Commonwealth v. Wagner , 702 A.2d 1084 ( 1997 )

CERCONE, President Judge Emeritus:

This is a consolidated appeal from the judgment of sentence imposed after appellant pleaded no contest to two counts of indecent assault.¹ We vacate the judgment of sentence and remand for resentencing.

Appellant was charged with two counts of indecent assault, one count of indecent exposure, and one count of aggravated indecent assault. The charges arose out of two incidents involving appellant, a van driver for handicapped students at Edinboro University, and the victim, a handicapped student. Appellant pled no contest to the two charges of indecent assault, as well as to a count of indecent exposure. A charge of aggravated indecent assault was nolle prossed. Appellant was sentenced to consecutive terms of one to two years incarceration on the indecent assault charges. The charge of indecent exposure merged for sentencing purposes. On appeal, appellant raises three issues:

A.Whether the lower court abused its discretion in failing to provide due consideration to his lack of a juvenile record, his prior record score of zero, his educational background, his positive behavior while incarcerated, and his remorse, as mitigating factors in imposing sentence?

B. Whether the lower court abused its discretion in imposing the statutory maximum sentence for the charge of indecent assault where the conduct, although unlawful, was relatively minor compared to other conduct comprising the crime of indecent assault?

C. Whether the lower court abused its discretion in imposing the statutory maximum sentences on each respective criminal count when there were insufficient aggravating circumstances to legally support said sentencing scheme and where the sentencing court failed to make a legally sufficient contemporaneous statement on the record and where the court advanced reasons for imposing a sentence in the aggravated range and then imposed sentence outside of the guidelines?

Brief for appellant, at 3.

We must first determine if appellant has raised a substantial question justifying our review of the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b)(appel-late court may at its discretion grant allowance of appeal where it appears there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code). A substantial question will be found where appellant advances a colorable argument that the trial judge’s actions were inconsistent with a specific provision of the sentencing code, or contrary to the fundamental norms underlying the sentencing process. Commonwealth v. Losch, 369 Pa.Super. 192, 201 n. 7, 535 A.2d 115, 119 n. 7 (1987).

An allegation that the sentencing court failed to consider or did not adequately consider certain factors does not raise a substantial question that the sentence imposed was inappropriate. Commonwealth v. Cruz-Centeno, 447 Pa.Super. 98, 668 A.2d 536 (1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996). A claim of excessiveness of sentence does not raise a substantial question where the sentence imposed is within the statutory limits. Id. The sentences imposed here were within the statutory limits. See 18 Pa.C.S.A. § 106(b)(7)(maximum sentence for misdemeanor of second degree is two years). However, a claim that the sentencing court did not adequately explain its reasons for sentencing outside of the sentencing guidelines does raise a substantial question which may be reviewed on appeal. Commonwealth v. Impellizzeri, 443 Pa.Super. 296, 661 A.2d 422 (1995), appeal denied, 543 Pa. 725, 673 A.2d 332 (1996).

We find that appellant stated a substantial question when he alleged that the sentencing court failed to make a legally sufficient contemporaneous statement on the record when imposing this sentence outside the sentencing guidelines. Therefore, we will review this aspect of appellant’s appeal. The sentencing court is permitted to deviate from the sentencing guidelines; however, the court must place on the record its reasons for the deviation. 42 Pa.C.S.A. § 9721(b); Commonwealth v. Byrd, 441 Pa.Super. 351, 657 A.2d 961 (1995). In sentencing outside of the guidelines, the court must demonstrate that it understands the sentencing guidelines ranges. Id.; Commonwealth v. Johnson, 446 Pa.Super. 192, 666 A.2d 690 (1995); Commonwealth v. Frazier, 347 Pa.Super. 64, 500 A.2d 158 (1985); Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984). “Where the trial judge deviates from the sentencing guidelines ... he must set forth on the record, at sentencing, in the defendant’s presence, the permissible range of sentences under the guidelines and, at least in summary form, the factual basis and specific reasons which compelled the court to deviate from the sentencing range.” Commonwealth v. Royer, 328 Pa.Super. at 70-71, 476 A.2d at 457.

In the instant ease, the court, at the sentencing hearing, indicated that the maximum sentence for the offense of indecent assault was two years. N.T., August 12, 1996, at 26. The court stated that the victim’s “vulnerability, her handicap,” and appellant’s “opportunity to victimize her” took the offense “out of what would be the standard range and clearly moves it in the Court’s mind to an aggravated range.” Id. The court set forth various other reasons for “imposing a significant incarceration because I find this to be within the aggravated range.” Id. The court then imposed a sentence of a minimum of one year and maximum of two years incarceration. Id. at 27-28.

The sentencing guidelines form contained in the certified record indicates that for the offenses of indecent assault, appellant had an offense gravity score of four and a prior record score of zero. Under the sentencing guidelines for such scores, the standard range of minimum sentence is restorative sanctions (non-confinement sentencing options such as community service or probation) to three months. The aggravated range of minimum sentence for the above scores is up to three months additional incarceration, or up to six months minimum incarceration for the aggravated range. 42 Pa. C.S.A. § 9721, 204 Pa.Code § 303.16. Here, the lower court sentenced appellant to a minimum prison term of twelve months.

The sentencing transcript reveals that the lower court did not set forth, in appellant’s presence, the permissible range of sentences under the guidelines. In a similar case, where the sentencing court imposed a sentence outside of the guidelines, the Superior Court held that

while the sentencing court did provide reasons for the sentence imposed, these reasons were advanced to support a sentence in the aggravated range. Nowhere did the court indicate that it was in fact sentencing Appellant outside of the guidelines and provide a contemporaneous statement of its reasons for such deviation.

Commonwealth v. Byrd, supra, 441 Pa.Super. at 357, 657 A.2d at 964. Similarly, here, the lower court seemed to indicate that it was imposing sentence in the aggravated range of the guidelines. The court did not, however, set forth the permissible ranges of sentences under the guidelines, nor did it indicate that it was sentencing appellant outside of the guidelines. Under the above-cited authority, it is therefore necessary to vacate the judgment of sentence and remand for resentencing.

Judgment of sentence vacated; case remanded for resentencing in accordance with this opinion; jurisdiction relinquished.

BROSKY, J., files a concurring opinion.

1 . 18Pa.C.S.A. § 3126(a)(1).