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COMMONWEALTH v. RIGGINS (12/11/74)

decided: December 11, 1974.

COMMONWEALTH
v.
RIGGINS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Lancaster County, No. 1511 of 1973, in case of Commonwealth of Pennsylvania v. Robert Clyde Riggins.

COUNSEL

William C. Haynes, Assistant Public Defender, and Theodore S. Danforth, Public Defender, for appellant.

James R. Leonard, Jr., Assistant District Attorney, and D. Richard Eckman, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Dissenting Opinion by Hoffman, J. Dissenting Opinion by Cercone, J. Dissenting Opinion by Spaeth, J.

Author: Price

[ 232 Pa. Super. Page 33]

Appellant was found guilty by a jury of a violation of The Uniform Controlled Substance, Drug, Device and Cosmetic Act for possession of 53.9 grams of marijuana.*fn1 He was later sentenced to two to five years imprisonment and a $100 fine.*fn2 In this appeal, appellant contends

[ 232 Pa. Super. Page 34]

    that the lower court abused its discretion in imposing sentence upon appellant, in view of the fact that others charged and convicted in Lancaster County of the same or more serious offenses were granted less severe sentences.

The trial judge has broad discretion in imposing sentence. Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1971); Commonwealth v. Cox, 441 Pa. 64, 270 A.2d 207 (1970). If the sentence imposed is within statutory limits, there is no abuse of discretion unless the sentence is manifestly excessive so as to inflict too severe a punishment. Commonwealth v. Hill, 453 Pa. 349, 310 A.2d 88 (1973); Commonwealth v. Person, 450 Pa. 1, 297 A.2d 460 (1972); Commonwealth v. Wrona, supra; Commonwealth v. Warner, 227 Pa. Superior Ct. 291, 324 A.2d 361 (1974); Commonwealth v. Zelnick, 202 Pa. Superior Ct. 129, 195 A.2d 171 (1963), cert. denied, 377 U.S. 1006 (1964); Commonwealth v. Pouls, 198 Pa. Superior Ct. 595, 182 A.2d 261 (1962). This court has the power to modify an obviously excessive sentence, but has rarely utilized that power, preferring instead to rely on the good judgment of the trial judge. Commonwealth v. Zelnick, supra; Commonwealth v. Bilinski, 190 Pa. Superior Ct. 401, 154 A.2d 322 (1959); Commonwealth v. Warner, supra.

Although it is not clear from appellant's brief, apparently he is contending that he received a more severe sentence, because of his exercise of the right to stand trial, than defendants who had pled guilty. In support of this contention, appellant cites four examples of offenders charged and convicted of the same or more serious offenses in Lancaster County who received lighter sentences. The four convictions, one in 1973 and three in 1974, involved possession or delivery of heroin or marijuana. The defendants were sentenced to periods of imprisonment ranging from three months to twenty-three months, and, in one case, two years probation.

[ 232 Pa. Super. Page 35]

In each case the defendant had pled guilty to the charges, and was sentenced pursuant to plea bargains entered into with the District Attorney's Office. The four defendants had no connection with the appellant, and there is no indication as to whether the four were tried before the same judge.

We find that the four isolated instances cited by appellant do not indicate a concerted attempt by the trial courts of Lancaster County to impose more severe sentences upon those who request a trial as opposed to those defendants who plead guilty.*fn3 To randomly choose four example cases over a two-year period and to impute appellant's conclusions, is to assign immense consequences to the sparse and self-serving record presented by appellant. Appellant provides no information as to the disposition of other convictions in Lancaster County for similar offenses during 1973 and 1974, nor does he negate possible extenuating circumstances involved in any of the four cases.*fn4 In light of these obvious

[ 232 Pa. Super. Page 36]

    difficulties, we find that appellant's contention has no basis.

Appellant's imposed sentence was within the statutory limits, and, despite appellant's contention, we do not view the sentence manifestly excessive so as to constitute too severe a punishment.

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Hoffman, J.:

Appellant contends that the lower court abused its discretion in imposing sentence.

On January 22, 1974, appellant was convicted by a jury of violating ยง 780-113(a) (30) of The Uniform Controlled Substance, Drug, Device and Cosmetic Act,*fn1 which prohibits, inter alia, the possession of a controlled substance with intent to deliver.*fn2 Appellant was found in possession of 53.9 grams (approximately two ounces) of marijuana. Appellant is a married man, age twenty-one, with several small children and has no prior criminal record. The trial judge sentenced appellant to pay a fine of $100.00 and to undergo imprisonment for a period of not less than two nor more than five years, the maximum permissible period of incarceration.*fn3

The sentence imposed is within the statutory limits. The appellate courts of this Commonwealth have stated many times that we will not interfere with the discretion of the trial court in the imposition of sentence. See, e.g., Commonwealth v. Pouls, 198 Pa. Superior Ct. 595, 182 A.2d 261 (1962). We have recently stated, however, that the appellate courts do possess the authority to modify a sentence which is manifestly excessive and

[ 232 Pa. Super. Page 37]

    inflicts too severe a punishment. Commonwealth v. Warner, 227 Pa. Superior Ct. 291, 324 A.2d 361 (1974). See also, Commonwealth v. Pouls, supra.*fn4 This appellate power is reserved for the extraordinary case; we normally defer to the sentencing discretion of our lower courts. When a sentence is within the legal limit set by our legislature, this Court is, and should be, loathe to tamper with the trial court's discretion. In the rare case, however, where the sentence imposed raises concerns of constitutional dimensions, this Court must exercise its powers of appellate review. Cf. Baker v. United States, 412 F. 2d 1069 (5th Cir. 1969). This case falls within that narrow category.

Appellant argues that the trial judge abused his discretion in imposing the maximum period of incarceration

[ 232 Pa. Super. Page 38]

    on a first offender found in possession of a rather small amount of marijuana.*fn5 Appellant cites instances where defendants guilty of the same or similar crimes in 1973 and 1974 were given much more lenient sentences by the same court: (1) for possessing one pound ten ounces of marijuana with intent to deliver, a defendant received a sentence of three to twelve months; (2) for three counts of delivering marijuana to an undercover agent, a defendant received a sentence of three to twelve months; (3) for possession with intent to deliver of nineteen bags of heroin, a defendant received a sentence of eleven to twenty-three months; and (4) for possession with intent to deliver of nineteen bags of heroin, a defendant was sentenced to two years probation. In a vacuum, such sentencing disparity proves little, since we are possessed with less information of the surrounding circumstances than the trial judge. These four defendants, however, had one factor in common -- they all pleaded guilty. The appellant in this case exercised his constitutional right to stand trial. The disparity in the sentences imposed cannot be explained by surrounding circumstances because the appellant was a first offender in possession of only two ounces of marijuana.

This court has recently stated ". . . that a plea of guilty may be a proper factor for a judge to consider in deciding whether to give a more lenient sentence. It does not follow that the converse is true. A plea of not guilty or a demand for a jury trial are not factors that a judge should consider in deciding whether to give a more severe sentence." Commonwealth v. Staley, 229 Pa. Superior Ct. 322, 324 A.2d 393 (1974). In the present case, the Commonwealth's brief concedes that

[ 232 Pa. Super. Page 39]

    appellant "received a sentence which was more severe than usual for the offense charged." The clear implication is that appellant received the maximum possible jail term because he exercised his constitutional rights. An affirmance of this sentence can only place pressure upon defendants, and defense counsel, to plead guilty rather than to stand trial. A practice which may deter the exercise of the constitutional rights to plead not guilty and/or demand a jury trial cannot be tolerated.

Although this opinion is based on the possible "chilling effect" on constitutional rights which may result, it is important to note the severity of the sentence imposed. Appellant received a possible jail term of five years for possessing two ounces of marijuana with intent to deliver. In other counties of this Commonwealth, a defendant, especially a first-time offender, would be placed in a pre-trial probationary program,*fn6 and would receive no jail term at all.

It must be reiterated that this appeal presents an extraordinary situation. Modification of sentences is a serious matter and should not be resorted to lightly. It would be remiss, however, for this Court to allow a first offender found in possession of two ounces of marijuana to be sentenced to a five-year jail term, while the same lower court has ...


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