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COMMONWEALTH PENNSYLVANIA v. MISAEL CRUZ (05/28/81)

SUPERIOR COURT OF PENNSYLVANIA


submitted: May 28, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
MISAEL CRUZ, APPELLANT

No. 2440 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Northampton County, No. 905 of 1980.

COUNSEL

Stanley M. Vasiliadis, Assistant Public Defender, Bethlehem, for appellant.

Donald B. Corriere, District Attorney, Easton, for Commonwealth, appellee.

Wickersham, Beck and McEwen, JJ.

Author: Beck

[ 291 Pa. Super. Page 488]

Appellant pleaded guilty, on a negotiated plea, to Aggravated Assault, 18 Pa.C.S. § 2702(a)(1). The charges arose out of an incident in which appellant entered a restaurant carrying a wooden shovel handle and struck at and hit the victim, causing him contusions on the forearm. Appellant claimed*fn1 that the victim had threatened him. He claimed, therefore, that he attacked the victim as a preemptive strike, solely out of fear of the victim and his friends.

Appellant was sentenced, on October 10, 1980, to serve a minimum of one and a maximum of three years in a state correctional institution. An Application for Reconsideration of Sentence was denied, and this appeal followed.

Appellant does not challenge the validity of his guilty plea, and appeals solely on the basis of his claim that the sentence is excessive and was not imposed in accordance with the statutory requirements. Appellant asserts that the sentencing judge failed to follow the directive of 42 Pa.C.S. § 9722 directing that weight be accorded certain factors in favor of probation.

The Sentencing Code, 42 Pa.C.S. § 9701 et seq. and Chapter 1400 of the Pennsylvania Rules of Criminal Procedure control the procedure by which sentences are imposed.

[ 291 Pa. Super. Page 489]

Within those confines, it is recognized that the sentencing judge has broad sentencing discretion. Commonwealth v. Landi, 280 Pa. Super. 134, 421 A.2d 442 (1980) and cases cited therein. If the statutory mandates enacted to assure considered and informed sentencing have been followed, this court may review the sentence only to ensure that there has not been an abuse of the wide discretion accorded the sentencing court. Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978). If the sentencing judge did not follow the Sentencing Code, then this court may not guess the result if the obligatory procedures had been followed, and must remand for resentencing. Commonwealth v. Butch, 487 Pa. 30, 307 A.2d 1302 (1979); Commonwealth v. Bryner, 285 Pa. Super. 305, 427 A.2d 236 (1981).

In the instant case, the sentencing court had before it a comprehensive pre-sentence report and was informed as to circumstances surrounding the crime, the physical and mental condition of the defendant, defendant's showing of a lack of any prior criminal record, and defendant's conduct during the pre-trial period of incarceration. Nonetheless, the only statement made by the sentencing judge as to the basis for sentence was:

"The reasons for the sentence that I have just imposed are that a lesser sentence would unduly depreciate the seriousness of the offense with which the defendant is charged. Secondly, his conduct . . . was of a threatening and violent nature directed at another person."

Under 42 Pa.C.S. § 9721(b) and Pa.R.Crim.P. 1405(b), the sentencing judge is required to "disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed." This requirement was enacted following, and in accordance with, the decisions in Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977) and Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) (plurality opinion). The sentencing judge is required to make public "the thought process by which he arrives at a particular sentence." Commonwealth v. O'Brien, 282 Pa. Super. 193, 196, 422 A.2d 894, 895 (1980). The judge's thought

[ 291 Pa. Super. Page 490]

    process should demonstrate that the court reflected upon the standards established in the Sentencing Code. His recording of this thought process acts as a safeguard against arbitrary decisions and prevents consideration of improper and irrelevant factors.

The statement by the sentencing judge in the instant case either fails to inform as to the weight accorded factors individual to the defendant as required by 42 Pa.C.S. § 9721(b) or demonstrates that the only factor given any weight by the sentencing court was the nature of the crime.*fn2 As has been repeatedly held in this Commonwealth, all of the factors set forth in the Sentencing Code must be given due consideration, and a statement of the consideration given to factors individual to the circumstances of the crime and of the defendant must be made in open court.*fn3

Sentence was not imposed upon appellant in accordance with the mandates of the Sentencing Code and of Chapter 1400 of the Pennsylvania Rules of Criminal Procedure. We therefore vacate the judgment of sentence and remand to the lower court for resentencing in accordance with the dictates of the applicable statutes, to be demonstrated by a

[ 291 Pa. Super. Page 491]

    statement in open court as to the reasons for sentence imposed.


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