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COMMONWEALTH PENNSYLVANIA v. JOANNE MITCHELL (02/01/80)

SUPREME COURT OF PENNSYLVANIA


decided: February 1, 1980.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
JOANNE MITCHELL, APPELLANT

No. 11 January Term 1978 Appeal from the Order of the Superior Court of Pennsylvania, Philadelphia, at No. 1748 October Term 1976, affirming the Judgment of Sentence of the Court of Common Pleas of Berks County, Criminal Division, at No. 76025601-0.

COUNSEL

Richard N. Beltzner, Asst. Public Defender, for appellant.

Charles M. Guthrie, Jr., Asst. Dist. Atty., for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ.

Author: Eagen

[ 487 Pa. Page 570]

OPINION OF THE COURT

Joanne Mitchell was convicted by a jury in Berks County of retail theft, criminal conspiracy, and receiving stolen goods. She was sentenced on April 22, 1976, to the State Correctional Facility at Muncy for a term of one and onehalf to five years.*fn1 An appeal from the judgment of sentence was filed in the Superior Court which affirmed by a per curiam order and without opinion. We granted allocatur.

[ 487 Pa. Page 571]

Mitchell urges the trial court abused its discretion in imposing sentence without taking into consideration certain mitigating circumstances, and erred in not placing on the record the reasons for imposing what is said to be a severe sentence.

The record reveals that Mitchell had no prior criminal record, was the mother of two very young children, and was attending school at the time. In passing sentence, the sentencing judge stated he had "carefully considered all the matters involved and [had] examined the pre-sentence reports and we will follow the recommendations of the probation office." "The matters involved" were not spelled out and the pre-sentence reports were not made part of the record. The record also fails to disclose "the recommendations of the probation office." The trial court did not give any reasons for the sentence in its memorandum opinion filed after this appeal.

In Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), we vacated the sentence and remanded for resentencing where the trial court imposed sentence without stating its reasons. The Commonwealth contends that Mitchell's sentence was imposed months before our opinion in Commonwealth v. Riggins, supra, was filed and, hence, that the holding in Riggins is of no moment here. We disagree.

In Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977), which was pending on direct appeal on the date our decision in Riggins was filed, we applied our ruling in Riggins and remanded the case for resentencing in light of Riggins. We are faced with the identical situation here. The present appeal (a direct appeal from the judgment of sentence) was still in the process of litigation when Riggins was decided. Fairness demands that Mitchell be accorded the same consideration given Kostka.

The order of the Superior Court and the judgment of sentence imposed in the trial court are vacated, and the record is remanded to the trial court for the purpose of resentencing.


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