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COMMONWEALTH PENNSYLVANIA v. GEORGE K. YOUNG (11/16/79)

filed: November 16, 1979.

COMMONWEALTH OF PENNSYLVANIA,
v.
GEORGE K. YOUNG, APPELLANT



No. 826 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Centre County, Criminal Division at Nos. 1976-469, 1976-967, and 1976-968.

COUNSEL

Michael E. Bortner, Assistant Public Defender, Bellefonte, for appellant.

David E. Grine, District Attorney, Bellefonte, for Commonwealth, appellee.

Cercone, Hester and Hoffman, JJ. Cercone, President Judge, files a concurring opinion. Hester, J., files a dissenting opinion.

Author: Hoffman

[ 272 Pa. Super. Page 83]

Appellant contends that his sentence should be vacated and the case remanded because the trial court did not state its reasons for the sentence imposed on the record at the time of sentencing. We agree and, accordingly, vacate judgment of sentence and remand for resentencing at a hearing of record.

On October 6, 1976, a jury convicted appellant of aggravated assault and recklessly endangering another. On April 21, 1977, appellant pleaded guilty to charges of kidnapping, burglary, criminal conspiracy, disposition of ransom, and unauthorized use of an automobile. On June 13, 1977, the trial court sentenced appellant on these convictions to a term of imprisonment of 9 to 23 years. The court did not state on the record at time of sentencing the reasons for the sentence. Appellant filed a timely petition to vacate sentence and, on December 30, 1977, the court reduced the sentence to a term of imprisonment of 8 to 20 years. Appellant then filed this appeal. The trial court, in its opinion filed pursuant to Pa.R.App.P. 1925, stated reasons for the sentence imposed.

Appellant argues that the trial court failed to comply with the requirement of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), that the trial court state its reasons for the sentence imposed on the record at the time of

[ 272 Pa. Super. Page 84]

    sentencing.*fn* We agree. In Riggins, Justice ROBERTS, joined by Justices O'BRIEN and MANDERINO, expressly concluded that "When a trial court imposes judgment of sentence, its reasons for the imposition of sentence should appear on the record." Id., 474 Pa. at 122, 377 A.2d at 143 (plurality opinion). In his concurring opinion, Justice POMEROY endorsed this view. Id., 474 Pa. at 137, 377 A.2d at 151. Any doubt that the majority in Riggins required a statement of reasons on the record at the time of sentencing is dispelled by Pa.R.Crim.P. 1405, effective July 1, 1978, which provides that "At the time of sentencing the judge shall: . . . (b) state on the record the reasons for the sentence imposed; . . ." Rule 1405 is not merely a subsequently adopted rule whose authority resides only in its persuasive value, see In re Frank, 480 Pa. 116, 124 n.4, 389 A.2d 536, 541 n.4 (1978) (subsequent statute); rather, it incorporates the rule Riggins promulgated. See Commonwealth v. Riggins, supra, 474 Pa. at 136, 377 A.2d at 151 (requesting Criminal Procedural Rules Committee to draft rules consistent with opinion); comment to Pa.R.Crim.P. 1405. Our Supreme Court has recognized that Rule 1405 was amended to comport with Riggins. See Commonwealth v. Knight, 479 Pa. 209, 216 n.3, 387 A.2d 1297, 1300 n.4 (1978).

One compelling reason for Riggins' requirement is that without a statement of reasons at the time of sentencing, the defendant lacks an opportunity at that time to bring to the court's attention any erroneous facts or conclusions upon which it may have relied and is unable thereafter to file a petition for resentencing challenging the court's reasons for imposing sentence. See Commonwealth v. Riggins, supra,

[ 272 Pa. Super. Page 85474]

Pa. at 129 n.16, 377 A.2d at 147 n.16. Riggins also emphasized that, after sentencing, a defendant should first seek relief in the trial court, which is best able to recognize the merit of sentencing claims. Id., 474 Pa. at 136, 377 A.2d at 151. Accord, Pa.R.Crim.P. 1410 (effective July 1, 1978); see Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978) (sentencing claim not preserved for appellate review unless first presented to trial court). When the trial court does not state its reasons for the sentence imposed on the record at the time of sentencing, it denies the defendant opportunity for swift relief, ignores the direction of Riggins that the trial court consider the ...


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