Commonwealth v. Septak

¶1dissenting:

¶2The charges to which appellee pled guilty do not involve the use of a deadly weapon nor does the factual summary presented by the Commonwealth at the guilty plea colloquy establish that a deadly weapon was used in the appellee’s presence or that he should have known of its use. For these reasons, I believe the lower court properly did not apply the deadly weapon enhancement provision of the Sentencing Guidelines and that the probationary sentence and fine imposed were reasonable deviations from the *386Guidelines under the circumstances. I dissent from the vacation of the sentence of the lower court and would affirm.

¶3Appellee pled guilty to the charges of unlawful restraint, terroristic threats, and conspiracy.1 None of these counts in the information filed by the Commonwealth alleged possession of a deadly weapon. Nor, for that matter, did the kidnapping or theft by extortion counts allege possession of a deadly weapon.2 The theft count alleges a threat to shoot; no other reference to a firearm or other deadly weapon is contained in the information.

¶4*387The factual summary recited by the Commonwealth at the guilty plea colloquy referred to use of a handgun in the initial abduction of the victim and during a portion of the time the victim was held at the home of a co-conspirator. There was no representation that appellee was present during the brandishing of the weapon or that he was aware of its existence and use. Appellee was present during a relatively short portion of the entire time the victim was held and pled guilty to those crimes for which he bore responsibility. It is proper that only the offenses to which appellee pled guilty be looked at in determining application of the deadly weapon enhancement provision.

¶5The relevant portion of the deadly weapon enhancement provision is as follows:

§ 303.4(a) When the court determines that the defendant or an accomplice possessed a deadly weapon, as defined in 18 Pa.C.S. § 2301 (relating to definitions), during the commission of the current conviction offense; at least 12 months and up to 24 months confinement shall be added to the guideline sentence which would otherwise have been imposed.3

¶6204 Pa. Code § 303.4(a), reprinted at 42 Pa.C.S.A. § 9721 (emphasis added).

¶7The language of this section clearly requires that the “current conviction offense” is the relevant focus of inquiry for determination of application of the deadly weapon enhancement provision. This reading of the language is in accord with the meaning ascribed to it by The Pennsylvania Commission on Sentencing. “A deadly weapon enhancement is added when a weapon was possessed while committing the crime being sentenced.” Pa.C.Sent.2d at 47 (Sept. 1, 1986.) Thus, it is clear that only the offenses to which apellee pled guilty may be considered for enhancement purposes at the time of sentencing. The Commonwealth did not present any evidence that, relating to the offenses for *388which guilty pleas were tendered, an accomplice possessed a deadly weapon. The entire criminal episode is not the proper object of review, but only the acts to which defendant admitted guilt and which resulted in convictions. To hold otherwise results in impermissible plea enhancement rather than sentence enhancement.

¶8The Commonwealth further contends that the lower court unreasonably deviated from the Sentencing Guidelines in imposing a too lenient sentence. I would hold that the lower court adequately articulated its reasons for deviating from the guidelines and that the reasons were legally sufficient to support the sentence imposed. Ignoring the deadly weapon enhancement, the ranges for an offense gravity of 6 and a prior record score of 0 are minimum range 4-12 months, aggravated range 12-18 months, and mitigated range 2-4 months of confinement. The lower court’s probationary sentence is not an abuse of discretion given the duration of the entire episode and appellee’s brief and accidental involvement, appellee’s background and character, employment status, family responsibilities, and avoidance of contact with co-defendants since the date of the criminal act.

¶9I would affirm the judgment of sentence.