrary, did not, however, raise this issue in his motion to modify sentence. Rather, he raised only the claim that the sentence was excessive. It is well-settled that sentencing issues not raised in a motion to modify sentence are waived. Commonwealth v. Duffy, 341 Pa.Super. 217, 491 A.2d 230 (1985); Commonwealth v. Warden, 335 Pa.Super. 315, 484 A.2d 151 (1984). The only exception to this general rule of waiver concerns sentences that are illegal per se; an issue of sentence legality is never waived. Commonwealth v. Neidig, 340 Pa.Super. 217, 489 A.2d 921 (1985). I also do *523not believe that the issue raised here by appellant is one of sentence legality.

Certainly, it is true that if appellant’s juvenile record were not considered, appellant would have a prior record score of zero and the suggested minimum (standard) range for that score and an offense gravity score of six would be 4-12 months, rather than the suggested 33-49 months range under which appellant was sentenced. The sentencing guidelines, however, do not mandate a sentence which the court must impose, but simply set forth ranges of minimum sentences which the sentencing court must consider as one of the factors in its determination of the length of sentence to impose. See 42 Pa.C.S. § 9721(b). The guideline ranges are only “mandatory” in the sense that a sentencing court must give due consideration to the minimum guideline ranges suggested for the crime at issue, and must specify reasons should it choose to impose a minimum sentence outside the suggested ranges. Thus, appellant’s claim is not that the sentence imposed is not a legal one for the crime of burglary, but only that, in reaching its decision to impose the sentence, the sentencing court relied upon an illegal factor, i.e., the guideline range that was based upon a prior record score that included appellant’s prior juvenile adjudications. In other words, appellant assumes that the sentence he received could stand if supported by the proper reasons, but argues that the sentencing court’s reasons were not proper because it relied upon an impermissible (illegal) consideration. It is, of course, well-settled that an attack upon a sentencing court’s reasons for its sentence does notraise a question of the legality of the sentence and is waived if not properly preserved.2 Commonwealth v. *524Martin, 328 Pa.Super. 498, 477 A.2d 555 (1984) (en banc); Commonwealth v. Duden, 326 Pa.Super. 73, 82, 473 A.2d 614, 618, 619 (1984); Commonwealth v. Cruz, 265 Pa.Super. 474, 402 A.2d 536, 537 (1979).

Therefore, I also must conclude that appellant has waived his claim that the sentencing court erred in including his juvenile adjudications of delinquency in computing his prior record score.

Appellant also contends that the sentence imposed was excessive. Though properly preserved in appellant’s motion to modify sentence, I would not reach the merits of appellant’s second contention.

A challenge to a sentence as excessive clearly attacks a discretionary aspect of the sentence imposed. Where a purely discretionary aspect of a sentence is being challenged, a separate statement, demonstrating that a “substantial question” is posed by the aspect under attack, must be included in an appellant’s brief before this Court may address the merits of the sentencing question posed. Pa.R. A.P. 2119(f); see also Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Appellant has not provided this Court with the separate statement required by the appellate rules, and the recent Tuladziecki decision.3 Hence, I would *525not reach the merits of appellant’s excessiveness challenge.4

*526As appellant has failed to preserve any issues for resolution on the merits, I would quash the appeal.

CIRILLO, President Judge, and POPOVICH and JOHNSON, JJ., join this dissenting opinion.

. 42 Pa.C.S. § 2154(2), as amended by Act 165 of 1986, Act of December 11, 1986, now expressly authorizes the inclusion of juvenile adjudications in the computation of prior record scores.

. My rationale herein is in accord with the views expressed in the Concurring Opinions authored by Chillo, P.J., and Kelly J. in Commonwealth v. Hartz, 367 Pa.Super. 267, 532 A.2d 1139 (1987) (en banc), as to what does, and does not, raise an issue of sentence legality. In Hartz, appellant challenged the constitutionality of the deadly weapon enhancement section of the sentencing guidelines. The constitutionality issue had not been raised in a motion for reconsideration of sentence. The Concurring Opinions held that a constitutional challenge to a sentencing provision does not raise an *524issue of sentence legality, but is an attack upon a reason for the sentence imposed. As the sentence imposed was not beyond the statutory or constitutional authority of the sentencing court, the concurrences found appellant’s challenge, that an unconstitutional reason had been considered in the computation of his sentence, to have been waived for failure to include it in a motion for reconsideration.

. The majority questions my application of the Tuladziecki decision to the matter sub judice, in light of the Commonwealth's failure to challenge appellant’s lack of compliance with Pa.R.A.P. 2119(f). It is their contention that the requirements of Rule 2119(f) are strictly procedural, and that Tuladziecki does not require the result we reach infra where the appellee has not “preserved his challenge to this procedural violation." While I do not deny that Tuladziecki comments upon Regis Tuladziecki’s preservation of his Rule 2119(f) challenge, I feel that the position taken by the majority involves an overly narrow reading of the Tuladziecki decision.

Tuladziecki also states, at p. 19:

*525So long as the Commonwealth is required at some point to demonstrate a “substantial question” in accordance with the statute to invoke Superior Court’s jurisdiction, this procedure is sound. Superior Court may not, however, be permitted to rely on its assessment of the argument on the merits of the issue to justify post hoc a determination that a substantial question exists. If this determination is not made prior to examination of and ruling on the merits of the issue of the appropriateness of the sentence, the Commonwealth has in effect obtained an appeal as of right from the discretionary aspects of a sentence. It is elementary that such an enlargement of the appeal rights of a party cannot be accomplished by rule of court. For this reason it is essential that the rules of procedure governing appeals such as this be followed precisely. (Emphasis added).

The clear import of the above does not support the position that Rule 2119(f) is strictly procedural in nature. It is a procedural rule that is ultimately jurisdictional. If the rule is not followed, this Court is placed in the position of making a post hoc determination as to whether or not a substantial question is presented, through an examination of the merits of the sentencing question at issue. This, in effect, permits an appellant to obtain appellate review as of right of a discretionary aspect of sentencing. This is precisely what the Supreme Court has forbidden. Unless an appellant strictly complies with the procedural requirements of Rule 2119(f), this Court’s jurisdiction, according to the above-emphasized language, is not invoked.

Hence, in light of my conclusion that non-compliance with Rule 2119(f) deprives this Court of jurisdiction to review discretionary aspects of sentencing, I do not find it problematic that the Commonwealth has not raised this challenge. It is well-settled that this Court may raise issues of appealability and jurisdiction sua sponte. Indiana County Hospital Authority v. McCarl’s Plumbing and Heating Co., 344 Pa.Super. 226, 228, 496 A.2d 767, 768 (1985).

. As discussed infra, I also do not find appellant’s challenge to the inclusion of juvenile adjudications in his prior record score, to be a challenge to the legality of his sentence. However, as noted infra, a challenge to the legality of a sentence cannot be waived; furthermore, a separate Tuladziecki statement is not required when an appellant attacks the legality of his sentence. 42 Pa.C.S. § 9781(a). Hence, this Court was required to determine, initially, if the inclusion of an alleged impermissible factor in the computation of a defendant’s sentence, makes that sentence illegal, or merely demonstrates an abuse of discretion on the part of the sentencing court. It was only after this determination was made that we were able to decide that appellant's first contention on appeal was waived, for failure to include it in the motion to modify sentence filed below.