J-S63012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LAWRENCE STROTHERS                         :
                                               :
                       Appellant               :   No. 1853 WDA 2017

              Appeal from the Judgment of Sentence May 25, 2017
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0013892-2016


BEFORE:      OTT, J., MURRAY, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                              FILED FEBRUARY 15, 2019

        Lawrence Strothers appeals from the judgment of sentence imposed on

May 25, 2017 in the Court of Common Pleas of Allegheny County following a

non-jury trial and his conviction on charges of possession of crack cocaine

with intent to deliver (PWID) and possession of a controlled substance.1 PWID

was an ungraded felony because of the small amount of drugs 2 confiscated

from Strothers at the time of his arrest. The sentencing guidelines provided

for a standard range minimum sentence of 9 to 16 months’ incarceration.

Strothers received a term of four to eight years’ incarceration. In this timely


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   Former Justice specially assigned to the Superior Court.

1   35 P.S. §§ 780-113(a)(30) and (16), respectively.

2   Strothers was in possession of 1.3 grams of crack cocaine.
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appeal, Strothers challenges the discretionary aspects of his sentence, arguing

the trial court failed to state adequate reasons on the record for issuing a

sentence in excess of the guidelines.            After a thorough review of the

submissions by the parties, relevant law, and the certified record, we vacate

judgment of sentence and remand for resentencing.3

       Initially, we note that Strothers has complied with the technical

requirements needed to challenge the discretionary aspects of a sentence.

Specifically, he has preserved the issue by including it is his post sentence

motion. See Post Sentence Motion, 6/25/2017. In addition, he has included

a 2119(f) statement in his appellant’s brief. See Commonwealth v.

Tuladziecki, 522 A.2d 17 (Pa. 1987). Further, his claim that trial court failed

to provide a contemporaneous statement on the record, as required by

statute, of the reasons for deviating from the guidelines provides our Court

with a substantial question proper for appellate review. See Commonwealth

v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999).

       At sentencing, which occurred immediately after the non-jury trial,4 the

trial court was informed, by defense counsel, of the applicable sentencing

guideline range.
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3 The Commonwealth did not file an Appellee’s Brief in this matter. Rather, it
submitted a letter stating agreement with Strothers’ argument that
resentencing was required. See Letter from Commonwealth, 9/11/2018.

4 Strothers waived his right to a presentence investigation.          See N.T.
Trial/Sentencing, 5/25/2017, at 65.



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       Defense Counsel: I mean, the guidelines I think are, in the
       standard range, are 9 to 16 months,[5] something like that. In the
       mitigated range it’s even less than that.

N.T. Trial/Sentencing, 5/25/2017, at 69.

       The trial court then issued the sentence, stating, in toto:

       Trial Court: All right. Okay. All right. This Court having found
       Mr. Lawrence D. Strothers guilty of possession with intent to
       deliver a controlled substance, an ungraded felony, I’m going to
       sentence you to 4 to 8 years, State Correctional Institution, in
       view of the fact that you were on parole. You can make that
       argument either way. You could accept Mr. Maloney’s that that’s
       an aggravated factor or Ms. Frick’s argument that this wasn’t a
       significant amount of cocaine, 1.3 grams.

Id. at 70.

       Strothers’ minimum sentence, 48 months’ incarceration, is 29 months

longer than the highest minimum aggravated range sentence. Therefore, the

sentence imposed is well outside the guidelines. There are relevant statutory

requirements when imposing a sentence outside the guidelines, which are

found at 42 Pa.C.S. § 9721(b). Specifically,

       [i]n every case in which the court imposes a sentence for a felony
       or misdemeanor, modifies a sentence, resentences an offender
       following revocation of probation, county intermediate
       punishment or State intermediate punishment or resentences
       following remand, the court shall make as a part of the record,
       and disclose in open court at the time of sentencing, a statement
       of the reason or reasons for the sentence imposed. In every case
       where the court imposes a sentence or resentence outside the
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5 Strothers had a prior record score of 5 and offense gravity score of 4.
Pursuant to the guidelines, a minimum aggravated range sentence could be
as high as 19 months. See Sentencing Matrix, 7th Edition, Amendment 3
(9/25/2015).

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       guidelines adopted by the Pennsylvania Commission on
       Sentencing under sections 2154 (relating to adoption of guidelines
       for sentencing), 2154.1 (relating to adoption of guidelines for
       county intermediate punishment), 2154.2 (relating to adoption of
       guidelines for State intermediate punishment), 2154.3 (relating to
       adoption of guidelines for fines), 2154.4 (relating to adoption of
       guidelines for resentencing) and 2154.5 (relating to adoption of
       guidelines for parole) and made effective under section 2155, the
       court shall provide a contemporaneous written statement of the
       reason or reasons for the deviation from the guidelines to the
       commission, as established under section 2153(a)(14) (relating to
       powers and duties). Failure to comply shall be grounds for
       vacating the sentence or resentence and resentencing the
       defendant.

42 Pa.C.S. § 9721(b).

       Accordingly, when imposing sentence, the trial court must state its

reasoning on the record and, when imposing a sentence outside of the

guidelines, the trial court is required to provide a contemporaneous written

statement of the its reasoning.6         A failure to abide by these requirements

SHALL be grounds for vacating the sentence, and remanding for resentencing.

The requirement of Section 9721(b) to provide a contemporaneous statement

of reasons is not to be taken lightly.

       In Commonwealth v. Flowers, 149 A.3d 867 (Pa. Super. 2016), the

trial court failed to comply with the requirements, and even though the trial

court placed its reasoning in its Pa.R.A.P. 1925(a) opinion, as the trial court


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6 Although Section 9721(b) appears to require both a contemporaneous oral
and written statement when issuing a sentence outside of the guidelines, case
law has allowed the sentencing court to avoid the written statement, as long
as the there is a sufficient oral statement. See Commonwealth v. Widmer,
667 A.2d 215 (Pa. Super. 1995); Commonwealth v. Royce, 476 A.2d 453
(Pa. Super. 1984).

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did instantly, a panel of our Court vacated the sentence and required

resentencing. Further, Flowers instructs:

     “[a] sentencing court need not undertake a lengthy discourse for
     its reasons for imposing a sentence, ... the record as a whole must
     reflect the sentencing court’s consideration of the facts of the
     crime and character of the offender.” Commonwealth v. Crump,
     995 A.2d 1280, 1283 (Pa. Super. 2010). A “discourse on the
     court’s sentencing philosophy, as it applies to the defendant
     before it, is not required.” Commonwealth v. Hill, 427 Pa.Super.
     440, 629 A.2d 949, 953 (1993). But “the reasons must reflect the
     judge’s consideration of the sentencing code, the circumstances
     of the offense and the character of the offender.”
     [Commonwealth v.] Beasley, 570 A.2d [1336,] 1338 [(Pa.
     Super. 1990)]; see also Hill, 629 A.2d at 953 (“Simply put, the
     sentencing judge must state his or her reasons for the sentence
     imposed”).

Id. at 867.

     Similarly, in Commonwealth v. Rodda, 723 A.2d 212 (Pa. Super.

1999), upon vacating judgment of sentence, a panel of our Court stated:

     we hold that when imposing sentence, a trial court has rendered
     a proper “contemporaneous statement” under section 9721(b) of
     the Sentencing Code, so long as the record demonstrates with
     clarity that the court considered the sentencing guidelines in a
     rational and systematic way and made a dispassionate decision to
     depart from them.

Id. at 217.

     As quoted above, the certified record reflects the trial judge merely

stated that Strothers had been on parole. The trial court then, somewhat

confusingly, stated, “You could make that argument either way.       You can

accept Mr. Maloney’s that that’s an aggravated factor or Ms. Frick’s argument

that this wasn’t a significant amount of cocaine, 1.3 grams.”              N.T.



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Trial/Sentencing, 5/25/2017, at 70. This abbreviated commentary does not

reflect the required “rational and systematic” consideration required when

departing from the guidelines.

        Because the requirements of section 9721(b) have not been met, we

are required to vacate the judgment of sentence and remand for resentencing

in compliance with the rules. This decision is not meant to be interpreted as

commentary or analysis of the length of the sentence imposed. This decision

notes    only   that   the   trial   court    must   fulfill   its   duty   to   provide   a

contemporaneous statement of reasons from deviating from the guidelines at

the time of imposition of sentence. Resentencing shall take place within 90

days of the return of the certified record to the trial court.

        Judgment of sentence vacated.                This matter is remanded for

resentencing. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/15/2019




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