Com. v. Torres, J.

J-A24030-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JASON TORRES :
:
Appellant : No. 387 EDA 2015
Appeal from the Judgment of Sentence of February 7, 2014,
In the Court of Common Pleas of Montgomery County,
Criminal Division at No.: CP-46-CR-0000790-2012
BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*
DISSENTING MEMORANDUM BY STRASSBURGER, J.:FILED DECEMBER 04, 2015
I respectfully dissent.
Appellant contends that the lower court abused its discretion in
sentencing him to 7 ½ to 20 years of incarceration for attempted involuntary
deviate sexual intercourse. In support of this contention, Appellant argues
that, inter alia, the court stated it was sentencing Appellant within the
aggravated range of the guidelines, when it in fact sentenced him in excess
of that range by two years. Because I agree with Appellant on this point, I
would vacate Appellant’s judgment of sentence and remand for
resentencing. See Commonwealth v. Byrd, 657 A.2d 961 (Pa. Super.
1995) (vacating Byrd’s judgment of sentence and remanding for
resentencing where the trial court stated on the record that it was
sentencing Byrd within the aggravated range and provided its reasons for
* Retired Senior Judge assigned to the Superior Court.
J-A24030-15
doing so, but the record reflected that the trial court actually sentenced Byrd
in excess of that range).
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