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COMMONWEALTH PENNSYLVANIA v. TERRY FRANCIS WERTZ (04/13/78)

SUPERIOR COURT OF PENNSYLVANIA


decided: April 13, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
TERRY FRANCIS WERTZ, APPELLANT

No. 937 April Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Blair County, at No. 314 of 1976.

COUNSEL

Oliver E. Mattas, Jr., Altoona, for appellant.

William J. Haberstroh, Altoona, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion. Price, J., dissents because he does not interpret Commonwealth v. Kostka,

Author: Jacobs

[ 252 Pa. Super. Page 585]

On June 1, 1976, appellant Terry Francis Wertz pleaded guilty to a charge of corruption of minors. He was sentenced to serve eleven to twenty-two months imprisonment. In this appeal, appellant's sole contention is that the sentence imposed was manifestly excessive under the circumstances and in light of the psychiatric evaluation and presentence investigation presented at the date of sentencing;*fn1 he challenges neither the legality of his sentence nor the propriety of the procedure whereby it was imposed. For the reasons developed below, we vacate the judgment of sentence and remand for resentencing.

It is well-settled that the sentence to be imposed upon a convicted defendant is within the broad discretion of the sentencing judge. See Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). Here, however, we are unable to determine whether the sentencing judge abused his discretion. The record contains neither an opinion by the sentencing judge nor an articulation of the reasons for his sentencing decision. In these circumstances, we must vacate the judgment of sentence and remand for resentencing, together with instructions to the sentencing judge that he file a statement of reasons for the particular sentence imposed. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977).*fn2

[ 252 Pa. Super. Page 586]

Judgment of sentence vacated and the case remanded for resentencing.

SPAETH, Judge, concurring:

I concur that the judgment of sentence must be vacated and the case be remanded for resentencing. I do not, however, find that "regrettabl[e]".

No aspect of the criminal justice system more deserves criticism than the process of sentencing. Many sentences are arbitrarily lenient, many others arbitrarily severe. By its decisions in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), and Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976), the Supreme Court has expressed its determination that sentences must become more rational and just.

One should not suppose -- as both the majority and dissent seem to suppose -- that Riggins and Martin represent new law, which the Supreme Court has decided should be applied retroactively. The premise of indeterminate sentencing, which is Pennsylvania's system, has always been that the sentencing judge in formulating the sentence will take into account the nature of the crime and the character of the defendant. The responsibility of the Supreme Court and of this court to review the sentence has long been established by statutes. And finally, the responsibility of the sentencing judge to state the reasons for the sentence has long been established by rules of the Supreme Court and of this court. The authorities in support of these propositions are collected

[ 252 Pa. Super. Page 587]

    and discussed in Riggins and Martin, both by the Supreme Court and in dissent in this court. The difficulty has been that generally speaking, no one has paid much attention to these authorities. In Riggins and Martin the Supreme Court has decided that such inattention must stop. Rather than regret, we should welcome, and should do all we can to implement, the Court's decision.


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