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COMMONWEALTH PENNSYLVANIA v. KEITH ALLEN BOLYARD (07/12/78)

decided: July 12, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
KEITH ALLEN BOLYARD, APPELLANT



No. 291 March Term, 1977, Appeal, In Forma Pauper's, from the judgment of sentence in the Court of Common Pleas, Criminal Division of the County of York. No. 960 Criminal Action 1976, Criminal Attempt Indecent Assault, Simple Assault, No. 971 Criminal Action 1976, Aggravated Assault.

COUNSEL

H. Stanley Rebert, First Assistant Public Defender, York, and John H. Chronister, Public Defender, York, for appellant.

Floyd P. Jones and Richard H. Horn, Assistant District Attorneys, and Donald L. Reihart, District Attorney, York, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Van der Voort, J., concurs in the result. Price and Hester, JJ., dissent.

Author: Hoffman

[ 256 Pa. Super. Page 59]

Appellant contends that the lower court abused its discretion in imposing manifestly excessive sentences. Because the record does not contain sufficient information to allow our Court to assess this claim, we vacate the judgments of sentence and remand for resentencing.

On November 22, 1976, appellant pleaded guilty in the York County Court of Common Pleas to charges of aggravated assault,*fn1 attempted rape,*fn2 simple assault,*fn3 and indecent assault.*fn4 The aggravated assault charge stemmed from a June 27, 1976 incident in which appellant molested a one year old girl. The remaining charges derived from an August 6, 1976 sexual assault upon a seven year old girl. After accepting appellant's guilty pleas, the lower court ordered the York County Probation Department to conduct a presentence investigation and to arrange a complete psychiatric evaluation of appellant, including a psychiatrist's recommended disposition. On January 10, 1977, the lower court sentenced appellant to consecutive 5-10 year terms of imprisonment on the charges of attempted rape and aggravated assault; the court suspended sentence on the remaining two charges. The record does not contain a transcript of the sentencing proceedings, a copy of the pre-sentence report, or a copy of the psychiatric evaluation. After the docketing of the instant appeal, the lower court filed an opinion pursuant to Pa.R.A.P. 1925, in which it noted that

[ 256 Pa. Super. Page 60]

    the sentences imposed were within the maximum limits provided by the Crimes Code.*fn5

Appellant now contends that the lower court abused its discretion in imposing sentences of manifestly excessive duration. In particular, appellant maintains that the lower court ignored information contained in the pre-sentence report which indicated that appellant had serious emotional and intoxication problems. According to appellant, mental deficiencies and a deprived childhood accounted for his present criminal behavior and suggested that confinement in a state hospital rather than a state correctional institution would be the more appropriate disposition. In essence, appellant contends that the sentencing court abused its discretion because it did not pay sufficient attention to appellant's individual circumstances.

The Sentencing Code*fn6 codifies Pennsylvania's system of indeterminate and individualized sentencing. In imposing a sentence, a court may choose one or more of the following dispositions: (1) probation, (2) a determination of guilt without further penalty, (3) partial confinement, (4) total confinement, and (5) a fine.*fn7 In making its choice, the sentencing 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."*fn8 This general principle, in turn,

[ 256 Pa. Super. Page 61]

    requires the sentencing court to focus upon two factors: "the particular circumstances of the offense and the character of the defendant." Commonwealth v. Martin, 466 Pa. 118, 133, 351 A.2d 650, 658 (1976). See also ABA Project on Minimum Standards of Justice, Standards Relating to Sentencing Alternatives and Procedures, § 2.2 (Approved Draft, 1968). Moreover, while Martin recognizes that the Pennsylvania system of indeterminate sentencing confers broad discretion upon the sentencing court, ". . . the court's discretion must be exercised ...


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