Theodore S. Danforth, Thomas E. Harting, William C. Haynes, Richard C. Shay, Lancaster, for appellants.
D. Richard Eckman, Dist. Atty., Louise G. Herr, Asst. Dist. Atty., Lancaster, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., concurs in the result. Nix, J., filed a dissenting opinion in which Jones, C. J., joins.
These six appeals arise from appellants' convictions in the Court of Common Pleas of Lancaster County, for violations of the Uniform Controlled Substance, Drug, Device and Cosmetic Act,*fn1 all of which occurred during the months of April to June, 1972, Appellants raise no objections to their convictions. However, they contend that their sentences were imposed in accordance with a policy agreed to in advance by the three judges of the court and the district attorney's office without reference to either appellants' individual characteristics or to the circumstances of the particular offenses. An equally divided Superior Court affirmed the sentences in a per
curiam order.*fn2 Judge Spaeth, in his opinion in support of reversal joined by Hoffman and Cercone, JJ., stated:
"[T]he record demonstrates: That the three judges had agreed in advance that the sentence to be imposed for a sale of heroin should be three to ten years imprisonment plus a fine, without consideration being given to the defendant's individual characteristics, the sentence to be consecutive if more than one sale were proved; and that each of the six appellants was sentenced in accordance with this agreement. From these facts it follows that the sentences were illegal."*fn3
We agree and vacate the sentences imposed and remand for resentencing.
Appellants were all charged with the illegal sale of controlled substances. There was no evidence of a conspiracy among the appellants, and no claim is made that the sentences imposed were based on such an allegation.
Appellant Harry Martin appeared before the Honorable Wilson Bucher on September 21, 1972, and pleaded guilty to three sales of heroin. The undercover agents involved gave a brief recitation of the circumstances of the sales, and an inquiry was made into the voluntariness of the guilty plea and of the waiver of trial by jury. Thereafter, defense counsel and appellant's mother were allowed to present evidence concerning appellant's background.*fn4 At 10:00 a. m. the court recessed
until 2:00 p. m.*fn5 When court reconvened, Judge Bucher imposed a sentence of three to ten years imprisonment to be served consecutively, and a fine of $2,500 for each of the three sales, i. e., nine to thirty years and $7,500.*fn6
Appellant Rafael Nieves was tried before the Honorable W. G. Johnstone, Jr., with a jury on September 25, 1972, and was found guilty of five counts of selling heroin. Appellant's attorney, at the outset of the trial, moved for a pretrial psychiatric examination because there was evidence that appellant was insane. He also moved for a change of venue asserting that the court had adopted an illegal sentencing policy. Both motions were denied without comment. At the sentencing hearing, only passing reference was made to appellant's background and mental capacity, and the question whether appellant was an addict, raised by defense counsel, was ignored.*fn7 A sentence of three to ten years' imprisonment,
to be served consecutively, and a fine of $100 for each count, was then imposed, i. e., fifteen to fifty years and $500.
Appellant Warren Canoles was tried before Judge Bucher, sitting with a jury; he was found guilty on September 28, 1972, of three counts of selling heroin. The jury added the words "with recommendation for treatment" to its verdict form. At the sentencing hearing, testimony was presented to the effect that appellant was addicted to heroin, that he had no prior offenses other than a minor drinking violation, and that he did not sell heroin for profit. These contentions were neither denied nor contradicted, and the court, before imposing sentence, made no further inquiry into any of these matters. During the hearing, the court made the following comments:
"He [appellant] was found guilty here of sales and we treated the others the same way.
I shouldn't have to torture myself. The court has already determined it's three to ten years is that it's going to do. Why should I do any different in this case?
The legislature says it's serious and they expect the courts to impose sentences to deter. I haven't heard any reason why we shouldn't give the standard sentence we have been giving this term of court.
The rehabilitation is a legislative and executive matter. I have nothing to do with rehabilitation.
I don't think these sentences mean what they say, either.
I am going to sentence just as we have sentenced in the past."
These comments were made in response to attempts by defense counsel and an undercover agent to show that appellant Canoles sold only to users; that he was heavily addicted; that he was not a threat to the community; and that he was in need of treatment. These mitigating and extenuating circumstances were deemed irrelevant. The judge sentenced appellant "just as we have sentenced in the past": three to ten years imprisonment, to be served consecutively, and a fine of $100 for each count, i. e., nine to thirty years and $300.
Appellants Hector Burgos and James Keyes appeared separately before the Honorable W. Hensel Brown on September 29, 1972. Appellant Burgos pleaded guilty to two counts of selling heroin, and appellant Keyes pleaded guilty to three counts of selling heroin, two counts of selling cocaine and one count of selling marijuana.
The court made virtually no inquiry into either the circumstances of the crimes or appellants' backgrounds at either sentencing ...