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COMMONWEALTH PENNSYLVANIA v. DONALD W. GREEN (07/02/81)

decided: July 2, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
DONALD W. GREEN, APPELLANT



No. 81-1-97, Appeal from the Judgment of Sentence of the Court of Common Pleas of Mercer County, dated October 10, 1978, at No. 221 Criminal 1977, Criminal Division.

COUNSEL

David J. Graban, Sharon, for appellant.

Charles S. Hersh, Asst. Dist. Atty., Mercer, for appellee.

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

Author: Roberts

[ 494 Pa. Page 408]

OPINION OF THE COURT

This is an appeal from a judgment of sentence of ten to twenty years' imprisonment following a plea of guilty to murder of the third degree. The sentence was entered on October 10, 1978, after an order of this Court dated September 22, 1978, which vacated a previously-entered judgment of sentence of the same term and remanded the record for proceedings consistent with Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). Appellant contends that on resentencing the court abused its discretion. We affirm.

Sentence here was imposed well after July 1, 1978, the effective date of Pa.R.Crim.Proc. 1410. Rule 1410 requires a defendant seeking relief from a judgment of sentence to file a written motion for modification within ten days of the entry of sentence. The record fails to disclose compliance with Rule 1410.

Generally, appellate review of the sentence would be foreclosed. See, e. g., Commonwealth v. Stetler, 494 Pa. 551, 431 A.2d 992 (1981); Commonwealth v. Ruschel, 280 Pa. Super. 187, 421 A.2d 468 (1980). However, appellant has filed a pro se brief in this Court pointing out the present procedural defect and alleging that counsel was ineffective for failing to preserve the sentencing issue. Considerations of judicial economy compel us to address appellant's contention.*fn1

[ 494 Pa. Page 409]

The court's sentence of ten to twenty years' imprisonment is within the legislatively-defined range of permissible sentences for a conviction of murder of the third degree. See 18 Pa.C.S. § 1103(1). Compare Commonwealth v. Hertzog, 492 Pa. 632, 425 A.2d 329 (1981). The court's on-the-record statement of reasons for the sentence imposed, required under Pa.R.Crim.Proc. 1405(b) and Commonwealth v. Riggins, supra, reflects consideration both of the circumstances of the offense and of the character of the defendant. See Commonwealth v. Martin, 466 Pa. 118, 133, 351 A.2d 650, 658 (1976).*fn2 The court's reasons also reflect "due consideration" of Pennsylvania's statutory sentencing guidelines, 42 Pa.C.S.A. § 9721 et seq. (formerly 18 Pa.C.S. § 1321 et seq.), including those relating to total confinement. Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977); Commonwealth v. Cottle, 493 Pa. 377, 426 A.2d 598 (1981).

In the face of the court's compliance with the above requirements, appellant contends that only "token reference" was made to aspects of his character. While our cases hold that the sentencing court must consider the ...


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