February 5, 1982
COMMONWEALTH OF PENNSYLVANIA
JAMES SEELEY, APPELLANT
NO. 2813 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Luzerne County, No. 1520-A of 1980.
Before McEWEN, Montemuro, and Shertz, JJ. Shertz, J. did not participate in the consideration or decision of this case.
Appellant, James Seeley, was charged with simple assault,*fn1 aggravated assault,*fn2 assault by prisoner,*fn3 and criminal attempt.*fn4 These charges were filed against appellant for his involvement in an attempted escape from Luzerne County Prison with three other inmates. In accordance with a plea bargain, appellant pled guilty to aggravated assault and testified on behalf of the Commonwealth in the prosecution against the other inmates. The Commonwealth, in return, nol prossed the criminal attempt and assault by prisoner charges and further agreed to recommend to the lower court, a concurrent sentence to the one he was then serving. On November 20, 1980, the lower court, at the sentencing proceedings, did not accept the Commonwealth's recommendation and instead, sentenced appellant to a consecutive term of one (1) to (4) years imprisonment. Subsequently, on November 28, 1980, appellant filed a petition to modify sentence. Appellant's petition was denied by the lower court without a hearing. This direct appeal followed.
The only issue raised in this appeal concerns whether the sentence imposed by the lower court is unconstitutionally excessive and in contravention of the sentencing code. For reasons set forth below, we affirm the judgment of sentence.
Appellant contends that the sentence imposed is unconstitutionally excessive in that the lower court improperly refused to accept the Commonwealth's recommendation to impose a concurrent sentence pursuant to the plea bargain. On October 15, 1980, prior to the acceptance of the plea bargain entered into between appellant's counsel and the Commonwealth, the lower court engaged in the following colloquy with appellant:
The Court: And is your plea of guilty part of an agreement that has been entered into between your lawyer and the Commonwealth that the other three charges would be dropped? One by virtue of a rule of law where the simple assault would become part of the aggravated assault, and the other two by motion of the Commonwealth to the court to drop the charge of criminal attempt to commit escape and assault by prisoner?
The Defendant: Yes.
The Court: And, was the last part of the agreement that you would testify against the other three Defendants in the case, and those Defendants are: Donald Walsh, Michael Kalson and Bernard Johnson?
The Defendant: Yes.
The Court: Did anyone promise you anything else other than what I have just explained to you?
The Defendant: No.
The Court: Anyone promise you that you'll get any particular sentence if you plead guilty?
The Defendant: No.
The Court: Does anyone--did anyone lead you to believe that any particular result would occur if you plead guilty?
The Defendant: No, Sir.
The Court: Do you understand if anyone gave any impression about what the sentence would be, or if anyone even promised you what the sentence would be, that's totally not binding on the Court. Do you understand that?
The Defendant: Yes, Sir.
In Commonwealth v. Dickerson, 449 Pa. 70, 295 A.2d 282 (1972), involving similar circumstances, it was held that:
Where the district attorney enters into and keeps a plea bargain to recommend a certain sentence to the court, and the defendant clearly understands this recommendation is not binding on the court, as this record persuasively demonstrates, the plea is not rendered invalid merely because the court rejects the district attorney's recommendation. Id at 76, 295 A.2d at 285.
In the instant case it is clear from the extensive colloquy between the lower court and appellant, that appellant fully understood that there was no guarantee he would receive a particular sentence and that the Commonwealth's recommendation would not be binding on the court. Since appellant was acutely aware of the non-binding nature of the Commonwealth's recommendation, we cannot conclude that the consecutive sentence imposed is unconstitutionally excessive because it exceeds such recommendation. The lower court was free to accept or reject the Commonwealth's recommendation and chose to reject it. Thus, the lower court did not abuse its discretion in imposing what it believed to be an appropriate sentence.
Appellant also contends that the lower court failed to communicate, on the record, sufficient reasons to justify the sentence imposed, and thus, contravened the requirements of the sentencing code.
A lower court, in deciding upon an appropriate sentence, has a broad power of discretion. Commonwealth v. Martin, 466 Pa. 118, 130 A.2d 650 (1976). The lower court's discretion, however, must be exercised "within certain procedural limits." Id. at 131, 351 A.2d at 657. "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.... At least two factors are crucial to such a determination - the particular circumstances of the offense and the character of the defendant." Id. at 131, 351 A.2d at 658; Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). And finally, the trial judge must state on the record the reasons for the sentence imposed. Id.
The following circumstances of the offense were presented to the lower court by the assistant district attorney and stipulated to by the appellant's counsel:
He [the victim] would testify that he was on duty around 12:15 a.m. on April 20th, 1980, at the Luzerne County Prison, was making his rounds, was called over to sell (sic) number four by Bernard Johnson to mail a letter. When he reached for the letter, Johnson pulled him against the bars of the sell (sic), that the other two inmates, Kalson and Walsh, also grabbed the officer and put a--and that this Defendant, Mr. Seeley, was outside the sell (sic) in the hallway and came over and grabbed the officer around the neck.
That he struggled, that he bit Mr. Seeley's finger. That Johnson and Walsh put a rope around the officer's neck. That he struggled, yelled. He threw the keys down the hallway. That Mr. Seeley went after the keys, got the keys, went to the sell (sic) door and was attempting to open the sell (sic) door with the keys when Correctional Officer Charles Conway came along and grabbed the defendant, Mr. Sheeley.
That the officer, Andrew Sarnak, was injured. He had numerous bruises, a cut around his neck. Was treated at the Wilkes-Barre General Hospital and since the date of the accident has not been able to go back to work. He's still being treated by Doctor--first he was treated by Doctor Marilyn Witherup and he's still being treated by his own family physician, Doctor William Boyle, and has received thereapy and is scheduled for an operation this coming Tuesday.
The lower court, at the time of sentencing appellant, was informed by the presentence investigation report that appellant had been previously convicted of theft, four (4) counts of criminal mischief and three (3) counts of criminal conspiracy.
The lower court set forth its reasons for the sentence imposed as follows:
1. The contents of the presentence investigation report, particularly, but not limited to the history of the criminal conduct of this Defendant.
2. There is an undue risk that during a period of probation or partial confinement, the Defendant will commit another crime.
3. The Defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution.
4. Any lesser sentence will depreciate the seriousness of this particular crime which the Defendant committed.
5. The gravity of the offense.
6. The rehabilitative needs of the Defendant.
The lower court clearly had sufficient and accurate information before it, including a presentence investigation report, which detailed appellant's prior criminal history. The court also expressly took into consideration the individual characteristics of appellant, specifically referring to appellant's past convictions and the circumstances of the particular offense involved in this case, which resulted in serious injury to the corrections officer. Further, the court did state its reasons for the sentence imposed, specifically referring to the sentencing code. We find, therefore, that the lower court did not abuse its discretion and imposed sentence within the appropriate procedural limits.
Judgment of sentence affirmed.
SHERTZ, J. did not participate in the consideration or decision of this case.