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2001 PA Super 36
COMMONWEALTH OF PENNSYLVANIA,
IN THE SUPERIOR COURT OF
No. 891 MDA 2000
Appeal from the Judgment of Sentence in the
Court of Common Pleas of Dauphin County,
Criminal Division, Nos. 480, 1331 CD 1997
BEFORE: MUSMANNO, ORIE MELVIN and TAMILIA, JJ.
OPINION BY TAMILIA, J.
Filed: February 5, 2001
Donald Harclerode appeals from his February 22, 2000 judgment of
sentence of seven and one-half (7½) to sixty-two (62) years' imprisonment,
followed by twenty (20) years' probation.1 On August 27, 1997, pursuant to
a negotiated plea agreement, appellant pled guilty to rape (two counts),2
involuntary deviate sexual intercourse,3 indecent assault,4 impersonating a
1 In their briefs, both appellant and the Commonwealth state appellant's
judgment of sentence to be seven and one-half (7½) to sixty (60) years'
imprisonment, followed by twenty (20) years' probation. Review of the
sentencing transcript, however, indicates that appellant, in fact, was
sentenced to seven and one-half (7½) to sixty-two (62) years'
imprisonment, followed by twenty (20) years' probation.
2 18 Pa. C.S.A. § 3121.
3 Id., § 3123.
4 Id., § 3126.
public servant5 and criminal conspiracy to commit rape.6 These offenses
stem from separate sexual assaults appellant committed against young
women in 1996.
On August 29, 1997, pursuant to the plea agreement, appellant
received an aggregate sentence of seven and one-half (7½) years to life
imprisonment. No direct appeal was filed. On June 18, 1999, appellant filed
a petition pursuant to the Post Conviction Relief Act (PCRA)7 and argued he
was serving an illegal sentence. Upon review of the matter, the
Commonwealth agreed with appellant's position and a resentencing hearing
Appellant raises the following issues for our review.
1. Did the trial court abuse its discretion by
sentencing the appellant to . . . seven and a half
(7½) to sixty[-two] (6) years [of]
imprisonment plus twenty (20) years of
probation which in effect is a life sentence and
therefore manifestly excessive in light of the
underlying charges [?]
5 Id., § 4912.
6 Id., § 903.
7 42 PA.C.S.A. §§ 9541-9546.
8 Appellant's life sentence was illegal by virtue of the Pennsylvania
Supreme Court's decision in Commonwealth v. Williams, 557 Pa. 285,
733 A.2d 593 (1999). In Williams, the Court found the "sexually violent
predator" provisions of the Registration of Sexual Offenders Act, 42
Pa.C.S.A. §§ 9791-9799.6, to be violative of the procedural due process
guarantees of the Fourteenth Amendment of the U.S. Constitution.
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2. Is the appellant suffering from an illegal sentence
since due to his age his new sentence is a life
sentence which was found to be unconstitutional
in Commonwealth v. Williams,  Pa. ,
733 A.2d 593 (1999)[?]
(Appellant's brief at 10.)
"Appellate review of sentencing issues is prescribed by 42 Pa.C.S. §
9781, and is discretionary as to all aspects of sentencing except legality of
the sentence." Commonwealth v. Hernandez, 755 A.2d 1, 12 (Pa. Super.
2000) (citation omitted).
Sentencing is a matter vested in the sound discretion
of the sentencing court whose judgment will not be
disturbed on appeal absent an abuse of discretion.
It is well settled that an appellant does not have an
appeal as of right from the discretionary aspects of
his sentence. Before a challenge to the judgment of
sentence will be heard on the merits, an appellant
must demonstrate there is a substantial question
that the sentence imposed is inappropriate under the
sentencing guidelines. To satisfy this requirement,
an appellant must set forth in his brief a concise
statement of reasons relied upon for allowance of
appeal with respect to the discretionary aspects of a
Commonwealth v. Adams, 760 A.2d 33, 39 (Pa. Super. December 13,
2000) (citations omitted). We note that appellant's brief includes a concise
statement of reasons relied upon for allowance of appeal with respect to
the discretionary aspects of his sentence. See Appellant's brief at 5.
Appellant acknowledges "he was sentenced within the confines of the
sentencing guidelines" and that the "sentence was not in excess of the lawful
maximums" but contends that the sentence "inflict[s] too severe a
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punishment" and that the trial court "focused on the nature of the crimes
and had a personal prejudice, bias and ill will" toward him. See Appellant's
brief at 15-16. Appellant's assertions, however, are unsupported by the
record. Moreover, appellant fails to cite any portion of the record that even
suggests the trial court focused upon impermissible factors or otherwise
abused its discretion.
As a subpart of this issue, appellant complains that the trial court
erred in imposing consecutive sentences, when his original plea agreement
provided for concurrent sentences. This claim, however, is devoid of support
in the record.
At the August 27, 1997 plea colloquy hearing, appellant was asked
whether he understood that the "plea agreement called for a sentence of not
less than seven and a half years nor more than life." (N.T., 8/27/97, at 7.)
Appellant responded in the affirmative. Next, appellant was asked, "Have
any other promises been made to you with regards to this plea and the
sentence you might receive?" Appellant responded, "No." Id.
Moreover, the sentencing court expressly stated on the record that its
objective in resentencing appellant was to maintain "the spirit and intent
that was originally imposed by the [plea] agreement (N.T., 2/22/00, at 9,
16). We have no reason to conclude the trial court misconstrued the intent
of the original sentencing scheme devised by counsel and approved by the
court, prior to the finding by our Supreme Court of the unconstitutionality of
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Megan's Law upon which the sentence was based. At the time of original
sentencing, since appellant had agreed to sentencing as a sexual predator,
the mandatory maximum sentence as to the predicate rape convictions was
life in prison. The only bargaining power appellant had was to minimize the
minimum sentence which could have been aggregated to 41 years if done
consecutively. It is inconceivable, with the array of offenses and possible
minimum and maximum aggregates available to the court, that a 7½ year
minimum term of imprisonment would have been ordered as a concurrent
aggregate if the life maximum was not implicated. It necessarily follows the
bargained-for 7 ½ year minimum sentence cannot be used by appellant as a
lever to compel a structured maximum sentence not to exceed 20 years
when a maximum term of less than life in prison never was contemplated in
the original sentence.
Based upon the sentencing court's clearly stated objective to sentence
appellant in accordance with the terms of the plea agreement, we conclude if
the plea agreement specifically had called for the imposition of concurrent
sentences, the sentencing court would have again sentenced appellant to
concurrent sentences. The fact that upon resentencing the sentencing court
sentenced appellant to consecutive sentences indicates to this Court that
imposition of concurrent sentences was not a part of the plea agreement.
Moreover, where a defendant's illegal sentence is corrected at resentencing
and neither the minimum nor maximum aggregate term of imprisonment is
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increased by virtue of the new sentence, there is no constitutional violation.
Commonwealth v. Kratzer, 660 A.2d 102 (Pa. Super. 1995), appeal
denied, 543 Pa. 702, 670 A.2d 643 (1996).
¶ 10 Next, appellant argues that his sentence is illegal. He claims that the
trial court was attempting to circumvent the holding in Commonwealth v.
Williams, 557 Pa. 285, 733 A.2d 593 (1999), and that the practical effect of
his sentence is a life sentence. (At the time he filed his appeal, appellant
was 37 years old.) Upon review of the record, it is clear this argument is
completely without merit.
¶ 11 Appellant pled guilty to four first-degree felonies, each carrying a
maximum legal sentence of twenty (20) years. 18 Pa.C.S.A. § 1103.
Sentence of imprisonment for felony. In addition, appellant pled guilty
to two second-degree misdemeanors, each carrying a maximum legal
sentence of two years. Id. at § 1104. Sentence of imprisonment for
misdemeanors. One of the misdemeanors merged for sentencing
purposes. The maximum legal sentence applicable to appellant, therefore, is
eighty-two (82) years. Accordingly, appellant's sentence of seven and one-
half (7½) to sixty-two (62) years' imprisonment, followed by twenty (20)
years' probation is a legal sentence and in no manner runs contrary to the
holding in Williams, supra.
¶ 12 Judgment of sentence affirmed.
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