Commonwealth v. Turecki

420 A.2d 658, 278 Pa. Super. 511, 1980 Pa. Super. LEXIS 2757
CourtSuperior Court of Pennsylvania
DecidedJune 20, 1980
Docket2561
StatusPublished
Cited by24 cases

This text of 420 A.2d 658 (Commonwealth v. Turecki) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Turecki, 420 A.2d 658, 278 Pa. Super. 511, 1980 Pa. Super. LEXIS 2757 (Pa. Ct. App. 1980).

Opinions

CAVANAUGH, Judge:

On March 23, 1978, appellant entered a guilty plea to a charge of retail theft, based on the theft of a coat valued at $275.00 from the Strawbridge & Clothier store, located at Plymouth Meeting, Pennsylvania. Appellant was placed on three years probation conditioned on the successful completion of a drug rehabilitation program. On May 18, 1978, appellant was ordered to undergo in-patient treatment at the Gaudenzia House, Philadelphia, Pennsylvania, which provides a program of treatment for persons suffering from drug related problems. Appellant entered Gaudenzia House [514]*514and within two weeks, he absconded from the house and did not return. After being placed on probation, appellant was convicted in Philadelphia, Pennsylvania, of the crime of obstruction of the mail.

A probation revocation hearing was held before Smiley, J., the judge who had placed appellant on probation following his guilty plea to the charge of retail theft. At the probation revocation hearing, which Judge Smiley characterized as a Gagnon II hearing, appellant admitted that he had violated his probation. Appellant also stated at the hearing that he left Gaudenzia House without permission and that although they would have taken him back, he refused to return. Appellant gave as his reason for leaving the fact that he did not get along with the head of the department. He also felt that he was not treated the same as other people in the program. His only specific complaint was that when he had “walking privileges” he was supposed to be able to go where he wanted without anyone being with him, but the head of the department or someone else would be with him to supervise him. However, appellant did not complain to his probation officer about his alleged problems at Gaudenzia House.

Following the probation revocation hearing appellant was sentenced to imprisonment for not less than eighteen months, nor more than three years. It is from this judgment of sentence that appellant has filed an appeal to this Court.

The sole question on appeal is whether the sentence is excessive. Although the trial judge did not state his reasons for sentencing appellant when he imposed sentence, he did so in the opinion filed of record in this case.

Following the imposition of sentence on September 6, 1978, appellant filed a Petition for Reconsideration of Sentence. He listed several reasons for reconsideration, but did not raise as an issue the fact that the court below did not state at the time of sentencing the reasons for the sentence. On appeal to this court, the statement of question involved was simply “Whether the sentence imposed was unduly harsh and excessive under the circumstance of the defend[515]*515ant’s case.” For the first time appellant now contends, in part, that the sentence was excessive because there is “no indication in the record that in imposing sentence the court considered any of the statutory sentencing guidelines, as evidenced by the absence of any reasons or explanation at the time of sentencing.” (Appellant’s Brief, page 5). Appellant also cites other reasons to support his contention that the sentence was excessive, such as his adverse relationship with the director of treatment at Gaudenzia and the fact that he had a good employment record.

Appellant has waived any objection to the failure of the court below to state its reasons for the sentence at the time of imposing the sentence, as this issue was not raised at sentencing or in appellant’s Petition for Reconsideration of the sentence. Our court stated in Commonwealth v. Morris, 273 Pa.Super. 477, 417 A.2d 748 (1979), “Appellant did not raise these claims [i. e. that the sentence imposed was excessive and the trial court did not place its reasons for the sentence imposed on the record at the time of sentencing] at sentencing or in a petition for reconsideration of sentence. Therefore, these issues are not preserved for review.” (273 Pa.Super., page 482, 417 A.2d, page 751). Where a claim of error is not properly preserved for review, an appellate court will not consider the claim on appeal. Com. v. Clair, 458 Pa. 418, 421, 326 A.2d 272, 273 (1974).

There is no doubt that the court below erred in failing to set forth its reasons for the sentence at the imposition of sentence. This is required by Pa.R.Crim.P. 1405.1 See also Com. v. Young, 272 Pa.Super. 82, 414 A.2d 679 (1979) which holds that the court must state its reasons for the sentence at the time the sentence is imposed. We note that the concurring opinion in Com. v. Young, supra, points out that the appellant properly raised a Riggins -type issue in the petition to vacate sentence thereby preserving the question [516]*516for appellate review. Such is not the case in the instant matter. “We insist that issues are to be properly preserved for appellate review, both to assure a correct disposition of the merits and conserve judicial resources.” Benson v. Penn Central Transportation Co., 463 Pa. 37, 42, 342 A.2d 393, 395 (1975).

Appellant has properly preserved the issue of excessiveness of sentence and we find that the sentence is not excessive under the circumstances of this case. It is now fundamental that the sentencing court must give the reasons for the sentence it imposes. Com. v. Riggins, 474 Pa. 115, 133, 377 A.2d 140, 149 (1977); Com. v. Wertz, 252 Pa.Super. 584, 585, 384 A.2d 933, 935 (1978). In his opinion the court below stated:

When the terms of a defendant's release on probation are violated, the probation may be revoked and sentence imposed on the original conviction. 18 Pa.C.S. Section 1371: Commonwealth v. Preininger, 230 Pa.Super. 39 [326 A.2d 612] (1974). In the case at hand, successful completion of the Gaudenzia Program was a prerequisite for continued probation. Defendant left Gaudenzia after only two weeks, long before completion of the drug treatment program.
Defendant has failed to take advantage of the opportunity given him to overcome his drug addiction and correct his behavior without commitment to a penal institution. Even though Gaudenzia was willing to allow defendant to return to the drug program, he refused to go back. Defendant contends he was subjected to discriminatory treatment in the exercise of his privileges while at Gaudenzia as his reason for absconding. Defendant, however, mi .e no attempt to notify his Probation Officer concerning any problems, and when he left, he made no attempt to contact his Probation Officer. There now appears to be no alternative but a drying out process, which can be most effectively provided by confinement in a correctional institution.
[517]*517With respect to the harshness of the sentence, from the colloquy on defendant’s guilty plea it is clear that defendant fully appreciated that he could serve up to five years in prison for his crime.

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Commonwealth v. Turecki
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Bluebook (online)
420 A.2d 658, 278 Pa. Super. 511, 1980 Pa. Super. LEXIS 2757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-turecki-pasuperct-1980.