Com. v. Strothers, L. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAWRENCE STROTHERS :
:
Appellant : No. 1853 WDA 2017
Appeal from the Judgment of Sentence May 25, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013892-2016
BEFORE: OTT, J., MURRAY, J., and STEVENS, P.J.E.
MEMORANDUM BY OTT, J.: FILED FEBRUARY 15, 2019
Lawrence Strothers appeals from the judgment of sentence imposed on
May 25, 2017 in the Court of Common Pleas of Allegheny County following a
non-jury trial and his conviction on charges of possession of crack cocaine
with intent to deliver (PWID) and possession of a controlled substance.1 PWID
was an ungraded felony because of the small amount of drugs 2 confiscated
from Strothers at the time of his arrest. The sentencing guidelines provided
for a standard range minimum sentence of 9 to 16 months’ incarceration.
Strothers received a term of four to eight years’ incarceration. In this timely
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 Former Justice specially assigned to the Superior Court.
1 35 P.S. §§ 780-113(a)(30) and (16), respectively.
2 Strothers was in possession of 1.3 grams of crack cocaine.
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appeal, Strothers challenges the discretionary aspects of his sentence, arguing
the trial court failed to state adequate reasons on the record for issuing a
sentence in excess of the guidelines. After a thorough review of the
submissions by the parties, relevant law, and the certified record, we vacate
judgment of sentence and remand for resentencing.3
Initially, we note that Strothers has complied with the technical
requirements needed to challenge the discretionary aspects of a sentence.
Specifically, he has preserved the issue by including it is his post sentence
motion. See Post Sentence Motion, 6/25/2017. In addition, he has included
a 2119(f) statement in his appellant’s brief. See Commonwealth v.
Tuladziecki, 522 A.2d 17 (Pa. 1987). Further, his claim that trial court failed
to provide a contemporaneous statement on the record, as required by
statute, of the reasons for deviating from the guidelines provides our Court
with a substantial question proper for appellate review. See Commonwealth
v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999).
At sentencing, which occurred immediately after the non-jury trial,4 the
trial court was informed, by defense counsel, of the applicable sentencing
guideline range.
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3 The Commonwealth did not file an Appellee’s Brief in this matter. Rather, it
submitted a letter stating agreement with Strothers’ argument that
resentencing was required. See Letter from Commonwealth, 9/11/2018.
4 Strothers waived his right to a presentence investigation. See N.T.
Trial/Sentencing, 5/25/2017, at 65.
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Defense Counsel: I mean, the guidelines I think are, in the
standard range, are 9 to 16 months,[5] something like that. In the
mitigated range it’s even less than that.
N.T. Trial/Sentencing, 5/25/2017, at 69.
The trial court then issued the sentence, stating, in toto:
Trial Court: All right. Okay. All right. This Court having found
Mr. Lawrence D. Strothers guilty of possession with intent to
deliver a controlled substance, an ungraded felony, I’m going to
sentence you to 4 to 8 years, State Correctional Institution, in
view of the fact that you were on parole. You can make that
argument either way. You could accept Mr. Maloney’s that that’s
an aggravated factor or Ms. Frick’s argument that this wasn’t a
significant amount of cocaine, 1.3 grams.
Id. at 70.
Strothers’ minimum sentence, 48 months’ incarceration, is 29 months
longer than the highest minimum aggravated range sentence. Therefore, the
sentence imposed is well outside the guidelines. There are relevant statutory
requirements when imposing a sentence outside the guidelines, which are
found at 42 Pa.C.S. § 9721(b). Specifically,
[i]n every case in which the court imposes a sentence for a felony
or misdemeanor, modifies a sentence, resentences an offender
following revocation of probation, county intermediate
punishment or State intermediate punishment or resentences
following remand, the court shall make as a part of the record,
and disclose in open court at the time of sentencing, a statement
of the reason or reasons for the sentence imposed. In every case
where the court imposes a sentence or resentence outside the
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5 Strothers had a prior record score of 5 and offense gravity score of 4.
Pursuant to the guidelines, a minimum aggravated range sentence could be
as high as 19 months. See Sentencing Matrix, 7th Edition, Amendment 3
(9/25/2015).
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guidelines adopted by the Pennsylvania Commission on
Sentencing under sections 2154 (relating to adoption of guidelines
for sentencing), 2154.1 (relating to adoption of guidelines for
county intermediate punishment), 2154.2 (relating to adoption of
guidelines for State intermediate punishment), 2154.3 (relating to
adoption of guidelines for fines), 2154.4 (relating to adoption of
guidelines for resentencing) and 2154.5 (relating to adoption of
guidelines for parole) and made effective under section 2155, the
court shall provide a contemporaneous written statement of the
reason or reasons for the deviation from the guidelines to the
commission, as established under section 2153(a)(14) (relating to
powers and duties). Failure to comply shall be grounds for
vacating the sentence or resentence and resentencing the
defendant.
42 Pa.C.S. § 9721(b).
Accordingly, when imposing sentence, the trial court must state its
reasoning on the record and, when imposing a sentence outside of the
guidelines, the trial court is required to provide a contemporaneous written
statement of the its reasoning.6 A failure to abide by these requirements
SHALL be grounds for vacating the sentence, and remanding for resentencing.
The requirement of Section 9721(b) to provide a contemporaneous statement
of reasons is not to be taken lightly.
In Commonwealth v. Flowers, 149 A.3d 867 (Pa. Super. 2016), the
trial court failed to comply with the requirements, and even though the trial
court placed its reasoning in its Pa.R.A.P. 1925(a) opinion, as the trial court
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6 Although Section 9721(b) appears to require both a contemporaneous oral
and written statement when issuing a sentence outside of the guidelines, case
law has allowed the sentencing court to avoid the written statement, as long
as the there is a sufficient oral statement. See Commonwealth v. Widmer,
667 A.2d 215 (Pa. Super. 1995); Commonwealth v. Royce, 476 A.2d 453
(Pa. Super. 1984).
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did instantly, a panel of our Court vacated the sentence and required
resentencing. Further, Flowers instructs:
“[a] sentencing court need not undertake a lengthy discourse for
its reasons for imposing a sentence, ... the record as a whole must
reflect the sentencing court’s consideration of the facts of the
crime and character of the offender.” Commonwealth v. Crump,
995 A.2d 1280, 1283 (Pa. Super. 2010). A “discourse on the
court’s sentencing philosophy, as it applies to the defendant
before it, is not required.” Commonwealth v. Hill, 427 Pa.Super.
440, 629 A.2d 949, 953 (1993). But “the reasons must reflect the
judge’s consideration of the sentencing code, the circumstances
of the offense and the character of the offender.”
[Commonwealth v.] Beasley, 570 A.2d [1336,] 1338 [(Pa.
Super. 1990)]; see also Hill, 629 A.2d at 953 (“Simply put, the
sentencing judge must state his or her reasons for the sentence
imposed”).
Id. at 867.
Similarly, in Commonwealth v. Rodda, 723 A.2d 212 (Pa. Super.
1999), upon vacating judgment of sentence, a panel of our Court stated:
we hold that when imposing sentence, a trial court has rendered
a proper “contemporaneous statement” under section 9721(b) of
the Sentencing Code, so long as the record demonstrates with
clarity that the court considered the sentencing guidelines in a
rational and systematic way and made a dispassionate decision to
depart from them.
Id. at 217.
As quoted above, the certified record reflects the trial judge merely
stated that Strothers had been on parole. The trial court then, somewhat
confusingly, stated, “You could make that argument either way. You can
accept Mr. Maloney’s that that’s an aggravated factor or Ms. Frick’s argument
that this wasn’t a significant amount of cocaine, 1.3 grams.” N.T.
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Trial/Sentencing, 5/25/2017, at 70. This abbreviated commentary does not
reflect the required “rational and systematic” consideration required when
departing from the guidelines.
Because the requirements of section 9721(b) have not been met, we
are required to vacate the judgment of sentence and remand for resentencing
in compliance with the rules. This decision is not meant to be interpreted as
commentary or analysis of the length of the sentence imposed. This decision
notes only that the trial court must fulfill its duty to provide a
contemporaneous statement of reasons from deviating from the guidelines at
the time of imposition of sentence. Resentencing shall take place within 90
days of the return of the certified record to the trial court.
Judgment of sentence vacated. This matter is remanded for
resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/15/2019
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