Commonwealth v. Pickford

KELLY, Judge,

concurring and dissenting:

I join in that portion of the majority opinion which rejects appellant’s assertions of trial error and affirms appellant’s convictions. I dissent from that portion of the majority opinion which affirms judgment of sentence. I would remand for compliance with Pa.R.A.P. 2119(f) or, as there has been no compliance, deny allowance of appeal from the discretionary aspects of sentence.

I do not find that our Supreme Court’s recent opinion in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987) permits as simple a disposition of appellant’s challenge to the discretionary aspects of sentence as the majority opinion suggests. I do not read Sessoms, supra, to have declared that the guidelines shall in all cases be treated as *454being invalid and of “no force at all.” Majority, supra, at 453. To the contrary, the Sessoms majority strictly circumscribed its holding as follows:

This ruling is applicable to cases where the issue has been ‘properly preserved at all stages of adjudication up to and including direct appeal.’ Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983).

516 Pa. at 380 n. 2, 532 A.2d at 782 n. 2. Thus, the issue of the general invalidity of the 1982 guidelines due to the unconstitutionality of the rejection procedures followed the legislature in 1981 (hereinafter Sessoms issue) may be waived, and in such cases the guidelines would not be treated as generally invalid. See e.g. Commonwealth v. Samuels, 516 Pa. 300, 532 A.2d 404 (1987) (hereinafter Samuels, supra, Pa.1987) (addressing merits of challenge to the validity of a particular provision when Sessoms issue was not preserved); accord Commonwealth v. Hartz, 367 Pa.Super. 267, 532 A.2d 1139 (1987) (Cirillo, P.J., concurring, Brosky and Johnson, JJ., join) (challenge to the constitutionality of a guideline provision may be waived); id., 367 Pa.Superior Ct. at 270, 532 A.2d at 1140 (Kelly, J., concurring) (same).

Therefore, when the Sessoms issue has not been properly preserved, challenges to the discretionary aspects of sentence based upon alleged misapplication of guideline provisions (including challenges to the application of allegedly unconstitutional provisions) remain a proper basis for reversal, and would not be rendered moot by the Sessoms decision. 42 Pa.C.S.A. § 9781(c)(1); see e.g. Samuels, supra (Pa.1987). Logically, a sentence tainted by improper considerations is equally invalid whether it is tainted by consideration of invalid guidelines, an invalid provision of otherwise valid guidelines, or misapplication of a valid provision of valid guidelines. Accord Commonwealth v. Sessoms, supra (consideration of invalid guidelines was prejudicial error); Commonwealth v. Samuels, 354 Pa.Super. 128, 161—62, 511 A.2d 221, 238-39 (1986) (consideration of improperly increased guideline ranges was prejudicial error); rev’d on *455other grounds 516 Pa. 300, 532 A.2d 404 (1987) (Samuels, supra Pa.1987); and Commonwealth v. Dickison, 334 Pa. Super. 549, 553, 483 A.2d 874, 876 (1984) (error in application of guidelines provisions was prejudicial, even when same sentence could be imposed if the guidelines had been properly applied).

On the other hand, the Sessoms decision has a profound effect on challenges advanced under 42 Pa.C.S.A. § 9781(c)(2) and (3).1 The Supreme Court in Sessoms, supra, continued its erosion of the basis for our former dictum that “only in exceptional cases and for sufficient reasons may a court deviate from the guidelines.” 2 The majority explained:

Most important, the court has no ‘duty’ to impose a sentence considered appropriate by the Commission. The guidelines must only be ‘considered’ and, to ensure that such consideration is more than mere fluff, the court must explain its reasons for departure from them. Viewed in this manner, the guidelines are essentially a sophisticated compilation and distillation of a vast range *456of factors affecting the sentencing process in the abstract, accomplished by persons of expertise representing a broad spectrum of interests. The legislature with the governor’s approval has deemed it proper that the findings of such a body, assembled to assist it in developing and overseeing a sound sentencing system, be given practical application in individual cases as well. We may say that in directing courts to consider these guidelines, just as they must consider a number of listed though non-exclusive factors in imposing probation, the legislature has done no more than direct that the courts take notice of the Commission’s work.

516 Pa. at 377, 532 A.2d at 781.

The Sessoms opinion supports our conclusion in Commonwealth v. Darden, 366 Pa.Super. 597, 531 A.2d 1144 (1987) that:

... while the sentencing court is required to ‘consider’ the applicable guidelines, and while the reason's for any deviation from the applicable standard range of the guidelines must be in writing, the determination of whether the sentence is ‘not appropriate,’ ‘clearly unreasonable,’ or ‘unreasonable’ must be made with reference to the sentencing code as a whole, not solely with reference to the provisions of the sentencing guidelines. Commonwealth v. Tuladziecki, supra, 522 A.2d at 20; see also 42 Pa.C.S.A. 9781(b) and (c).

366 Pa.Super. at 608, 531 A.2d at 1150. (Emphasis in original). Thus, the refusal to impose (as opposed to consider) the applicable minimum sentence recommended by the guidelines, by itself, provides no basis to vacate sentence and raises no substantial question under 42 Pa.C.S.A. § 9781(b). See 42 Pa.C.S.A. § 9781(c)(2) and (3). Rather, to justify reversal, the sentence must: 1) be inside the guidelines and be clearly unreasonable considering the sentencing code as a whole; or 2) be outside guidelines and be unreasonable, considering the sentencing code as a whole.

In Commonwealth v. Taylor, 516 Pa. 21, 531 A.2d 1111 (1987), decided the same day as Sessoms and Samuels, our *457Supreme Court dismissed as moot an appeal by the Commonwealth from a judgment of sentence in which the trial court refused to apply the deadly weapon enhancement provision of the sentencing guidelines; apparently, all appeals alleging the failure to apply the 1982 guidelines are moot. It is a general rule of appellate review that an order may be affirmed for any reason, whether or not raised or assigned in support of the order in the court below;3 thus, the failure to preserve the Sessoms issue would not appear to prevent affirmance on Sessoms grounds when an appeal is taken from a judgment of sentence alleging as error the refusal of the trial court to apply the 1982 guidelines or any provision thereof. There can be no prejudicial error in the trial court’s refusal to apply invalid guidelines.

Appellant raises the following issues on appeal:

DID THE PENNSYLVANIA SENTENCING GUIDELINE COMMISSION EXCEED IT’S [sic] LEGISLATIVE AUTHORITY IN PROMULGATING SENTENCING GUIDELINES WHICH PERMIT:"
(a) The sentencing court to include juvenile adjudications, misdemeanor or otherwise, in computing defendant’s prior record score.
(b) The sentencing court to include adult convictions subsequent to said conviction by which offense occurred prior to the incident conviction.

(Appellant’s Brief at 1). Based upon the foregoing analysis of Sessoms, Samuels and Taylor, I find that neither of these challenges are rendered moot by our Supreme Court’s decision in Sessoms, supra. This case is, in this respect, analytically indistinguishable from Samuels, supra (1987). Moreover, because appellant challenges the application of the guidelines as opposed to the failure to apply the guidelines, the Taylor decision does not control.

II.

Appellant challenges a legal sentence based upon the application of guideline provisions which appellant alleges *458to be invalid; these contentions are challenges to discretionary aspects of sentence. See 42 Pa.C.S.A. §§ 9781(b), 9781(c)(1); Commonwealth v. Hartz, supra (Cirillo, P.J., concurring; Brosky and Johnson, JJ., join); id. (Kelly, J., concurring).

Under Pennsylvania law, neither the defendant nor the Commonwealth may take an appeal as of right from the discretionary aspects of sentence. Rather, “[t]he defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under [the Sentencing Code].” 42 Pa.C.S.A. § 9781(b). Our Supreme Court indicated in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), that three distinct steps must be taken to properly raise a challenge to the discretionary aspects of sentence: there must be a timely notice of appeal (see Pa.R.A.P. 902 & Note; Pa.R.A.P. 903); the challenge must be set forth in the statement of questions presented (see Pa.R.A.P. 2116(b)); and, the appellant must include in the brief, immediately preceding argument in support of the challenge, a separate, concise statement of the reasons for allowance of appeal under 42 Pa.C.S.A. § 9781(b) (see Pa.R. A.P. 2119(f)). 522 A.2d at 18-19; see also 42 Pa.C.S.A. § 9721(b); 42 Pa.C.S.A. § 9781(c)(1), (2) & (3).

In the instant case, timely notice of appeal was filed and appellant’s challenge to the discretionary aspects of sentence was set forth in the statement of questions involved. (See Appellant’s Brief at 3). However, appellant’s brief does not contain the separate, concise statement of reasons for allowance of appeal required by Pa.R.A.P. 2119(f).

While this Court has on a few occasions found substantial (therefore sufficient) compliance with Pa.R.A.P. 2119(f) where the brief contains a concise statement of the reasons for allowance of appeal either in the Summary of Argument *459or at the beginning of the Argument section, such an exception is not warranted in this case. Cf. Commonwealth v. Darden, 366 Pa.Super. 597, 602-603, 531 A.2d 1144, 1146-1147 (1987) (Summary of Argument contained a sufficient statement of reasons for allowance of appeal in a one issue appeal); Commonwealth v. Muller, 364 Pa.Super. 346, 350 & n. 2, 528 A.2d 191, 193 & n. 2 (1987) (summary of reasons for allowance of appeal at beginning of Argument section, before argument, constituted a sufficient compliance). Unlike the situation in Darden or Muller, in the instant case this Court would have to glean through appellant’s entire Argument on this issue before we would be able to construct a brief summary of the reasons why appellant believes the sentence is excessive and that the guidelines have been misapplied. (Appellant’s Brief at 23-26). This is precisely the approach Tuladziecki, supra, condemned.

The majority decline to exercise this Court’s authority to direct counsel for appellant to file a separate, concise statement of the reasons for allowance of appeal under 42 Pa.C.S.A. § 9781(b) as required by Pa.R.A.P. 2119(f). See Commonwealth v. Zeitlen, 366 Pa.Super. 78, 530 A.2d 900 (1987); Commonwealth v. Grove, 363 Pa.Super. 328, 526 A.2d 369 (1987). Although I would direct compliance with Pa.R.A.P. 2119(f), in present absence of such compliance I would find that the brief contains a substantial uncorrected procedural defect which precludes this Court from determining whether a substantial question has been presented. See Commonwealth v. Zeitlen, supra, 366 Pa.Superior Ct. at 82, 530 A.2d at 902-03 (Kelly, J., concurring); Commonwealth v. Hawthorne, 364 Pa.Super. 125, 134-135, 527 A.2d 559, 564 (1987). Consequently, I would deny allowance of appeal as to appellant’s challenges to the discretionary aspects of sentence. But see Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc ).4

*460I note, however, that I would direct compliance only with respect to appellant’s second challenge. As to the first challenge, I note that although this Court had previously opined that the Sentencing Commission lacked authority to include prior misdemeanors or juvenile adjudications in the prior record enhancement provisions of the sentencing guidelines (see Commonwealth v. Tilghman, 366 Pa.Super. 328, 531 A.2d 441 (1987) (en banc); Commonwealth v. Washington, 357 Pa.Super. 548, 516 A.2d 397 (1986); Commonwealth v. Samuels, 354 Pa.Super. 128, 511 A.2d 221 (1986)), our Supreme Court has expressly rejected this contention. Commonwealth v. Samuels, supra (Pa.1987); cf. Commonwealth v. Washington, supra, 516 A.2d at 398-408 (Kelly, J., dissenting). Thus, I find this claim to be frivolous and would deny allowance of appeal as to this issue without remanding for compliance with Pa.R.A.P. 2119(f). I note that the emphasis in Commonwealth v. Tuladziecki, supra, is on the requirement of precise compliance with the procedural rules before granting allowance of appeal. The same precision would not appear to be necessary to a disposition denying allowance of appeal. Cf. Commonwealth v. Zeitlen, supra, 530 A.2d at 905 (Kelly, J., concurring).

. Sections 9781(b) and (c) provide:

(b) Allowance of appeal. — The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.
(c) Determination on appeal. — The appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds:
(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 sentencing guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the sentence imposed by the sentencing court.

. Commonwealth v. Fluellen, 345 Pa.Super. 167, 171, 497 A.2d 1357, 1359 (1985) (emphasis in original), quoting Commonwealth v. Hutchinson, 343 Pa.Super. 596, 598, 495 A.2d 956, 958 (1985).

. See Commonwealth v. Terry, 513 Pa. 381, 404, 521 A.2d 398, 409 (1987).

. In Tuladziecki, supra, our Supreme Court held that this Court was to determine whether a substantial question was presented by reference to the Pa.R.A.P. 2119(f) statement and not by the appellant’s argument. The majority in Krum found that the failure to comply with *460Pa.R.A.P. 2119(f) is a procedural error which can be waived; the Krum majority, however, gave no indication as to how the mandate of 42 Pa.C.S.A. § 9781(b) and Tuladziecki, supra, was to be met in absence of at least substantial compliance with Pa.R.A.P. 2119(f). I remain of the opinion that, without at least substantial compliance with Pa.R.A.P. 2119(f), appellant will be unable to establish the existence of a substantial question and, consequently, allowance of appeal must be denied. 42 Pa.C.S.A. § 9781(b).