decided: August 17, 1977.
COMMONWEALTH OF PENNSYLVANIA
ROBERT CLYDE RIGGINS, APPELLANT
William C. Haynes, Asst. Public Defender, Arlene R. Popkin, Craig Currie, Philadelphia, for appellant.
D. Richard Eckman, Dist. Atty., James R. Leonard, Jr., Asst. Dist. Atty., Joe C. Madenspacher, Lancaster, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., joins this opinion and files a concurring opinion. Pomeroy, J., files a concurring and dissenting opinion. Eagen, C. J., and Nix, J., concur in the result.
[ 474 Pa. Page 118]
Appellant was arrested for possession of 53.9 grams (approximately 1.9 ounces) of marijuana. After a jury trial in the Court of Common Pleas of Lancaster County, appellant was convicted of possession of a controlled substance with intent to deliver.*fn1 He was sentenced to serve two to five years imprisonment, fined $100 and ordered to pay the costs of prosecution. Appellant appealed to the Superior Court which affirmed judgment of sentence. Commonwealth v. Riggins, 232 Pa. Super. 32, 332 A.2d 521 (1974) (4-3) (separate dissenting opinions were filed by Hoffman, Cercone and Spaeth, JJ.). We granted allocatur.*fn2
Appellant contends that his sentence should be vacated and the case remanded to the trial court for resentencing because the trial court did not state its reasons for the particular sentence imposed.*fn3 We agree. We therefore vacate judgment of sentence and remand for resentencing.
[ 474 Pa. Page 119]
After the jury returned its verdict of guilty, appellant's counsel informed the court that appellant was waiving his right to file motions for a new trial and in arrest of judgment. The trial court then proceeded to sentence appellant. The trial court did not request a presentence report.*fn4
During the trial, testimony established that appellant was 21 years old, married and the father of three young children. He had been employed at a carwash, but was laid off a month before trial when the carwash was closed for repairs. Appellant had no prior criminal record.
During sentencing, the following colloquy occurred:
"THE COURT: Can I see the Indictment, please.
[Whereupon, the Indictment was presented to the Court at this point.]
THE COURT: All right, does he have any prior record officer?
THE POLICE OFFICER: No, sir, no prior record.
THE COURT: All right, Mr. Haynes. [Defense counsel]
MR. HAYNES: Mr. Riggins is here before you for sentencing. We do not wish to make any motions.
As was brought out at the trial, he is twenty-one years old. He is married. He is not currently working because of the place he was employed at had to undergo repairs.
Other than that, I have nothing to add.
THE COURT: Now, I don't suppose you knew this, Mr. Riggins, but this offense that you have been convicted of
[ 474 Pa. Page 120]
calls for a maximum sentence of fifteen years in the Penitentiary and a fine up to Two Hundred and Fifty Thousand Dollars [$250,000.00].
MR. HAYNES: Your Honor, excuse me; I thought it was a maximum sentence of five years. I may be wrong on that.
THE COURT: He is indicted under Section 30. It is a felony.
Now, this is classified under Classification Number One.
MR. HAYNES: I don't have a copy of the Act in front of me.
THE COURT: Well, you can look at mine, if you wish. I didn't tell the Defendant that I am going to give him fifteen years. I have no intention of it.
MR. HAYNES: Your Honor, I was under the impression that for sale it is the maximum sentence of fifteen years and a maximum fine of Two Hundred and Fifty Thousand Dollars [$250,000.00].
THE COURT: Yes.
MR. HAYNES: And for this offense I was under the impression that the maximum sentence was five years in jail.
THE COURT: But he is charged under Section 30 which is the Manufacture, Delivery and Possession with Intent to Manufacture or Deliver a Controlled Substance.
You say that the only question is whether this is classified as a narcotic drug, and Schedule One includes marijuana. Of course, Schedule One includes opium and any derivatives of it.
MR. HAYNES: Yes, sir, I know that marijuana appears in Schedule One.
THE COURT: It is set out alone.
All right, he has been indicted and found guilty of Section 30.
[ 474 Pa. Page 121]
All right, I am going to sentence him under Section 30[(f)(2)].*fn5
The sentence of the Court is that you pay to the Commonwealth for the use of the County a fine of One Hundred Dollars [$100.00], pay the costs of prosecution and undergo imprisonment in the State Correctional Institution
[ 474 Pa. Page 122]
at Huntingdon for a period of not less than two nor more than five years.
Appellant asserts that his sentence should be vacated and the case remanded for resentencing because the trial court did not state its reasons on the record for the imposition of its sentence. We agree. When a trial court imposes judgment of sentence, its reasons for the imposition of sentence should appear on the record.
A. Pennsylvania has a system of indeterminate sentencing,*fn6 which carries with it "an implicit adoption of the philosophy of individual sentencing." Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). This system of indeterminate sentencing "necessitates the granting of broad discretion to the trial judge, who must determine, among the sentencing alternatives and the range of permissible penalties, the proper sentence to be imposed." Id. 466
[ 474 Pa. Page ]
Page 123The sentencing decision is of enormous consequence. It is the culmination of an elaborate and complicated system of procedural and substantive law whose ultimate rationale is the efficient and reliable identification of persons who have committed criminal harms. At the sentencing stage, the decision must finally be made as to what sanction should be imposed, a decision whose total social impact is equaled only by its import to the individual, whose life and liberty are at stake. The American Bar Association, Project on Minimum Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures (Approved Draft, 1968) notes quite accurately the very delicate balance required in sentencing:
"The consequences of a sentence are of the highest order. If too short or of the wrong type, it can deprive the law of its effectiveness and result in the premature release of a dangerous criminal. If too severe or improperly conceived, it can reinforce the criminal tendencies of the defendant and lead to a new offense by one who otherwise might not have offended so seriously again. . . . A sentence which is not in some fashion limited in accordance with the particular offense can lead to a system of incomparable brutality. Per contra, a sentence or pattern of sentences which fails to take due account of the gravity of the offense can seriously undermine respect for law."
The American Bar Association has noted that the absence of standards for determining the proper sentence to impose is particularly discordant in a system that is otherwise committed to the rule of law:
"Among the ironies of the law, there are many surrounding the manner in which sentences are imposed in the majority of our jurisdictions. One of the most striking involves a comparison of the methods for determining guilt and the methods for determining sentence. The
[ 474 Pa. Page 125]
guilt-determining process is hedged in with many rules of evidence; with many tight procedural rules, and, most importantly for present purposes, with a carefully structured system of appellate review designed to ferret out the slightest error. Yet in the vast majority of criminal convictions in this country -- 90% in some jurisdictions; 70% in others -- the issue of guilt alone is not disputed.
What is disputed and, in many more than the guilty-plea cases alone, what is the only real issue at stake, is the question of the appropriate punishment. But by comparison to the care with which the less-frequent problem of guilt is resolved, the protections in most jurisdictions surrounding the determination of sentence are indeed miniscule. . . . It is not an overstatement to say of these jurisdictions that in no other area of our law does one man exercise such unrestricted power."*fn11
American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Appellate Review of Sentences, Introduction at 1-2 (Approved Draft, 1968); see McGautha v. California, 402 U.S. 183, 252-87, 91 S.Ct. 1454, 1489-1508, 28 L.Ed.2d 711 (1971) (Brennan, J., dissenting).*fn12
[ 474 Pa. Page 126]
Appellant maintains that requiring the trial court to state its reasons for the imposition of sentence will help rationalize the sentencing process. In certain contexts, courts have recognized the value of requiring a statement of reasons for the imposition of a particular sentence to prevent improper considerations from affecting the sentence imposed. In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the defendant received an increased sentence following a new trial. He then alleged that the increased sentence violated due process because it penalized him for attempting to vindicate his constitutional rights which were violated in his first trial. The United States Supreme Court reasoned that due process does not permit vindictiveness against a defendant who has successfully attacked his conviction to play a part in the sentence he receives after a new trial. The Court recognized that fear of such vindictiveness may unconstitutionally deter a defendant from attacking his first conviction. The Court therefore held that:
"In order to assure that absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal."
Id. at 725-26, 89 S.Ct. at 2080-81; accord, Commonwealth v. Allen, 443 Pa. 96, 277 A.2d 803 (1971).
[ 474 Pa. Page 127]
Courts have also been required to articulate reasons for the imposition of sentence when the original sentence may have been based upon:
"(1) misinformation of constitutional magnitude, such as an inaccurate criminal record, Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), (2) a record comprising prior unconstitutional convictions, e.g. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), (3) the effect of a simultaneous sentence and conviction upon a more serious count of the indictment, which was later invalidated, McGee v. United States, 462 F.2d 243 (2d Cir. 1972), or (4) failure of the court to receive and consider mitigating circumstances, United States v. Malcolm, 432 F.2d 809, 818 (2d Cir. 1970)."
United States v. Brown, 479 F.2d 1170, 1173 (2d Cir. 1973).
Judges, lawyers, scholars and other observers of the criminal justice system, have recognized the problem of unfettered judicial discretion in the sentencing process, and have almost uniformly called for the requirement that a trial court articulate the reasons for its sentence. E.g., K. Davis, Discretionary Justice (1969); M. Frankel, Criminal Sentences, Law Without Order (1973); Bayley, Good Intentions Gone Awry -- A Proposal for Fundamental Change in Criminal Sentencing, 51 Wash.L.Rev. 529 (1976); Berger, Reducing Sentencing Disparity: Structured Discretion and the Sentencing Judge, 32 J.Miss.B. 414 (1976); Berger, Equal Protection and Criminal Sentencing: Legal and Policy Considerations, 71 Nw.Univ.L.Rev. 29 (1976); Berkowitz, The Constitutional Requirement for a Written Statement of Reasons and Facts in Support of the Sentencing Decision: A Due Process Proposal, 60 Iowa L.Rev. 205 (1974); Coburn, Disparity in Sentences and Appellate Review of Sentencing, 25 Rutgers L.Rev. 207 (1971); Frankel, Lawlessness in Sentencing, 41 Univ.Cinn.L.Rev. 1 (1972); Horowitz, Improving the Criminal Justice System: The Need for a Commitment, 51 Wash.L.Rev. 607 (1976); Kutak and Gottschalk, In Search
[ 474 Pa. Page 128]
of a Rational Sentence: A Return to the Concept of Appellate Review, 53 Nebraska L.Rev. 463 (1974); Wyzanski, A Trial Judge's Freedom and Responsibility, 65 Harv.L.Rev. 1281 (1952); Comment, Criminal Sentencing: An Overview of Procedures and Alternatives, 45 Miss.L.J. 782 (1974); Comment, Appellate Review of Sentences: A Survey, 17 St. Louis Univ.L.J. 221 (1972); Comment, Sentencing Study, 52 Wash.L.Rev. 103 (1976); Comment, Appellate Review of Primary Sentencing Decisions: A Connecticut Case Study, 69 Yale L.J. 1453 (1960); Note, Appellate Review of Sentences and the Need for a Reviewable Record, 1973 Duke L.J. 1357 (1973); Note, Toward Lawfulness in Sentencing: Thank You Professor Dworkin, 5 Rutgers-Camden L.Rev. 80 (1973); Note, Criminal Law -- Authority and Scope of Appellate Review of Criminal Sentences Within the Statutorily Prescribed Maximum, 22 Univ.Kansas L.Rev. 606 (1974).
In addition, the American Bar Association,*fn13 the National Advisory Commission,*fn14 and the Model Sentencing Code*fn15 all support the requirement that a trial court articulate the reasons for its sentence.
[ 474 Pa. Page 129]
The benefits of requiring the trial court to state its reasons for the imposition of its sentence are manifold:*fn16 First, requiring the trial court to articulate its reasons for selecting a sentence will promote more thoughtful consideration of relevant factors and will help rationalize the sentencing process.*fn17 It will safeguard against arbitrary decisions and prevent consideration of improper and irrelevant factors. It will minimize the risk of reliance upon inaccurate information contained in the presentence report.*fn18 A statement
[ 474 Pa. Page 130]
of reasons may aid correction authorities if the sentence results in a commitment, and may have therapeutic value if the sentencing judge explains his or her reasons to the defendant.*fn19 Requiring a trial court to provide a reasoned basis for the sentence imposed may enhance the court's legitimacy as perceived by judges themselves and participants in the criminal justice system.*fn20 It will aid courts in attaining their institutional objective of dispensing equal and impartial justice and will demonstrate to society that these goals are being met.*fn20a Reasoned sentencing
[ 474 Pa. Page 131]
decisions may encourage the development of sentencing criteria*fn21 and reduce disparity in sentences -- decreasing the number of unusually lenient as well as unusually harsh sentences.*fn22 Finally, a statement of reasons will be invaluable in aiding appellate courts to ascertain whether the sentence imposed was based upon accurate, sufficient and proper information.*fn23
Critics of the requirement that a trial court articulate the reasons for its sentence assert that sentencing is not amenable to structured decision making and that requiring a statement of reasons will be an unwarranted burden upon
[ 474 Pa. Page 132]
the trial court. We are convinced that these arguments are without merit:
"Two major arguments have been advanced in support of the general rule that . . . judges need not justify their sentences. One is that sentencing is not amenable to structured decision-making: 'Frequently, the decision will rest on the application of unarticulated principles and factors lying at the threshold of the conscious.' [ United States v. Schipani, 315 F.Supp. 253, 259 (E.D.N.Y.), aff'd 435 F.2d 26 (2d Cir. 1970), cert. denied, 401 U.S. 983, 91 S.Ct. 1198, 28 L.Ed.2d 334 (1971)]. Presumably, those 'unarticulated principles' have to do with the ultimate goals of rehabilitation, deterrence, and punishment. Although it has been argued that trial and appellate courts should more closely analyze sentences as possible means of attaining those goals, it should be noted that certain less cosmic 'reasons' for severe sentences have been designated as improper. For example, the fact that the defendant stood trial or refused to admit his guilt should in most jurisdictions be irrelevant to the sentencing decision. Such reasons now become part of the record only if the sentencing judge is unusually frank or if he blunders. To say that recorded reasons will not necessarily be honest overlooks the potentially benign, standardizing effect of appellate instruction as to proper reasoning in sentencing.
The other principal argument for the present system is that the recording of sentence justification would place a useless burden on the . . . judge's time. But the importance of reasoned sentencing clearly warrants the burden.
[W]e apply [the requirement that decisions be justified] . . . to affairs of clearly less consequence, yet we place no burden of explanation upon the judge who decides that the defendant before him must be locked up for ten years rather than five or one."
Note, Appellate Review of Sentences and the Need for a Reviewable Record, 1973 Duke L.J. 1357, 1375 (1973).
As Judge Friendly noted in McGee v. United States, 462 F.2d 243, 247 (2d Cir. 1972):
[ 474 Pa. Page 133]
"Courts, which have so rightly imposed a requirement of the statement of reasons on local draft boards . . . and on administrative agencies . . . are not exempt from this duty in appropriate circumstances." (citations omitted)
After evaluating the various arguments, we are persuaded that the sentencing process will be improved by requiring a trial court to state, on the record, the reasons for the sentence imposed.*fn24 Such a procedure is consistent with our Rules of Appellate Procedure which provide:
"Upon receipt of the notice of appeal the judge who entered the order appealed from, if the reasons for the order do not already appear of record, shall forthwith file of record at least a brief statement, in the form of an opinion, of the reasons for the order for the rulings or
[ 474 Pa. Page 134]
other matters complained of, or shall specify in writing the place in the record where such reasons may be found."
The Legislature, in recognizing the need for sentencing guidelines, has enacted the Sentencing Code.*fn25 Section 1321(a) of the Code provides for five possible dispositions-probation, guilt without further penalty, partial confinement, total confinement, and a fine.*fn26 The Legislature has adopted the following basic policy to guide the trial court in imposing sentence: "[T]he sentence imposed should call for the minimum amount of confinement that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative need of the defendant."*fn27 The Legislature has also enumerated specific factors which the trial court should consider in determining which of the five possible dispositions is appropriate for a particular defendant.*fn28 These factors provide the sentencing court with
[ 474 Pa. Page 135]
guidelines for the articulation of the reasons for its sentencing decision. Absent a statement of reasons, the record will not reveal whether the legislatively mandated factors have been considered.
[ 474 Pa. Page 136]
B. Now that a trial court is to articulate the reasons for its sentence, it follows that a defendant who seeks to challenge the propriety of his or her sentence should first present his or her claim to the trial court. This practice will afford the trial court an opportunity to reconsider its sentence and will give an appellate court the benefit of the trial court's views. See Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). We request the Criminal Procedural Rules Committee to prepare a recommendation for the Court which provides rules of procedure consistent with this opinion. See Commonwealth v. Martin, 466 Pa. 118, 135, 351 A.2d 650, 659 (1976); Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972).
Appellant received a sentence of two to five years imprisonment, was fined $100 and ordered to pay the costs of prosecution. Although the trial court did not order a presentence report, the record reveals that appellant was 21 years old, married and the father of three small children. He was laid off from his job approximately one month before his trial because his place of employment was closed for repairs. Appellant had no prior criminal record. The trial court imposed the maximum sentence for conviction of possession of marijuana with intent to deliver.*fn29 However, no reasons appear on the record supporting the imposition of this sentence.*fn30 Pursuant to Pa.R.A.P. 1925, we vacate the
[ 474 Pa. Page 137]
judgment of sentence and remand the case to afford the trial court an opportunity to resentence appellant and to include a statement of reasons for the sentence imposed.
Judgment of sentence vacated and the case remanded for resentencing.
MANDERINO, Justice, concurring.
I join in the majority opinion of Mr. Justice Roberts. I add, however, that the appellant, who had no prior criminal record, has already suffered more punishment than can possibly be justified under the circumstances. On remand, the trial court should promptly order appellant discharged.
POMEROY, Justice, concurring and dissenting.
I fully agree with the decision of the Court that the time has come when we should require that a trial court, when it imposes judgment of sentence, place on the record its reasons for the imposition of the particular sentence chosen.*fn1 The multiple reasons for such a practice and the benefits which should accrue from it are cogently catalogued by Mr. Justice ROBERTS in his plurality opinion. Accordingly, I join in the request that the Criminal Procedural Rules Committee prepare a recommendation to this Court setting forth the procedures for implementing such a requirement. In doing so, I express the hope that this new departure does not signal a general expansion of the limited scope of appellate review of sentences which has heretofore prevailed in this jurisdiction.*fn2
[ 474 Pa. Page 138]
I cannot agree, however, with what I understand to be the disposition of the instant case. One of the issues raised by appellant, and the issue upon which the Superior Court divided, is the excessiveness of the sentence received by appellant. The trial court did not give a statement of reasons at the time of sentencing, nor, when the appeal was taken, did it comply with Rule 1925(a) of the Rules of Appellate Procedure.*fn3 As a result the present record contains insufficient information upon which to resolve the issue of whether appellant's sentence was excessive. This being the case, the proper procedure is to remand the case to the trial court with directions that it comply with the mandate of Pa.R.A.P. 1925(a). See Commonwealth v. Whitest, 458 Pa. 26, 326 A.2d 398 (1974); see also Commonwealth v. Garramone, 307 Pa. 507, 514, 161 A. 733, 735 (1932). Both parties to this appeal, of course, would be allowed to file new or supplemental briefs following the trial court's compliance with our order.
Rather than follow the procedure outlined above, however, the Court has chosen, in the words of the plurality opinion, to "vacate the judgment of sentence and remand the case to afford the trial court an opportunity to resentence appellant and to include a statement of reasons for the sentence imposed." Opinion of the Court, ante at 151. At this point, however, I see no reason to suggest to the trial court that it might wish to resentence appellant. Undoubtedly the trial court believed that the sentence it imposed was proper, and
[ 474 Pa. Page 139]
the only issue now is whether it was correct in its belief.*fn4 Moreover, by vacating the judgment of sentence and remanding for resentencing it appears that the Court is either deciding sub silentio that appellant's sentence was indeed excessive, or is giving this appellant the benefit of a totally prospective ruling. See note 1, supra. In my view, either result would be improper. Accordingly, I dissent from the Court's disposition of this case.