No. 15 April Term, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lawrence County at No. 953 of 1978.
Norman A. Levine, New Castle, for appellant.
Donald E. Williams, District Attorney, New Castle, for Commonwealth, appellee.
Price, Hester and Cavanaugh, JJ.
[ 276 Pa. Super. Page 555]
The appellant, age 18, pleaded guilty to aggravated assault on October 12, 1978 and on December 11, 1978, was sentenced as follows:
THE COURT: Mr. Aeschbacher, it is the sentence of this court that you pay the cost of prosecution; a fine of $1.00 and that you undergo imprisonment in Camp Hill up to a maximum of six years.
The single issue raised on this appeal by appellant is whether the sentence is manifestly excessive so as to be an abuse of discretion by the sentencing judge. Preliminarily, however, we note that the sentence provides for a maximum term only, and not a minimum. Since the sentence appears to be illegal we have examined the issue of legality of the imposed sentence sua sponte, as we are permitted to do. Com. v. Betoni, 254 Pa. Super. 26, 385 A.2d 506, 507 (1978).
We first ascertain that there is a line of cases which have held sentences similar to the one on appeal not to be in compliance with the sentencing code and have thus remanded for resentencing. In Com. v. Keller, 262 Pa. Super. 362, 396 A.2d 796 (1979), in a closely similar set of circumstances it was stated at page 796:
Robert H. Keller, age 19, entered a plea of guilty to theft, a misdemeanor of the first degree. On October 12, 1977, he was sentenced to serve a term of imprisonment not to exceed five years in the State Correctional Institution at Camp Hill. The trial court did not place on the record the reasons for this sentence. Keller appealed, alleging a manifestly excessive sentence.
The decision of this Court in Commonwealth v. Phillips, 258 Pa. Super. 109, 392 A.2d 708 (1978), is determinative. We adopt the following language from page 710 of that
[ 276 Pa. Super. Page 556]
decision because it explains precisely our remand order in the instant case. "Our Sentencing Code mandates that when imposing a sentence of total confinement 'The court shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence imposed.' The Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1356, ...