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COMMONWEALTH PENNSYLVANIA v. ERNEST COTTLE (11/03/78)

decided: November 3, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
ERNEST COTTLE, APPELLANT



No. 2191 October TERM, 1976, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia County, at No. 549 June Session, 1968.

COUNSEL

John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.

Deborah E. Glass, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.

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

Author: Van Der Voort

[ 260 Pa. Super. Page 87]

Appeal is taken from judgment of sentence rendered following revocation of probation. The questions presented here are whether a sentencing judge should be obliged to place upon the record his explanation as to sentencing, or write an opinion thereon; whether the judge in this case abused his discretion in sentencing appellant to confinement when the probation department recommended to the contrary; and whether the sentence was excessive.

The subject of the trial court's need to explain reasons for the sentence given has recently been much discussed. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), mandates that such reasons must be made part of the record. See also Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977) and Commonwealth v. Wertz, 252 Pa. Super. 584, 384 A.2d 933 (1978). This requirement has been met in this case by Judge BRAIG'S Opinion in which he stated his reasons for his sentence. Therein the sentencing judge pointed out that for four years, during which appellant had been arrested several times, he had not made himself available to probation officials. Consequently he was sentenced to confinement. The lower court opinion amply describes the facts which were the basis of the probation revocation and which gave rise to the sentencing. That opinion states as follows:

"On September 4, 1969 Ernest Cottle appeared before Judge Herbert Levin of the Philadelphia Court of Common Pleas and pled guilty to charges of Aggravated Robbery and Larceny of Motor Vehicle and Receiving Stolen Goods. On the Larceny and Receiving Stolen Goods charges, he was placed on five years probation to begin at the expiration of the sentence on the Robbery charge, the probationary period being from January 25, 1971 to January 25, 1976. During the probationary period, the defendant was arrested on charges of Burglary, Larceny, Receiving Stolen Goods and Violation of the Uniform Firearms Act. He failed to appear for three separate trials and hearings on these charges, and his whereabouts

[ 260 Pa. Super. Page 88]

    were unknown to anyone in the Courts or Probation Department from September 6, 1972 until his arrest on a Bench Warrant on March 13, 1976. The Bills of Indictments on the charges, which resulted in the three separate arrests during the probationary period, were either nolle prossed or dismissed in April of 1976.

"Defendant appeared before this Court (Judge Levin no longer being on the bench) for a Gagnon I hearing on June 2, 1976 and a Gagnon II hearing on June 22, 1976. At the Gagnon II hearing, this Court found that defendant had violated Judge Levin's sentence of probation on the larceny and Receiving charges, revoked that probation and imposed a sentence of incarceration of 2 1/2 to 5 years on the defendant. Specifically, the violation upon which defendant's probation was revoked was his failure to report to or cooperate with the Probation Department for approximately a four year period."

Furthermore, the Opinion of the court below fully answers the other assignments of error. We find wholly without merit the allegations of abuse of discretion as to sentencing and the claimed excessiveness of the sentence. For appellant to have absented himself from the processes of criminal justice for four years, and to have been arrested and failed to appear in court numerous times during that period, are strong reasons justifying the sentence imposed.

Judgment of sentence affirmed.

SPAETH, Judge, dissenting:

The judgment of sentence should be vacated and the case remanded for resentencing by another judge.

[ 260 Pa. Super. Page 89]

-1-

It is settled that the sentencing judge must state the reasons for the sentence. Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977); Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977).

Here, when imposing sentence, the judge said:

THE COURT: This is a Gagnon 2 Hearing. There is no question in the Court's mind that he is in violation of the terms and conditions of the probation imposed by Judge Levin on Bill of Indictment 549, specifically because of his refusal to report to and cooperate with the efforts of the Probation Department.

I think we have a sufficiently clear record now supported by the facts to reach that conclusion, and I find he has violated the terms and conditions of the probation imposed by Judge Levin. I will therefore revoke that probation and re-impose a prison sentence on Bill 549 of not less than two and a half nor more than five years in the State Correctional Institute.

Now, Mr. Cottle, you have certain appellate rights from the sentence that was just imposed on you, and I would like to read these . . . . [etc.].

N.T. 39.

This statement did not comply with Riggins or Kostka. To be sure, it stated a reason for revoking appellant's probation : "because of his refusal to report to and cooperate with the efforts of the Probation Department." However, that decision made, the judge next had to decide on appellant's sentence. The statement only shows ...


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