Commonwealth v. Hartz

DEL SOLE, Judge:

Appellant appeals the judgment of sentence imposed following his guilty plea to charges of Unlawful Restraint, Recklessly Endangering Another Person, Terroristic Threats and Aggravated Assault. The issues raised on appeal relate to sentencing matters. Appellant first alleges five bases for finding the deadly weapons enhancement provisions of the Sentencing Guidelines, 42 Pa.C.S.A. § 9721, 204 Pa.Code Ch. 303, unconstitutional. In addition, he maintains the sentence imposed was excessive; the sentencing judge failed to state upon the record the reasons for the sentence; and, the sentencing judge failed to consider the circumstances of the crime and the history, character and condition of the Appellant. For the following reasons we find we cannot reach the merits of these claims and, therefore, we affirm the judgment of sentence.

Appellant was first sentenced on November 10, 1983. At that time, the court imposed a total sentence of 18 to 36 months incarceration, 7 years probation and a $1,000.00 fine. The court also ordered Appellant to pay the costs of prosecution and to make restitution in the amount of $20.00. On November 17, 1983, Appellant filed a timely Motion to Reconsider and Modify Sentence. The court granted Appellant’s motion and on November 22, 1983, it vacated its previous sentence and imposed a sentence modifying the prison term to 16 to 36 months and the probationary period to 5 years. At the close of the second sentencing hearing, Appellant was informed by the court that he had ten days in which to file an application with the court for reconsideration of his sentence. Nevertheless, Appellant failed to file such a petition and, instead, filed an appeal from the November 22nd sentence with this court on December 11, 1983.

This Court has had occasion to consider a similar set of circumstances in Commonwealth v. Cottman, 327 Pa.Super. 453, 476 A.2d 40 (1984). Therein, it was noted:

Appellant correctly filed a motion to modify his original sentence, as required by Pa.R.Crim.P. 1410. The principal purpose of this rule is to provide the sentencing court with the first opportunity to modify its sentence and to correct any errors that may have occurred at sentencing. Commonwealth v. Burtner, 307 Pa.Super. 230, 235, 453 A.2d 10, 12 (1982), and cases cited therein. In the absence of such a motion, a defendant may only seek appellate review of the legality of his sentence. Commonwealth v. DeCaro, 298 Pa.Super. 32, 444 A.2d 160 (1982). Failure to present claims of abuse of discretion to the sentencing court constitutes waiver. Commonwealth v. Boyce, 304 Pa.Super. 27, 450 A.2d 83 (1982); Commonwealth v. Dumas, 299 Pa.Super. 335, 445 A.2d 782 (1982).

Although appellant did afford the sentencing court the opportunity to adjust its initial sentence, he failed to provide an opportunity to that court with respect to the amended sentence, which was imposed following the vacation of the initial sentence. The issue raised instantly alleges that error was committed at the second sentencing hearing. Since appellant’s initial sentence was vacated and no motion to reconsider appellant’s current sentence was filed, this issue is waived.

Id., 327 Pa.Super. at 460-461, 476 A.2d at 44.

For the reasons set forth in Commonwealth v. Cottman, we find waived Appellant’s claims of error, with the exception of the constitutionality of § 9721.¹ The constitutional questions raised by Appellant are viewed as challenges to the legality of his sentence and are not waived for failure to be included in a Motion for Reconsideration. Commonwealth v. Cooke, 342 Pa.Super. 58, 492 A.2d 63 (1985).

Although the constitutional questions raised in this appeal are not waived, for other reasons we are unable to consider these claims. Appellant seeks our review of the constitutionality of the deadly weapon enhancement section of the Sentencing Guidelines. The record makes clear, however, that Appellant was not affected by the potential applicability of § 9721.

Appellant’s counsel specifically asked the sentencing court whether it added the enhancement provisions when calculating Appellant’s sentence. The court responded:

THE COURT: It’s considered. The guideline speaks to enhancement.

Frankly, I don’t intend specifically attach it to the sentence that I impose. Well, remember what these charges started out being when we were talking about criminal attempt homicide and kidnapping, and thing like that. I think an eighteen-month period of imprisonment is rather modest under the circumstances, although we appreciate those charges are not before us. They are factual contentions out of which this criminality comes, and I think with that in mind, whether or not we had a weapons enhancement, I can’t see a minimum period of certainly any less than sixteen months in any turn of events.

So I rather figure it’s in there, but don’t intend to separately set it forth in any way because I think whether it existed or not, my sentence would be unchanged. (S.T. 11-22-83 at 4).

Where a person is not prejudicially affected by the statute in the case under review, that individual is not entitled to be heard on the question of the statute’s alleged unconstitutionality. Commonwealth v. Samuels, 354 Pa. Super. 128, 146-147, 511 A.2d 221, 230 (1986). In the instant case, the court, by its comments, reveals Appellant suffered no prejudice by operation of the statute.

Because of the factual circumstances in this case, we decline to reach the issue of the constitutionality of § 9721.² In making this determination we are mindful of the “well established proposition that a court is not to rule on the constitutionality of a statute unless it is absolutely necessary to do so in order to decide the issue before it”. Commonwealth v. Samuels, supra.

Judgment of sentence affirmed.

CAVANAUGH, McEWEN and BECK, JJ., join. CIRILLO, President Judge, concurs in an opinion in which BROSKY and JOHNSON, JJ., join. KELLY, J., concurs in an opinion. TAMILIA, J., dissents in an opinion.

1 . Commonwealth v. Broadie, 339 Pa.Super. 394, 489 A.2d 218 (1985) cited in the dissenting Opinion of Judge Tamilia, holds, as did Commonwealth v. Cottman, supra., that a petition to modify sentence must be filed within ten days of the imposition of a modified sentence in order to preserve sentencing issues. Broadie, without citing Cottman, went on to provide that this procedure would become effective in 60 days. However, this language in Broadie was merely superfluous. The retroactive/prospective analysis in Broadie was unnecessary since this court had already ruled in Cottman that Rule 1410 required a new motion for reconsideration to be filed when a defendant is resentenced. Since the court in Cottman was interpreting an existing rule and not making changes in existing practice, its decision applied to all cases.

2 . In the Concurring Opinion by President Judge Cirillo, the issue of the application of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) is raised and the opinion would suggest that the appeal as it may be interpreted to be from the discretionary aspects of sentencing, should be quashed. First, the discretionary aspects of sentencing issues are not being reached since they have been waived for failure to file a second motion to modify sentence. However, it must be pointed out that the analysis in Judge Cirillo's opinion is incorrect in its application of Tuladziecki Tuladziecki, by its very nature, is a procedural requirement and the Supreme Court in that opinion stated:

The Appellant [Tuladziecki] properly preserved his challenge to this procedural violation, and for the reasons stated herein the Superior Court’s decision to overlook it must be vacated.

An analysis of the Tuladziecki case reveals that in this court, the Commonwealth was the appellant and Mr. Tuladziecki the appellee. The appellee had continued to raise an objection to the Commonwealth’s procedural violations. It was this objection which the Supreme Court stated this court should not have overlooked. However, in the instant case, the appellee has not raised any procedural objections to the method used by the appellant who raised the discretionary aspects of sentencing question. Therefore, the Commonwealth has waived this procedural violation and should the question of reviewing the discretionary aspects of sentencing been present, we would be able to exercise our discretion and determine whether or not we wish to review same. See Commonwealth v. Muller, 364 Pa.Super. 346, 528 A.2d 191 (1987—Concurring Opinion by Del Sole, J).