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filed: April 24, 1981.


No. 885, October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Potter County, Criminal, Pennsylvania at No. 113 of 1978


Daniel R. Milliard, Coudersport, for appellant.

Thur W. Young, District Attorney, Coudersport, for Commonwealth, appellee.

Wickersham, Brosky and Roberts, JJ.*fn* Brosky, J., files a concurring opinion.

Author: Wickersham

[ 286 Pa. Super. Page 429]

William Ladd Batterson, appellant was charged with operating a motor vehicle under the influence of alcohol arising out of an incident occurring on August 2, 1978 in Coudersport Borough, Potter County, Pennsylvania.*fn1

[ 286 Pa. Super. Page 430]

On January 15, 1979 a jury returned a guilty verdict and on April 3, 1979, Honorable Harold B. Fink, President Judge, sentenced the defendant-appellant to imprisonment in the Potter County jail for a period of not less than fifteen days nor more than thirty days and a fine.*fn2 An appeal was taken

[ 286 Pa. Super. Page 431]

    to our court and we will consider the first*fn3 statement of questions involved as follows:

Is a judge in error when he refuses to disqualify himself after having presentenced all individuals who are found guilty of the crime of Driving While Intoxicated to a jail sentence and a fine?

Appellant's concern deals with an article*fn4 appearing in The Potter Enterprise Wednesday, August 30, 1978, entitled

[ 286 Pa. Super. Page 432]

"Drunk Driver Crackdown" in which President Judge Fink was quoted as saying that:

"Let it be known," President Judge Harold B. Fink told the Enterprise, "that I intend to order an automatic jail

[ 286 Pa. Super. Page 433]

    term for any accident in which it is proven that a driver was under the influence -- and I don't care who he is."

Appellant argues in his brief that the trial judge, in effect, presentenced him "without any presentence investigation or consideration of mitigating circumstances." He points to Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976) as support for his position.

In Martin, appellants contended that their sentences were imposed in accordance with a policy agreed to in advance by the three judges of the Lancaster County Court "without reference to either appellant's" individual characteristics or to the circumstances of the particular offenses. Specifically each of the six appellants, guilty of selling heroin, had been sentenced to three to ten years imprisonment plus a fine, the

[ 286 Pa. Super. Page 434]

    sentence to be consecutive where more than one sale was involved. As Justice Roberts pointed out:

In no case was a pre-sentence report ordered. No meaningful inquiry was made into the appellants' backgrounds, individual characteristics, relative culpability or prospects for rehabilitation, despite clear evidence that the appellants' offenses were committed in varying circumstances. In short, all appellants' sentences were based on an abstract predetermination of the sentence to be imposed for the particular offense, without regard to the individual circumstances of particular cases.

Commonwealth v. Martin, supra, 466 Pa. at 126-128, 351 A.2d at 654-655. Justice Roberts continued his discussion by stating:

The sentence must be imposed for the minimum amount of confinement that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. See 18 Pa.C.S. ยง 1321(b) (Supp.1975). At least two factors are crucial to such determination -- the particular circumstances of the offense and the character of the defendant.

Id., 466 Pa. at 133, 351 A.2d 658 (footnote omitted).

Instantly, the case sub judice is not controlled by Martin. Further, from the sentencing record we see that the court considered all of the factors deemed important by the supreme court in Martin ; i. e., the nature of the incident, the defendant's background and all other pertinent circumstances. The sentence was modest, just and fair.

Judgment of sentence affirmed.

BROSKY, Judge, concurring:

[ 286 Pa. Super. Page 435]

While I agree with the majority that the trial court acted within the procedures and guidelines set out in Commonwealth Page 435} v. Martin, 466 Pa. 118, 351 A.2d 650 (1976), and Pa.R.Cr.P. 1403(A)(2)(a) and (c), I do not believe that we should in any way endorse the actions of trial judges who make public declarations that they will automatically sentence persons guilty of a similar offense in a certain, consistent fashion. Clearly, a judge can reach the same end without expressing his views, and we have no way of reviewing such a decision. To publicly declare a policy such as that found in the instant case forces the judge to be or at the very least creates an appearance that the judge will be inflexible in sentencing and that he will not sentence in an individualized manner.

I have no quarrel with the majority's position -- the trial judge stated why he ordered no presentence report, Pa.R.Cr.P. 1403(A)(2)(a) and (c), and he placed in the record his review of the appellant's character and the circumstances of the crime to justify the sentence. Commonwealth v. Martin, supra. However, my view is that the sentencing of convicted persons requires an open, unprejudiced, not predetermined view by the trial judge of each individual defendant.

Certainly, we cannot delve into the thoughts of each trial judge. However, I would admonish all trial judges to refrain from engaging in public declarations proclaiming their blanket views of how persons who share only a conviction for the same crime, and no more, should be sentenced in a particular manner. Should a judge not consider the individual characteristics and circumstances of an individual defendant then that judge violates the law. No judge should attempt to circumvent the law by mechanically stating the factors set forth in Commonwealth v. Martin, supra., while ignoring or creating the appearance of ignoring their importance.

*fn* Justice SAMUEL J. ROBERTS of the Supreme Court of Pennsylvania is sitting by designation.

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