Commonwealth v. Tilghman

CIRILLO, President Judge,

concurring:

I concur in the result, but write separately to point out that the majority seems to be perpetuating a standard for determining when to allow an appeal of the discretionary *340aspects of sentence that the Pennsylvania Supreme Court repudiated in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

The probationary sentence under review is a legal sentence, and therefore no party may appeal it as of right. See 42 Pa.C.S. § 9781(a). Before this court may accept an appeal from the discretionary aspects of a legislatively permissible sentence, the appellant must invoke our discretionary jurisdiction by showing “that there is a substantial question that the sentence imposed is not appropriate under [the Sentencing Code].” Id. § 9781(b). In Pa.R.A.P. 2119(f), the supreme court has prescribed the manner in which an appellant must petition our court to allow a discretionary appeal of this sort:

An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.

After oral argument in this case, the supreme court held in Tuladziecki that this court had improperly allowed an appeal from the discretionary aspects of a sentence without requiring the jurisdictional statement specified by 2119(f). Thereafter, the Commonwealth in this case filed a motion to supplement its brief with a “concise statement” under 2119(f) setting forth the reasons it relied upon for allowance of appeal, and we granted that motion. The Commonwealth has now set forth in a 2119(f) statement that the sentencing court refused to consider the defendant’s prior adjudication of delinquency in calculating his “prior record score” as required by the Sentencing Guidelines, 204 Pa.Code § 303.-7(b), reprinted in 42 Pa.C.S.A. § 9721 note (1982). I agree with the majority’s decision to hear this appeal, because it appears to me that the Commonwealth’s statement demonstrates a “substantial question” that the scheme of the *341Sentencing Code as a whole “has been compromised.” See Tuladziecki, 513 Pa. at 513, 522 A.2d at 20.

However, the majority persists in stating the standard for allowance of appeal to be that:

there is a substantial question that the sentence is inappropriate if, after a brief review of the record, we are not substantially convinced that one of the following three circumstances is not before us:
(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the guidelines and the sentence is unreasonable.

At 443. This manner of searching for reasons for allowing an appeal is, in my view, contrary to the spirit of Tuladziecki, which held that this court had erroneously allowed an appeal of the discretionary aspects of a sentence even though it was outside the guidelines and “unreasonable.” See id., 513 Pa. at 516 n. 2, 522 A.2d at 21 n. 2 (Larsen, J., dissenting). Although Tuladziecki’s primary holding was that we must require a rule 2119(f) statement before allowing an appeal of the discretionary aspects of sentence, its implicit and broader holding is that compliance with the Sentencing Guidelines is not the only nor even the most important factor we should consider in deciding whether to allow an appeal. Rather, the supreme court has issued a gentle reminder that the 2119(f) requirement “furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court’s evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases,” 513 Pa. at 513, 522 A.2d at 19-20 (emphasis added), and that, in deciding whether a “substantial question” of sentencing inappropriateness exists to justify our allowance of appeal, we should consider the proprie*342ty of that sentence under “the entire Sentencing Code,” id., 513 Pa. at 513, 522 A.2d at 20, not merely under the Sentencing Guidelines.