decided: October 24, 1979.
COMMONWEALTH OF PENNSYLVANIA
PARK IRVINE BUTCH, APPELLANT
No. 190 March Term, 1978, Appeal from the Order of the Superior Court of Pennsylvania at No. 581 April Term, 1976, affirming the Judgment of Sentence dated March 5, 1976, of the Court of Common Pleas, Criminal Division, of Clarion County, Pennsylvania, at No. 32 Criminal, 1975.
Charles F. Gilchrest, Routman, Moore, Goldstone & Valentino, Sharon, for appellant.
Phillip L. Wein, Dist. Atty., Blair F. Green, Clarion, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., joined by Flaherty, J., joins the opinion of the Court and files a concurring opinion.
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OPINION OF THE COURT
Appellant Park Irvine Butch contends, and the record reveals, that his sentence of "total confinement" was imposed without due consideration for this Commonwealth's
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statutory sentencing guidelines.*fn1 We therefore vacate judgment of sentence and remand for resentencing. See Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977).
Appellant was convicted by a jury on May 29, 1975 of delivering marijuana (approximately one ounce) in violation of the Controlled Substance, Drug, Device and Cosmetic Act.*fn2 On March 5, 1976, the court sentenced him to serve a prison term of five and one-half to twenty-three months, and to pay the costs of prosecution and a fine of $350. On appeal to the Superior Court, appellant contended that the sentence had been illegally imposed. The Superior Court, however, affirmed the judgment of sentence by an equally divided court (Cercone, J., dissenting, joined by Hoffman and Spaeth, JJ.). This Court granted allocatur.*fn3 See 42 Pa.C.S.A. § 724.
In the Sentencing Code, the Legislature established standards for a court to observe when imposing sentence. Section 1322, "while not controlling the discretion of the court," lists twelve grounds which "shall be accorded weight in favor of an order of probation . . . ."*fn4 Section 1325
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directs the court to consider "the nature and circumstances of the crime and the history, character, and condition of the defendant . . ." before imposing total confinement.*fn5 We have held that a sentencing court must articulate the reasons for the sentence imposed. See Commonwealth v. Kostka, supra; Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) (plurality opinion).*fn6
Review of the sentencing record indicates that the court did not follow the provisions of section 1322 or section 1325. At the outset of the sentencing hearing, appellant's counsel introduced evidence, including recommendations of the presentencing
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report, which suggested that appellant, a college student and first time offender, would greatly benefit from a sentence of probation.*fn7 At the conclusion of defense counsel's presentation, the court responded:
"I realize from what you have indicated that Mr. Butch has taken some positive steps to help himself. However, I have a job to do, as you well know, and I have to do it in accordance with the dictates of my own conscience.
I want to apologize; I was in error when I said 11 months. Upon the set of facts, in Clarion County for one sale it is customary to have a 5 1/2 minimum."*fn8
At sentencing, the court concluded:
"The Court does not want to give the impression from his sentencing that he would be questioning the sincerity or capability of the case worker who testified here in Court. I believe his analysis may well be an accurate analysis of the progress of the Defendant in this area in attempting to free himself from any drug use. However, it is the Court's belief that a crime has been committed and the penalty must, therefore, necessarily be imposed."*fn9
From this record, it must be concluded that the court failed to consider the statutory factors set forth in the "probation" and "total confinement" sections of the Sentencing Code. Cf. Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976) (sentencing court acted improperly in automatically imposing sentence based solely on the crime). Instead, the court apparently was concerned solely with the nature of the crime. The trial court's failure to comply with the statutory sentencing guidelines requires vacation of the judgment of sentence and remand for resentencing in conformity with the Sentencing Code.
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Judgment of sentence is vacated and the case is remanded for resentencing in accordance with this opinion.
MANDERINO, Justice, concurring.
I join in the majority opinion. The trial court's failure to comply with the sentencing guidelines requires that we vacate the judgment of sentence and remand for resentencing. I note that the facts in the record before us strongly suggest that a proper consideration of the statutory sentencing guidelines could not possibly result in any confinement of appellant. See Commonwealth v. Riggins, 474 Pa. 115, 139, 377 A.2d 140, 152 (1977) (Concurring Opinion, Manderino, J.).