Commonwealth v. Warren, PICS Case No. 14-0203 (Pa. Super. Jan. 29, 2014) Donohue, J. (10 pages).

2SUPERIOR COURT

The Legal Intelligencer

CRIMINAL LAW

Sentencing Guidelines • Possession of Controlled Substance

Commonwealth v. Warren, PICS Case No. 14-0203 (Pa. Super. Jan. 29, 2014) Donohue, J. (10 pages).

Where a trial court fails to, at the time of sentencing, advance reasoning for its adoption of a sentence deviating from the sentencing guidelines, the sentence should be vacated and the case remanded for resentencing. Vacated and remanded.

Defendant Alton Bernard Warren appealed from the judgment of sentence entered following conviction for possession of a controlled substance with intent to deliver. Defendant plead guilty to the possession charge in exchange for dropping of the other charges against him. Sentencing guidelines indicated a mitigated sentence of 15 months, standard sentence of 21-27 months, and aggravated sentence of 33 months, with a statutory maximum sentence of 360 months, although the trial court indicated to defendant that the statutory maximum was 120 months. The trial court imposed a sentence of 54-120 months, employing 35 P.S. §780-115 to double the high end of the standard sentence range to arrive at the minimum sentence.

Defendant argued that the trial court erred in misapplying §780-115 in doubling the minimum end of the sentence from the sentencing guidelines, in failing to inform him of the standard and maximum sentence, and in failing to state on record the reasons for its deviation from the sentencing guidelines.

The court rejected defendant's argument that §780-115 only permitted the doubling of maximum sentence and that the trial court erred in doubling the minimum end of his sentence from the sentencing guidelines. The court found that the statute allows doubling of the statutorily permissible length of sentence, and contains no reference to only permitting doubling of the maximum end of sentence. The court further found that case law cited by defendant in Commonwealth v. Griffin and Commonwealth v. Young referencing maximum sentences was merely explanatory language not germane to the resolution of the issue in both case and was therefore dicta.

The court ruled that defendant was not prejudiced by the court's failure to inform him of the statutory maximum sentence, citing Commonwealth v. Barbosa, which held that a defendant cannot withdraw his guilty plea, believing that the maximum sentence is less than what he could receive, unless he receives a sentence greater than what he was told. The court noted that the instant trial court erroneously informed defendant of the statutory maximum, but did not sentence him in excess of that stated maximum.

However, the court ruled that the trial court did fail to properly articulate, at the time of sentencing, its awareness of the sentencing guidelines and its reasons for issuing a sentence in deviation from the guidelines, as required by 42 Pa.CSA. §9721(b). For that reason, the instant court vacated the sentence and remanded to the trial court for resentencing.