Commonwealth v. Love

441 A.2d 1230, 295 Pa. Super. 276, 1982 Pa. Super. LEXIS 3303

• Court: Superior Court of Pennsylvania
• Decided: January 29, 1982
• Docket: 1925
• Status: Published

Opinions

BROSKY, Judge:

On February 5, 1979, appellee, Love, was charged with robbery, simple assault and terroristic threats. Love pleaded guilty to robbery and was sentenced to one to three years imprisonment. The Commonwealth brought this appeal which we allow pursuant to Section 5 of Act of November 26,1978, P.L. 1316, No. 319, subpart (d) which is found in a note following 42 Pa.C.S.A. § 2155 (hereinafter Section 5).¹

The Commonwealth contends that the trial court is obliged to provide a statement of reasons why a sentence less than four years is imposed where, as here, the defendant, below, is a repeat offender.² Section 5, subpart (b). We remand for a statement of reasons for the sentence.

On or about February 5, 1979, Love was apprehended by police who were responding to a woman, Mabel Dorsey, who requested their assistance, as the police drove by her. Love was seized by the police who found personal papers belonging to Ms. Dorsey and two hundred dollars in his pocket. Love was subsequently charged and convicted.

The sentencing court stated in its opinion that the sentence which the appellee received was within the statutory limits proscribed for the offense of robbery. The court went on to say it made its decision in compliance with all the factors set forth in 18 Pa.C.S.A. § 1821.

Love is a repeat offender. He was convicted in the instant case of robbery and on two earlier occasions he had been convicted of robbery. Accordingly, the trial court should have followed the procedures stated in Section 5. They are:

Section 5. Pursuant to this section, there is established an interim guideline for the minimum sentencing of certain repeat offenders.

(a) Until sentencing guidelines adopted by The Pennsylvania Commission on Sentencing and relating to the offenses set out in this subsection become effective pursuant to [42 Pa.C.S.A. § 2155] (relating to publication of guidelines for sentencing), when any person is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery, aggravated assault as defiried in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) involving the use of a firearm, arson or kidnapping, or of attempt to commit any of these crimes, and when that person has been previously convicted in this Commonwealth, or any other state or the District of Columbia, or any Federal court, of any of the offenses set forth in this section or their equivalent, the sentencing court shall consider as a guideline in imposing sentence that such person be sentenced to a minimum term of not less than four years imprisonment.

(b) In any case where a court sentences a person subject to the provision of subsection (a), to a term of less than four years imprisonment, the court shall provide a contemporaneous written statement of the reason or reasons for the sentence.

The provisions established in subpart (b) are not discretionary. Therefore, the trial court is obliged to state its reasons for sentencing the appellee for a period of less than four years.

The trial court, on imposing judgment of sentence should place on the record its reasons for imposition of the particular sentence chosen. In stating its reasons, the trial judge should consider the character of the defendant and the particular circumstances of the crime. No mention is made of appellant’s prior criminal record, his age, his personal characteristics, or his potential for rehabilitation. Moreover, by the trial court’s “brevity and eonclusory quality” in making a statement of its reasons for sentencing, it obviated the purpose behind Section 5(b). Cf.: Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1970); Commonwealth v. Roberts, 263 Pa.Super. 237, 397 A.2d 1187 (1978). Accordingly, we remand to the trial court for a hearing at which time the trial court will state its reasons for sentencing.

The parties are not prejudiced by our decision from bringing a new appeal within 30 days from the trial court’s issuance of its statement of reasons on remand.

Accordingly, we remand for proceedings consistent with this opinion.

HOFFMAN, J., files a concurring opinion. CIRILLO, J., joins in both opinions.

1 . The appellee asserts that the appeal should be quashed because the relief requested by the Commonwealth may subject the appellee to a greater sentence and thereby potentially violate the double jeopardy clause. While we appreciate the appellee’s reasoning, we have been asked on appeal solely to determine whether the trial court should have stated its reasons for sentencing under Section 5 and not vacate to reconsider a new sentence. The requested relief does not violate the appellee’s right not to be placed in jeopardy twice.

Love also asserts the Commonwealth has waived its appeal because it has not followed the procedures for modification of sentence set out in Pa.R.Cr.P. 1410. This contention is unfounded. The Commonwealth does not seek a modification in this appeal, rather it seeks compliance with Section 5.

Finally, Love contends that the Commonwealth has waived this claim because:

Neither the appellee nor his counsel were advised either formally or informally that the Commonwealth would seek an enhancement of sentence under Act 319 until after the entry of the guilty plea and well into the sentencing hearing itself. The record reflects that it was only after the sentencing hearing had been substantially completed that the assistant district attorney, who had not participated in the plea proceedings, first mentioned Act 319 (The Presumptive Sentencing Act).

(Footnote omitted), appellee’s brief, page 13.

Section 5(i) states: “The Supreme Court shall by Rule prescribe procedures to implement the provision of this statute.” We are unable to find any rule indicating that the Commonwealth must supply notice to the defendant prior to the commencement of sentencing proceedings. We are satisfied that the Commonwealth did not waive its right to raise, on appeal, the issue contained herein.

2 . Love was convicted on eleven previous occasions. Two of these convictions were for robbery.