Commonwealth v. Tuladziecki · 513 Pa. 508

explaining that, when the sentencing court is directed to determine the appropriate sentence based upon its “opinion” of the “weight” to be assigned to a “multitude of factors,” an attack relating to the court’s weighing of those factors is a challenge to the discretionary aspects of the sentence

How later courts described this case

explaining that, when the sentencing court is directed to determine the appropriate sentence based upon its “opinion” of the “weight” to be assigned to a “multitude of factors,” an attack relating to the court’s weighing of those factors is a challenge to the discretionary aspects of the sentence
holding that an appellant must set forth a separate concise statement of reasons for allowance of appeal, and it is error to review the appellant’s argument section of the brief to determine if it raises a substantial question
holding that claim relating to discretionary aspects of sentence is waived if appellant does not include Pa.R.A.P. 2119(f) statement in brief and opposing party objects to statement’s absence
concluding that appellate review despite the failure to meet these requirements would afford an appellant “an appeal as of right from the discretionary aspects of a sentence”

Written by the judges who cited it.

The opinion

LARSEN, Justice,

dissenting.

Although I note with satisfaction that the majority appears to recognize that 42 Pa.C.S.A. § 9781(f) 1 does not *516 preclude limited review in this Court of an appeal from the discretionary aspects of sentencing, I hereby dissent to the majority’s elevation of form over substance on the procedural issue in this case and would affirm the decision of Superior Court.

In this regard, the majority concludes:

It is apparent that the legislature has vested broad discretion in the trial court to impose a sentence appropriate to each case which comes before it. It is also apparent that the legislature has provided a thorough, though not exhaustive, outline of considerations to focus the court’s deliberations in choosing an appropriate sentence. It is only where a party can articulate reasons why a particular sentence raises doubts that this scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercised its discretion. In the present case the Commonwealth not only failed to articulate any such reasons, it did not even attempt to do so.

Maj. op. at 515 (emphasis added).

The majority does not explain how the Commonwealth’s petition in this case fails to “articulate reasons why a particular sentence raises doubts that this scheme as a whole has been compromised.” 2 By omitting such explanation, the majority implies that assertions of sentencing outside the guidelines and unreasonableness in sentencing are not sufficient to trigger appellate review under section *517 9781(b). By so ruling, the majority ignores the effect of 42 Pa.C.S.A. § 9781(c)(3) 3 upon its interpretation of the procedural rules of appellate review in these cases, and purports to create a new rule of procedure pursuant to which parties must recite that a particular assertion raises “a substantial question that the sentence imposed is not appropriate under this chapter.” 42 Pa.C.S.A. § 9781(b).

Superior Court states at the outset of its memorandum opinion that “the Commonwealth’s appeal has raised a ‘substantial question’ as to the appropriateness of the sentence.” Mem. op. at 1 n. 1. Section 9781(b) requires no more of Superior Court when that court grants a petition for allowance of appeal. Further, nowhere in our rules governing appellate procedure do I find a requirement that the parties specifically state that they are raising the issue of a “substantial question” and that the absence of such language requires that the appellate court not proceed to a decision on the merits where it has found that a substantial question exists.

In practice, Superior Court has properly permitted appeals where the sentencing court has imposed a sentence outside the guidelines, which sentence the Commonwealth alleges is unreasonable under the facts of the case. Superior Court permits the appeal once it determines that a “substantial question” exists. See e.g., Commonwealth v. Mattis, 352 Pa.Super. 144, 146 , 507 A.2d 423, 424 (1986); Commonwealth v. Days, 349 Pa.Super. 188 , 502 A.2d 1339 (1986); Commonwealth v. Dixon, 344 Pa.Super. 293, 295-297 , 496 A.2d 802, 802-03 (1985); Commonwealth v. Drumgoole, 341 Pa.Super. 468, 472-473 , 491 A.2d 1352, 1354 (1985). Those cases not involving a substantial question are simply not considered further.

*518 Until our rules definitively require incantation of statutory phraseology when parties present issues for review, I find it inappropriate to insist upon such incantation.

Because I find that Superior Court properly permitted the Commonwealth’s appeal and because I believe our review is limited in these cases, 4 I do not consider the merits of the case and would thereby affirm Superior Court’s remand for resentencing.

. Section 9781(f) provides:

(f) Limitation on additional appellate review.

—No appeal of the discretionary aspects of the sentence shall be permitted beyond the appellate court that has initial jurisdiction for such appeals.

. In its "Summary of the Argument," which summary immediately preceded its argument to Superior Court, the Commonwealth, appellee herein, stated:

The sentence of probation should be vacated and the case remanded to the sentencing court for resentencing within the sentencing guidelines pursuant to 42 Pa.C.S.A. § 9781(c)(3). The sentence of probation was outside the sentencing guidelines and was unreasonable because the court failed to impose a sentence of confinement that is consistent with the protection of the public as is required by 42 Pa.C.S.A. § 9721(b). The public should be protected form [sic] this convicted individual because he is a habitual violator of the Controlled Substance laws who introduces harmful narcotics into the community.

Brief for Appellee, Appendix at 7 (emphasis added).

. Section 9781(c)(3) provides, in pertinent part, as follows:

—The appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds:

(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.

. I interpret section 9781(f) as permitting this Court to review a ruling by an intermediate appellate court which is an abuse of discretion or exceeds its authority. I find no such abuse or excess herein.