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COMMONWEALTH PENNSYLVANIA v. ROBERTO AVILES (02/05/82)

SUPERIOR COURT OF PENNSYLVANIA


filed: February 5, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERTO AVILES, APPELLANT

No. 610 Philadelphia, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas of Lancaster County, Pennsylvania, Criminal Division, No. 946 1978, No. 123 of 1980 imposed February 11, 1980

COUNSEL

Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.

Michael H. Ranck, District Attorney, Lancaster, for Commonwealth, appellee.

Hester, Wieand and Shertz, JJ. Wieand, J., concurs in the result. The case was decided prior to the expiration of Shertz, J.'s commission of office.

Author: Shertz

[ 295 Pa. Super. Page 181]

This is an appeal from a Judgment of Sentence. Appellant's sole contention on appeal is that the trial court abused its discretion in imposing a prison sentence in that a supervised probationary period, which would include treatment for alcoholism, would be a more effective vehicle to rehabilitate Appellant than would total confinement. We disagree and therefore affirm.

On September 21, 1978, Appellant, Roberto Aviles, pleaded guilty to Arson.*fn1 Appellant was sentenced to pay costs and a $100 fine, to make restitution to the victim and to serve a term of imprisonment of 6 months to 23 months.*fn2 On February 22, 1979, he was granted parole effective March 1, 1979.

[ 295 Pa. Super. Page 182]

On December 26, 1979, Appellant was charged with Burglary*fn3 and Theft,*fn4 on which charges*fn5 he entered a guilty plea on February 11, 1980. Appellant's parole was revoked and he was sentenced to pay costs and to serve a term of imprisonment of 6 months on the arson conviction. He was also sentenced to serve a term of imprisonment of one and a half to three years on the burglary conviction,*fn6 the latter sentence to be served consecutively to the former. Appellant's motion to modify the sentences was denied and this appeal followed.

In order for a sentence to constitute an abuse of discretion, the sentence must either exceed statutory limits or be manifestly excessive. Commonwealth v. Campolei, 284 Pa. Super.Ct. 291, 425 A.2d 818 (1981); Commonwealth v. Jezorwski, 280 Pa. Super.Ct. 178, 421 A.2d 464 (1980). Neither criterion is here present. The prison sentences imposed did not exceed the maximum statutory limits nor are they excessive.

In imposing these relatively modest sentences, the trial court properly considered the protection of the public, the gravity and circumstances of the offenses and the rehabilitative needs of Appellant, as well as his character. Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). In its opinion*fn7 the court stated:

[ 295 Pa. Super. Page 183]

When the defendant was sentenced on the arson charge he received six to twenty-three months on a felony first-degree charge. The desire for rehabilitation was manifest in the action of the court. As a condition of parole he was required to participate in the Alcohol Impaired Driver program. Disregard for the authority of the court by failure to attend a program by which it was hoped that a problem might be helped has been established.*fn8 Commission of another first-degree felony during parole has made it requisite that imprisonment be imposed in the revocation of parole.

T.C. Slip Op. at 2, 3.

In view of the foregoing, we conclude that the lower court did not abuse its discretion.

The judgment of sentence is affirmed.


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