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COMMONWEALTH PENNSYLVANIA v. STEVE FORNATARO (07/12/78)

SUPERIOR COURT OF PENNSYLVANIA


decided: July 12, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
STEVE FORNATARO, APPELLANT

No. 347 April Term, 1977, Appeal of Sentence from Court of Common Pleas, Criminal Division, Lawrence County, at No. 635-636-637 of 1976.

COUNSEL

William M. Panella, New Castle, for appellant.

Donald E. Williams, District Attorney, New Castle, submitted a brief for Com., appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price and Van der Voort, JJ., dissent. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Hoffman

[ 257 Pa. Super. Page 400]

Appellant challenges his sentence as manifestly excessive. For the reasons which follow, we remand for resentencing.

On October 20, 1976, appellant pleaded guilty to theft,*fn1 burglary,*fn2 and receiving stolen property.*fn3 On December 1, 1976, the lower court sentenced appellant to imprisonment for two to five years for theft, one and a half to five years for burglary, and one to four years for receiving stolen property. The court ordered that all sentences would run concurrently with the theft sentence. This appeal followed.

[ 257 Pa. Super. Page 401]

We believe that appellant's excessiveness contention calls into question not only the length of the sentence, but also propriety of the sentencing process. This is true because appellant argues implicitly, that the excessiveness stems from the lower court's failure to impose a sentence in conformity with Pennsylvania's system of individualized sentencing. In essence, appellant's claim is that a sentence imposed without such individual attention is an abuse of discretion. Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1971); Commonwealth v. Warner, 227 Pa. Super. 291, 324 A.2d 361 (1974).

Pennsylvania's system of individualized sentencing is codified in the Sentencing Code*fn4 which provides, in pertinent part: ". . . the court shall follow the general principle that the 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 needs of the defendant."*fn5 In Commonwealth v. Martin, 466 Pa. 118, 133, 351 A.2d 650, 658 (1976), our Supreme Court stated that in order to make such an individualized determination, the lower court must consider "the particular circumstances of the offense and the character of the defendant." See also ABA Project on Minimum Standards of Justice, Standards Relating to Sentencing Alternatives and Procedures, ยง 2.2 (Approved Draft, 1968). The Court acknowledged that while sentencing is usually left to the sound discretion of the trial court, "the court's discretion must be exercised within certain procedural limits, including the consideration of sufficient and accurate information." supra, 466 Pa. at 131-132, 351 A.2d at 657 (emphasis added).

In Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), our Supreme Court again addressed the issue of how to conform the sentencing process to Pennsylvania's requirements of individual sentencing. The Court held that "the

[ 257 Pa. Super. Page 402]

    sentencing process will be improved by requiring a trial court to state, on the record, the reasons for the sentence imposed." In support of this requirement, the Court emphasized that "[w]ithout a statement of reasons on the record, it is difficult to perceive how an appellate court can discern whether the trial court has exercised its discretion [in accordance with the principles of Martin ] . . . Absent a statement of reasons, this Court will not be able to ensure that trial courts comply with the requirements of Pennsylvania's system of individualized sentencing," supra, 474 Pa. at 133, 377 A.2d at 149, fn. 24. In short, an appellate court cannot determine whether a particular sentence is excessive and thereby constitutes an abuse of discretion unless it knows why the lower court imposed that sentence and what information it considered.

In Commonwealth v. Wertz, 252 Pa. Super. 584, 384 A.2d 933 (1978), our Court applied the lessons of Martin and Riggins. In Wertz, appellant contended that the sentence imposed was manifestly excessive. Because the record did not contain an articulation of reasons in support of the sentencing decision, our Court could not determine whether the lower court abused its discretion. Accordingly, we remanded for resentencing pursuant to Riggins.

In the instant case, the record is devoid of a statement of reasons for the imposition of the particular sentence chosen. Consequently, our Court cannot undertake the kind of meaningful appellate review of the sentencing process contemplated by our Supreme Court in Riggins. See also Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977). Accordingly, we vacate the judgment of sentence and remand to afford the trial court an opportunity to resentence appellant and to include a statement of reasons for the sentence imposed.*fn6

Judgment of sentence vacated and case remanded for proceedings consistent with this opinion.


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