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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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




                                     -2-
