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decided: May 30, 1980.


No. 256 January Term, 1978, Appeal from the Order of Superior Court filed December 2, 1977, at No. 2059 October Term, 1976, affirming the Judgment of Sentence of June 10, 1976, Court of Common Pleas, Criminal Division, Northampton County, at No. 65 August Term, 1975.


Gary Neil Asteak, Asst. Pub. Defender, Easton, for appellant.

Christopher T. Spadoni, Michael Vedomsky, Asst. Dist. Attys., Easton, for appellee.

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

Author: Roberts

[ 490 Pa. Page 18]


Following conviction by jury for burglary and theft, and denial of post-verdict motions, appellant Sidney Knighton was sentenced on June 10, 1976 to a prison term of two and one-half to five years. The Superior Court affirmed, with two judges dissenting.*fn1 On this appeal, appellant contends

[ 490 Pa. Page 19]

    that his sentence was illegally imposed in violation of Pa.R.Crim.P. 1405(a). We agree and accordingly vacate judgment of sentence and remand for resentencing.

Rule 1405 requires in relevant part:

"At the time of sentencing, the judge shall:

(a) afford the defendant the opportunity to make a statement in his own behalf . . . relative to sentencing."

This Rule's guarantee of an opportunity to address the court before sentencing has its origins in the long-established common law right of allocution. As early as 1689, a court's failure to permit a defendant to speak to the court before sentencing required reversal. See Anonymous, 3 Mod. 265, 266, 87 Eng.Rep. 175 (K.B.). At present, this right is recognized by the federal courts and at least half the states. See ABA Project On Minimum Standards For Criminal Justice, Standards Relating To: Sentencing Alternatives and Procedures § 5.4(a)(iii) and Commentary (Approved Draft, 1968); Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961); Kent v. State, 287 Md. 389, 412 A.2d 1236 (1980); Dishman v. State, 45 Md.App. 236, 413 A.2d 565 (1980). In Pennsylvania, the right of allocution, long recognized with respect to capital cases, see Commonwealth v. Gates, 429 Pa. 453, 457, 240 A.2d 815, 818 (1968) (citing cases), was extended by the Rules in 1973 to all criminal defendants.

The right of allocution has retained its vitality in contemporary sentencing schema. Notwithstanding the modern innovations in our law, nothing has "lessen[ed] . . . the need for the defendant, personally, to have the opportunity to present to the court his plea in mitigation. The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself." Green v. United States, supra, 365 U.S. at 304, 81 S.Ct. at 655. Allowing a defendant to address the court on the sentencing determination fully comports with this Commonwealth's Sentencing Code, 18 Pa.C.S. §§ 1301 et seq., which embodies "the philosophy of individual sentencing,"

[ 490 Pa. Page 20]

    doing it otherwise, because of my prejudice in this thing, I might sentence more -- seriously, I think I would give you the maximum, whatever it was. Invading a citizen's household with that kind of talk --

THE DEFENDANT: May I say something?

THE COURT: No. I do not want to hear what you have to say. I will hear from counsel."*fn4

Immediately before imposing sentence, the sentencing judge again explained how appellant's sentence had been determined:

"THE COURT: . . . Well, anyhow, I have been completely guided by the sentencing council and I did not enter into it and I am following what they have come up with and not what I would come up with."*fn5

It is manifest that the sentencing judge deliberately excluded himself from the determination of appellant's sentence because of his strong personal prejudice against appellant, and instead imposed sentence, or more accurately announced sentence, on the basis of a "sentencing council's" determination reached prior to the sentencing hearing.*fn6 Though the sentencing judge eventually afforded appellant the opportunity to speak to the court before actually announcing sentence, the gesture was an empty one for the sentence had been already determined. Appellant's address to the court was clearly not heard by those who actually determined sentence. Appellant was therefore in reality denied his right of allocution under Rule 1405.

The sentencing decision is of paramount importance in our criminal justice system. At sentencing the court seeks to vindicate society's interest in imposing appropriate sanctions against those individuals determined to be criminally

[ 490 Pa. Page 22]

    culpable. At the same time, however, the court must give fair and full consideration to the particular circumstances of individual defendants. The ABA Project on Sentencing Alternatives and Procedures, supra, recognizes the fundamental significance of the sentence determination:

"The consequences of a sentence are of the highest order. If too short or of the wrong type, it can deprive the law of its effectiveness and result in the premature release of a dangerous criminal. If too severe or improperly conceived, it can reinforce the criminal tendencies of the defendant and lead to a new offense by one who otherwise might not have offended so seriously again.

The decision which is presented at sentencing is also enormously complex. It properly is concerned, and often predominately, with the future which can be predicted for the particular offender. But any single-valued approach to sentencing is misdirected. A sentence which is not in some fashion limited in accordance with the particular offense can lead to a system of incomparable brutality. Per contra, a sentence or pattern of sentences which fails to take due account of the gravity of the offense can seriously undermine respect for law."

Id. at 1. A sentencing court's adherence to proper sentencing procedure provides the greatest assurance that the interests of all concerned will be protected. See e. g. Commonwealth v. Butch, 487 Pa. 30, 407 A.2d 1302 (1979); Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977); Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) (plurality opinion); Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976).

Fully recognizing the gravity of the sentencing decision, the Sentencing Code and the Rules of Criminal Procedure clearly contemplate that the "sentencing judge" be the ultimate adjudicator of criminal sentences. See Pa.R.Crim.P. 1401 ("Sentencing Judge"), 1403 ("Aids in Imposing Sentence"), 1404 ("Disclosure of Reports"); 18 Pa.C.S. § 1321 ("Sentencing generally"); Commonwealth v. Kostka, supra (sentencing judge must articulate reasons for sentence

[ 490 Pa. Page 23]

    he imposed upon defendant). There are no provisions allowing a sentencing judge to delegate the determination to any person or group as happened here.*fn7 A sentencing judge who believes, as the judge here believed, that he cannot fairly and impartially impose sentence, should recuse himself from the case. See Code of Judicial Conduct Canon 3 C(1)(a) ("Disqualification");*fn8 ABA Project on Standards for Criminal Justice, Standards Relating To: The Function of the Trial Judge §§ 1.5 ("Duty to maintain impartiality") and 1.7 ("Circumstances requiring recusation") (Approved Draft, 1972).*fn9

The sentencing judge here sought to compensate for his admitted prejudice by excluding himself entirely from the sentencing determination in favor of a "sentencing council." Such a method clearly violated this Commonwealth's

[ 490 Pa. Page 24]

    sentencing procedures, and deprived appellant of his right of allocution.

Judgment of sentence is vacated and the case is remanded for resentencing by another judge consistent with this opinion.

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