Commonwealth v. Septak

CAVANAUGH, Judge,

dissenting:

The charges to which appellee pled guilty do not involve the use of a deadly weapon nor does the factual summary presented by the Commonwealth at the guilty plea colloquy establish that a deadly weapon was used in the appellee’s presence or that he should have known of its use. For these reasons, I believe the lower court properly did not apply the deadly weapon enhancement provision of the Sentencing Guidelines and that the probationary sentence and fine imposed were reasonable deviations from the Guidelines under the circumstances. I dissent from the vacation of the sentence of the lower court and would affirm.

Appellee pled guilty to the charges of unlawful restraint, terroristic threats, and conspiracy.¹ None of these counts in the information filed by the Commonwealth alleged possession of a deadly weapon. Nor, for that matter, did the kidnapping or theft by extortion counts allege possession of a deadly weapon.² The theft count alleges a threat to shoot; no other reference to a firearm or other deadly weapon is contained in the information.

The factual summary recited by the Commonwealth at the guilty plea colloquy referred to use of a handgun in the initial abduction of the victim and during a portion of the time the victim was held at the home of a co-conspirator. There was no representation that appellee was present during the brandishing of the weapon or that he was aware of its existence and use. Appellee was present during a relatively short portion of the entire time the victim was held and pled guilty to those crimes for which he bore responsibility. It is proper that only the offenses to which appellee pled guilty be looked at in determining application of the deadly weapon enhancement provision.

The relevant portion of the deadly weapon enhancement provision is as follows:

§ 303.4(a) When the court determines that the defendant or an accomplice possessed a deadly weapon, as defined in 18 Pa.C.S. § 2301 (relating to definitions), during the commission of the current conviction offense; at least 12 months and up to 24 months confinement shall be added to the guideline sentence which would otherwise have been imposed.³

204 Pa. Code § 303.4(a), reprinted at 42 Pa.C.S.A. § 9721 (emphasis added).

The language of this section clearly requires that the “current conviction offense” is the relevant focus of inquiry for determination of application of the deadly weapon enhancement provision. This reading of the language is in accord with the meaning ascribed to it by The Pennsylvania Commission on Sentencing. “A deadly weapon enhancement is added when a weapon was possessed while committing the crime being sentenced.” Pa.C.Sent.2d at 47 (Sept. 1, 1986.) Thus, it is clear that only the offenses to which apellee pled guilty may be considered for enhancement purposes at the time of sentencing. The Commonwealth did not present any evidence that, relating to the offenses for which guilty pleas were tendered, an accomplice possessed a deadly weapon. The entire criminal episode is not the proper object of review, but only the acts to which defendant admitted guilt and which resulted in convictions. To hold otherwise results in impermissible plea enhancement rather than sentence enhancement.

The Commonwealth further contends that the lower court unreasonably deviated from the Sentencing Guidelines in imposing a too lenient sentence. I would hold that the lower court adequately articulated its reasons for deviating from the guidelines and that the reasons were legally sufficient to support the sentence imposed. Ignoring the deadly weapon enhancement, the ranges for an offense gravity of 6 and a prior record score of 0 are minimum range 4-12 months, aggravated range 12-18 months, and mitigated range 2-4 months of confinement. The lower court’s probationary sentence is not an abuse of discretion given the duration of the entire episode and appellee’s brief and accidental involvement, appellee’s background and character, employment status, family responsibilities, and avoidance of contact with co-defendants since the date of the criminal act.

I would affirm the judgment of sentence.

1 . The counts to which appellee pled guilty are as follows:

Count 2, Unlawful Restraint, Misdemeanor 1

The actor knowlingly and unlawfully restrained another person, namely Robert Johns in circumstances exposing the said other person to risk of serious bodily injury, in violation of Section 2902 of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.C.S. § 2902.

Count 3, Terroristic Threats, Misdemeanor 1

The actor, with intent to terrorize Robert Johns threatened to commit the violent crime of murder and/or aggravated assault in violation of Section 2706 of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.C.S. § 2706.

Count 5, Criminal Conspiracy, Felony 2

The actor, with the intent of promoting or facilitating the crime of the kidnapping of Robert Johns and/or the extortion of $9,000 from Robert Johns and/or his family conspired and agreed with Joseph Pokorny and/or Carl Pokorny and/or Ronald Smith and/or James Pokorny that they or one or more of them would engage in conduct constituting such crime or crimes, and in furtherance thereof did commit the overt act of threatening Robert Johns with bodily harm and/or tying him up in violation of Section 903(a)(1) of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.C.S. § 903(a)(1).

2 . The counts dropped by the Commonwealth are as follows: Count 1, Kidnaping, Felony 1

The actor unlawfully removed Robert Johns a substantial distance under the circumstances from 127 Teece Avenue, Bellevue, Pennsylvania the place where he was found, to 4525 Mount Troy Road Extention, Pittsburgh, Pennsylvania with the intent to hold him for ransom or reward, in violation of Section 2901(a)(1) of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.C.S. § 2901(a)(1). Count 4, Theft By Extortion, Felony 3

The actor intentionally obtained or withheld property, namely, $10,-000 belonging to William Johns by threatening to inflict harm, namely, threatening to shoot Robert Johns and/or otherwise injure him if he did not pay Joseph Pokorny $9,000 or $10,000 which wold not have benefited the actor, in violation of Section 3923(a)(7) of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.C.S. § 3923(a)(7).

3 . This section was amended effective January 1, 1986 to clarify the language but was substantively unchanged.