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.
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.
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
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].
MR. HAYNES: And for this offense I was under the impression that the maximum sentence ...