J-S28023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellee

                     v.

DASHARRH BARFIELD,

                           Appellant                  No. 1481 MDA 2014


      Appeal from the Judgment of Sentence entered June 24, 2014,
            in the Court of Common Pleas of Luzerne County,
          Criminal Division, at No(s): CP-40-CR-0001489-2013


BEFORE:     BOWES, ALLEN, and LAZARUS, JJ.

CONCURRING MEMORANDUM BY ALLEN, J.:                 FILED AUGUST 25, 2015

      I agree with the Majority that the trial court did not err when it

revoked Appellant’s intermediate punishment.

      I write separately because, in making its sentencing determination, the

trial court – which had the benefit of a pre-sentence investigation report –

considered appropriate sentencing factors, including Appellant’s “substantial

prior criminal history, much of which included drug-related offenses similar

to the offense at issue here”, and the fact that although Appellant had been

given numerous opportunities to reform, previous efforts at rehabilitation

were unsuccessful.        N.T., 6/5/14, at 4-5.    The trial court additionally

observed that Appellant squandered the opportunity when the court initially

imposed an IPP sentence on the underlying conviction. Id. Based on these

considerations, the trial court sentenced Appellant to incarceration in a state
J-S28023-15



correctional institution so that Appellant could benefit from the programs

offered in the state system. Id.

      Thus, it is apparent from the record that when imposing Appellant’s

sentence, the trial court adhered to the statutory provisions of 42 Pa.C.S.A.

§§ 9721 and 9773, and considered Appellant’s rehabilitative needs, his

likelihood of reoffending, and the fact that efforts at rehabilitation had failed

where Appellant had been on house arrest for only one month before

violating the conditions of his intermediate punishment sentence.        On the

basis of these sentencing considerations alone, the trial court’s sentence

would have been appropriate.

      However, given that       the   trial court repeatedly referenced the

sentencing guidelines in contravention of our decision in Philipp, 709 A.2d

at 921, which made clear that “the guidelines were not intended to and do

not apply”, I am constrained to concur with the Majority that the judgment

of sentence must be vacated.

      BOWES, J., Joins this concurring memorandum.




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