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COMMONWEALTH PENNSYLVANIA v. JOSEPH KEMPKA (03/23/79)

submitted: March 23, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH KEMPKA, APPELLANT



No. 2348 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Monroe County, Pennsylvania, Criminal Division, at No. 317 of 1978

COUNSEL

James P. Gregor, Assistant Public Defender, Stroudsburg, for appellant.

Ralph A. Matergia, Assistant District Attorney, Stroudsburg, for Commonwealth/appellee.

Cercone, President Judge, and Watkins and Hoffman, JJ.

Author: Cercone

[ 272 Pa. Super. Page 336]

The sole issue raised in the instant appeal is whether the minimum sentencing procedure established by 19 P.S. § 1057

[ 272 Pa. Super. Page 337]

(1964), and retained in pertinent part by the Sentencing Code, 18 Pa.C.S. § 1356(b) (Supp.1978), is unconstitutional. The gist of appellant's argument is that minimum sentencing procedure constitutes a denial of due process because it vests too great a power in the sentencing judge to predetermine what length of incarceration will be minimally sufficient to meet the rehabilitative needs of a person convicted of a crime. Appellant contends that tying the hands of parole and probation officials, who will subsequently be in a better position than the sentencing judge to determine the need for further incarceration of a particular convict, by not permitting them to grant parole or probation prior to the run-date of the minimum sentence, is arbitrary and capricious.

Appellant derives support for this proposition essentially from two sources: He refers us to the ABA Project, Standards Relating to Sentencing Alternatives and Procedures § 3.2 (Approved Draft 1967).*fn* And, appellant refers us to

[ 272 Pa. Super. Page 338]

    cases such as United States v. Miller, 361 F.Supp. 825 (D.C.1973), wherein judges have plaintively noted that professional parole and probation officers are better trained than they to determine if and when the rehabilitative function of incarceration has served its purpose in the individual case. Nevertheless, for numerous reasons we disagree with appellant's argument that judicially fixed minimum sentences are unconstitutional, the most salient of which follow.

First, even the ABA Project upon which appellant heavily relies does not entirely condemn minimum sentencing practices; it merely recommends that minimum sentences, when imposed should not exceed one-third of the maximum sentence. ABA Project § 3.2(c)(iii). Furthermore, the Model Penal Code recommends the use of minimum sentences. See Model Penal Code § 6.01 et seq. (P.O.D. 1962). Consequently, the legislature's grant of authority to the courts ...


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