filed: January 29, 1982.
COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
No. 1925 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division at No. 79-03-1081
Maxine J. Stotland, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Leonard N. Sosnov, Assistant Public Defender, Philadelphia, for appellee.
Brosky, Cirillo and Hoffman, JJ.*fn* Hoffman, J., files a concurring opinion. Cirillo, J., joins in both opinions.
[ 295 Pa. Super. Page 278]
On February 5, 1979, appellee, Love, was charged with robbery, simple assault and terroristic threats. Love pleaded guilty to robbery and was sentenced to one to three years imprisonment. The Commonwealth brought this appeal which we allow pursuant to Section 5 of Act of November 26, 1978, P.L. 1316, No. 319, subpart (d) which is found in a note following 42 Pa.C.S.A. § 2155 (hereinafter Section 5).*fn1
[ 295 Pa. Super. Page 279]
The Commonwealth contends that the trial court is obliged to provide a statement of reasons why a sentence less than four years is imposed where, as here, the defendant, below, is a repeat offender.*fn2 Section 5, subpart (b). We remand for a statement of reasons for the sentence.
On or about February 5, 1979, Love was apprehended by police who were responding to a woman, Mabel Dorsey, who requested their assistance, as the police drove by her. Love was seized by the police who found personal papers belonging to Ms. Dorsey and two hundred dollars in his pocket. Love was subsequently charged and convicted.
The sentencing court stated in its opinion that the sentence which the appellee received was within the statutory limits proscribed for the offense of robbery. The court went on to say it made its decision in compliance with all the factors set forth in 18 Pa.C.S.A. § 1321.
Love is a repeat offender. He was convicted in the instant case of robbery and on two earlier occasions he had been convicted of robbery. Accordingly, the trial court should have followed the procedures stated in Section 5. They are:
Section 5. Pursuant to this section, there is established an interim guideline for the minimum sentencing of certain repeat offenders.
(a) Until sentencing guidelines adopted by The Pennsylvania Commission on Sentencing and relating to the offenses set out in this subsection become effective pursuant to [42 Pa.C.S.A. § 2155] (relating to publication of guidelines for sentencing), when any person is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery, aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault)
[ 295 Pa. Super. Page 280]
involving the use of a firearm, arson or kidnapping, or of attempt to commit any of these crimes, and when that person has been previously convicted in this Commonwealth, or any other state or the District of Columbia, or any Federal court, of any of the offenses set forth in this section or their equivalent, the sentencing court shall consider as a guideline in imposing sentence that such person be sentenced to a minimum term of not less than four years imprisonment.
(b) In any case where a court sentences a person subject to the provision of subsection (a), to a term of less than four years imprisonment, the court shall provide a contemporaneous written statement of the reason or reasons for the sentence.
The provisions established in subpart (b) are not discretionary. Therefore, the trial court is obliged to state its reasons for sentencing the appellee for a period of less than four years.
The trial court, on imposing judgment of sentence should place on the record its reasons for imposition of the particular sentence chosen. In stating its reasons, the trial judge should consider the character of the defendant and the particular circumstances of the crime. No mention is made of appellant's prior criminal record, his age, his personal characteristics, or his potential for rehabilitation. Moreover, by the trial court's "brevity and conclusory quality" in making a statement of its reasons for sentencing, it obviated the purpose behind Section 5(b). Cf.: Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1970); Commonwealth v. Roberts, 263 Pa. Super. 237, 397 A.2d 1187 (1978). Accordingly, we remand to the trial court for a hearing at which time the trial court will state its reasons for sentencing.
The parties are not prejudiced by our decision from bringing a new appeal within 30 days from the trial court's issuance of its statement of reasons on remand.
Accordingly, we remand for proceedings consistent with this opinion.
[ 295 Pa. Super. Page 281]
HOFFMAN, Judge, concurring:
I agree with the majority that the Commonwealth is entitled to a remand to an enunciation for the reasons for the sentence imposed upon appellee. I write separately, however, because the double jeopardy issues surrounding the prosecutorial appeal of sentences have yet to be addressed by any court in this Commonwealth. I would hold that the procedures invoked by the Commonwealth do not violate the constitutional prohibitions against double jeopardy.*fn1
This is a Commonwealth appeal from a judgment of sentence imposed upon appellee after his third conviction for robbery.*fn2 The court below sentenced appellee to serve one-to-three years in prison -- a sentence outside the applicable statutory guideline of four years imprisonment established by section 5(a) of the Act of November 26, 1978, P.L. 1316, No. 319 (hereinafter Act 319) (section 5 of Act 319 is set forth in full in a note following 42 Pa.C.S.A. § 2155). Consequently, the court below was obliged to "provide a contemporaneous
[ 295 Pa. Super. Page 282]
written statement of the reason or reasons for the sentence" it had imposed. Act 319, § 5(b). After the lower court refused to articulate its reasons for the nonconforming sentence, the Commonwealth took this appeal.*fn3
Appellee argues that this Court should not entertain this appeal because to do so would violate the double jeopardy clauses. I disagree. "The double jeopardy focus . . . is not on the [fact that the prosecution has taken an] appeal but on the relief that is requested." United States v. DiFrancesco, 449 U.S. 117, 133, 101 S.Ct. 426, 435, 66 L.Ed.2d 328, 343 (1980) (upholding federal government's appeal of sentence pursuant to 18 U.S.C.A. § 3576). See also Government of the Virgin Islands v. Josiah, 641 F.2d 1103, 1108 (3d Cir.1981).
"That guarantee [against double jeopardy] has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. (Footnotes omitted.) North Carolina v. Pearce, 395 U.S. 711, at 717, 89 S.Ct. 2072, at 2076, 23 L.Ed.2d 656[,] [at 664 (1968)].
[ 295 Pa. Super. Page 283]
United States v. DiFrancesco, supra at 129, 101 S.Ct. at 433, 66 L.Ed.2d at 340 (footnote omitted). See also Bullington v. Page 283} Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). Moreover,
"Because jeopardy attaches before the judgment becomes final, the constitutional protection also embraces the defendant's 'valued right to have his trial completed by a particular tribunal.'" Arizona v. Washington, 434 U.S. , at 503, [98 S.Ct. , at 829, 54 L.Ed.2d 717], quoting from Wade v. Hunter, 336 U.S. 684, 689[,] [69 S.Ct. 834, , 93 L.Ed. 974, [978__ (1949).
United States v. DiFrancesco, supra at 129, 101 S.Ct. at 433, 66 L.Ed.2d at 340. The relief requested by the Commonwealth in this appeal -- a remand for an articulation of the reasons for the sentence imposed, cf. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) (to facilitate meaningful appellate review of sentences, lower court should state its reasons on the record for the sentence imposed) -- does not infringe upon any of the rights protected by the double jeopardy clauses. Consequently, the majority correctly concludes, 295 Pa. Superior Ct. 278 n.1, 441 A.2d 1231 n.1, that this appeal is not violative of the double jeopardy clauses.
In United States v. DiFrancesco, supra, the United States Supreme Court resolved the question by allowing prosecutors to obtain appellate review of allegedly lenient sentences.*fn4 DiFrancesco had been sentenced as a "dangerous special offender," 18 U.S.C.A. § 3575(e), (f), following his conviction on federal racketeering charges, id. § 1962(c), (d). 449 U.S. 121, 101 S.Ct. 429, 66 L.Ed.2d 335. The government, claiming that the District Court had abused its discretion in imposing sentence, appealed DiFrancesco's sentence pursuant to 18 U.S.C.A. § 3576.*fn5 Id. at 126, 101 S.Ct. at 431,
[ 295 Pa. Super. Page 28466]
L.Ed.2d at 338. A divided panel of the Second Circuit Court of Appeals dismissed the government's appeal on double jeopardy grounds. 604 F.2d at 783. On certiorari, the Supreme Court reversed, holding that the double jeopardy clause of the Federal Constitution did not bar a prosecutorial appeal of an allegedly lenient sentence when the right to such an appeal had been afforded by statute. See 449 U.S. at 143, 101 S.Ct. at 440, 66 L.Ed.2d at 350. It would serve no useful purpose to restate Justice BLACKMUN's cogent analysis here. It should suffice, however, to note that: (1) a sentence lacks "such finality . . . as would prevent a legislative body from authorizing its appeal by the prosecution," id. at 135, 101 S.Ct. at 436, 66 L.Ed.2d at 345; (2) it also lacks "the qualities of constitutional finality that attend an acquittal," id. at 135, 101 S.Ct. at 436, 66 L.Ed.2d at 345; (3) the "double jeopardy considerations" -- unwarranted exposure of the defendant to harassment, "embarassment, expense, anxiety, and insecurity," of repeated prosecutions and the threat of being "found guilty even though innocent" -- "have no significant application to the prosecution's statutorily granted right to review a sentence," Id. at 136, 101 S.Ct. at 437, 66 L.Ed.2d at 346; and (4) because the defendant has no "right to know at any specific moment in time what the exact limit of his punishment will be" his "legitimate expectations are not defeated if his sentence is increased on appeal," id. at 136, 101 S.Ct. at 437, 66 L.Ed.2d at 346. Moreover, the prohibition against multiple punishment, see Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed.
[ 295 Pa. Super. Page 285872]
(1874), is inapplicable when the sentencing guideline is explicit and any sentence imposed thereunder is specifically subject to prosecutorial appeal. Id. at 138, 101 S.Ct. at 438, 66 L.Ed.2d at 346.
Act 319 parallels the federal statute approved in DiFrancesco. It represents our legislature's interim response to the problems confronting a trial court in sentencing repeat offenders of ostensibly violent crimes by recommending a minimum prison term of not less than four years. Act 319, § 5(a). Cf. 18 U.S.C.A. § 3575(b) (dangerous special offender "shall [be] sentence[d] . . . to imprisonment for an appropriate term not to exceed twenty-five years and not disproportionate in severity to the maximum term otherwise authorized by law for such felony"); United States v. DiFrancesco, supra at 143, 101 S.Ct. at 440, 66 L.Ed.2d at 350 (noting purpose of dangerous special offender legislation). Section 5(b) of Act 319 requires the sentencing court to articulate the reasons for any nonconforming sentence. Cf. 18 U.S.C.A. § 3575(b) ("The court shall place on the record its findings, including an identification of the information relied upon in making such findings, and its reasons for the sentence imposed."). Section 5(d) of Act 319 permits the Commonwealth to appeal discretionary aspects of a sentence imposed pursuant to the Act. See note 3, supra. Cf. 18 U.S.C.A. § 3576 ("Review of the sentence shall include review of . . . whether . . . the sentencing court's discretion was abused."). The teachings of DiFrancesco are readily applicable to Commonwealth appeals under section 5 of Act 319. Consequently, I would hold that section 5 of Act 319 does not violate the double jeopardy clause of the Federal Constitution.
Assuming, arguendo, that article I, section 10 of the Pennsylvania Constitution applies to non-capital as well as capital offenses,*fn6 I would hold also that Commonwealth appeals pursuant to section 5 of Act 319 do not violate that
[ 295 Pa. Super. Page 286]
proscription against double jeopardy. It is well settled under the Commonwealth's double jeopardy clause that:
One is placed in double jeopardy if he has received an acquittal or its equivalent, or a sentence which is no longer subject to attack. Until such legal sentence is imposed, the jeopardy in which he was placed, when first tried, must be deemed to continue until the time of imposition of legal sentence at the subsequent trial. "Until a convicted prisoner receives a sentence which can withstand attack, it may be conceived that his original jeopardy continues without interruption, and that he is therefore not put in jeopardy a second time when he receives his first valid sentence[.]"
Commonwealth ex rel. Farrow v. Martin, 387 Pa. 449, 451, 127 A.2d 660, 661 (1956) (emphasis in original and citations omitted), cert. denied, 353 U.S. 986, 77 S.Ct. 1288, 1 L.Ed.2d 1144 (1957). Accord Commonwealth v. Potter, 478 Pa. 251, 258, 386 A.2d 918, 921 (1978) (POMEROY, J., Opinion in Support of Affirmance) (equally divided Court); Commonwealth v. Baker, 413 Pa. 105, 112-13, 196 A.2d 382, 385-86 (1964); Commonwealth v. Melton, 406 Pa. 343, 347, 178 A.2d 728, 730 (1962), cert. denied, 371 U.S. 851, 83 S.Ct. 93, 9 L.Ed.2d 87 (1962); Commonwealth v. Kubacki, 208 Pa. Superior Ct. 523, 530, 224 A.2d 80, 84 (1966); Commonwealth ex rel. Walker v. Banmiller, 186 Pa. Superior Ct. 338, 340, 142 A.2d 758, 759 (1958); Commonwealth ex rel. Backus v. Cavell, 186 Pa. Superior Ct. 48, 49-50, 140 A.2d 355, 356 (1958). Cf. Commonwealth ex rel. Berry v. Tees, 177 Pa. Superior Ct. 126, 110 A.2d 794 (1955) (modification of sentence). Until the appellate processes are exhausted, a sentence imposed under section 5 of Act 319 cannot be considered
[ 295 Pa. Super. Page 287]
*fn* Judge Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania is sitting by designation.