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COMMONWEALTH PENNSYLVANIA v. JAMES STEWARD (03/07/80)

filed: March 7, 1980.

COMMONWEALTH OF PENNSYLVANIA,
v.
JAMES STEWARD, APPELLANT



No. 540 October Term, 1977, Appeal from Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, No 454 March Term, 1975.

COUNSEL

John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, J., files a concurring and dissenting opinion in which Cercone, President Judge, joins. Hoffman, J., concurs in the result. Jacobs, former President Judge, did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 276 Pa. Super. Page 66]

On April 24, 1975, appellant James Steward pled guilty to one count of robbery in the Court of Common Pleas, Philadelphia County. Pursuant to the negotiated plea bargain, he was placed on two years probation. Subsequently, on November 24, 1976, appellant was found to have violated the conditions of probation by virtue of his conviction for robbery, theft, and other unrelated offenses. A sentence of five to ten years imprisonment was then imposed after revocation of probation. A petition to reconsider the sentence was granted and appellant was later sentenced to four to ten years imprisonment.*fn1 This appeal followed.

Appellant avers that the court erred in failing to state the reasons for the sentence imposed. A review of the record bears out appellant's contention that nowhere did the court expressly or impliedly consider the statutory guidelines for sentencing, Act of December 6, 1972, P.L. 1482, No. 334, added December 30, 1974, P.L. 1052, No. 345, or the appellant's individual characteristics and circumstances of the

[ 276 Pa. Super. Page 67]

    particular offense, Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976); Commonwealth v. Wicks, 265 Pa. Super. 305, 401 A.2d 1223 (1979); Commonwealth v. Pauze, 265 Pa. Super. 155, 401 A.2d 848 (1979); Commonwealth v. Costlow, 265 Pa. Super. 108, 401 A.2d 824 (1979); Commonwealth v. Valentin, 259 Pa. Super. 496, 393 A.2d 935 (1978). Although decided subsequent to the imposition of sentence instantly, it is clear that Riggins is fully applicable to cases pending on direct appeal at the time it was decided. Commonwealth v. Jefferson, 484 Pa. 115, 398 A.2d 971 (1979); Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977); Commonwealth v. Young, 272 Pa. Super. 82, 414 A.2d 679 (1979); Commonwealth v. Roberts, 263 Pa. Super. 237, 246 fn.6, 397 A.2d 1187, 1191 fn.6 (1978). Further, it is clear that Riggins applies where the court imposes sentence following a revocation of probation. Commonwealth v. Cottle, 260 Pa. Super. 85, 393 A.2d 1024 (1978).

Accordingly, we must vacate the judgment of sentence and remand to afford the trial court an opportunity to resentence appellant and to include a statement of reasons for the sentence imposed, in compliance with Commonwealth v. Riggins, supra.*fn2

Judgment of sentence vacated and case remanded for resentencing.

[ 276 Pa. Super. Page ...


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