Commonwealth v. Steward

419 A.2d 96, 276 Pa. Super. 64, 1980 Pa. Super. LEXIS 2145

Opinions

PER CURIAM:

On April 24, 1975, appellant James Steward pled guilty to one count of robbery in the Court of Common Pleas, Philadelphia County. Pursuant to the negotiated plea bargain, he was placed on two years probation. Subsequently, on November 24,1976, appellant was found to have violated the conditions of probation by virtue of his conviction for robbery, theft, and other unrelated offenses. A sentence of five to ten years imprisonment was then imposed after revocation of probation. A petition to reconsider the sentence was granted and appellant was later sentenced to four to ten years imprisonment.¹ This appeal followed.

Appellant avers that the court erred in failing to state the reasons for the sentence imposed. A review of the record bears out appellant’s contention that nowhere did the court expressly or impliedly consider the statutory guidelines for sentencing, Act of December 6, 1972, P.L. 1482, No. 334, added December 30, 1974, P.L. 1052, No. 345, or the appellant’s individual characteristics and circumstances of the particular offense, Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976); Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979); Commonwealth v. Pauze, 265 Pa.Super. 155, 401 A.2d 848 (1979); Commonwealth v. Costlow, 265 Pa.Super. 108, 401 A.2d 824 (1979); Commonwealth v. Valentin, 259 Pa.Super. 496, 393 A.2d 935 (1978). Although decided subsequent to the imposition of sentence instantly, it is clear that Riggins is fully applicable to cases pending on direct appeal at the time it was decided. Commonwealth v. Jefferson, 484 Pa. 115, 398 A.2d 971 (1979); Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977); Commonwealth v. Young, 272 Pa.Super. 82, 414 A.2d 679 (1979); Commonwealth v. Roberts, 263 Pa.Super. 237, 246 fn.6, 397 A.2d 1187, 1191 fn.6 (1978). Further, it is clear that Riggins applies where the court imposes sentence following a revocation of probation. Commonwealth v. Cottle, 260 Pa. Super. 85, 393 A.2d 1024 (1978).

Accordingly, we must vacate the judgment of sentence and remand to afford the trial court an opportunity to resentence appellant and to include a statement of reasons for the sentence imposed, in compliance with Commonwealth v. Riggins, supra.²

Judgment of sentence vacated and case remanded for resentencing.

SPAETH, J., files a concurring and dissenting opinion in which CERCONE, President Judge, joins. HOFFMAN, J., concurs in the result. JACOBS, former President Judge, did not participate in the consideration or decision of this case.

1 . The petition to reconsider and the reduced sentence do not appear in the record before us. For their existence, we rely solely on the opinion of the lower court and appellate counsel’s representations.

2 . We have examined appellant’s remaining contention, that the court improperly dispensed with a pre-sentence report, and find it without merit. Defense counsel suggested appellant had “a drug problem,” but the court expressly stated such a condition would have no bearing on the sentence since “a drug problem is [no] excuse for robbery nor will the court consider any [rehabilitative] program where the crime is robbery especially where the court originally had given the defendant probation for the same crime, robbery.” N.T. 11/24/76, p. 25. Thus, the court adequately stated the reasons for dispensing with the pre-sentence report. Pa.R.Crim.P. 1403 A(2); Commonwealth v. Martin, supra. We note further the relevant amendment to Rule 1403 was not in effect at the time appellant received his sentence.