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COMMONWEALTH PENNSYLVANIA v. JEFFREY R. ROONEY (03/05/82)

SUPERIOR COURT OF PENNSYLVANIA


filed: March 5, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
JEFFREY R. ROONEY, APPELLANT

No. 1988 October Term, 1978, Appeal from Order entered June 9, 1978 of the Court of Common Pleas, Criminal Division of Lackawanna County to No. 1302 A to I of 1977.

COUNSEL

Robert T. Gownley, Jr., Assistant Public Defender, Lackawanna, for appellant.

Ernest D. Preate, Jr., District Attorney, Scranton, for Commonwealth, appellee.

Spaeth, Stranahan and Sugerman, JJ.*fn* Spaeth, J., files a dissenting opinion.

Author: Sugerman

[ 296 Pa. Super. Page 290]

Appellant has appealed an order of the lower court denying his motion for reconsideration of sentence. Appellant contends on appeal, as he did below in support of his motion, that the sentence imposed upon him was manifestly excessive and thus constituted an abuse of the lower court's discretion. We affirm.

On May 10, 1977, Appellant, then a juvenile seventeen years of age, was arrested and charged in a series of juvenile petitions with two counts of robbery, five counts of burglary and two counts of criminal attempt. On May 21, 1977, following a certification hearing, Appellant's cases were transferred by the juvenile court to the criminal division for trial. Appellant was thereafter indicted on all charges by a grand jury and the cases were listed for trial.

[ 296 Pa. Super. Page 291]

On January 26, 1978, Appellant pleaded guilty to the indictments and on May 12, 1978, following the preparation of a Presentence Investigation Report, Appellant was sentenced to serve a term of imprisonment of six months to one year upon each of the five counts of burglary and one to two years upon each of the two counts of robbery. All sentences were ordered by the court to be served consecutively, resulting in a total period of confinement of 4 1/2 to 9 years.

The record of the guilty plea proceeding indicates that Appellant, while engaged in what is best characterized as a "crime spree", was an active participant in a series of burglaries and robberies committed in Lackawanna County during a five-day period. In the first of these incidents, Appellant and a co-defendant twice burglarized a used car lot on the same day, and removed an automobile and other property following each entry. Again, on the same day, Appellant and his co-defendant committed an armed robbery at a service station. During the course of the robbery, Appellant held a rifle or sawed-off shotgun to an attendant's head while removing approximately $350 from the station. Yet again on the same day, Appellant burglarized a drive-in restaurant, and his co-defendant removed property valued at more than $250. On the following day, Appellant and others burglarized an automobile dealership and stole another automobile along with cash and other property. Again, on the same day, Appellant and a co-defendant attempted to rob another service station. Appellant was armed with a 12-gauge shotgun and wore a disguise. The service station attendant refused to comply with a demand for money, causing Appellant to apparently "freeze", and both thereupon fled.

During the same period, the record reveals that Appellant attempted to burglarize a drug store, burglarized a mobile home, causing extensive damage, and stole another automobile. Appellant's activity during this "spree" resulted in the return of nine separate indictments, containing sixteen counts and charging Appellant, inter alia, with the theft of many thousands of dollars in movable property.

[ 296 Pa. Super. Page 292]

As we have observed, Appellant was sentenced to a total period of confinement of 4 1/2 to 9 years upon his pleas to five counts of burglary, two counts of robbery and one count of attempted burglary. The remaining counts that did not merge were the subject of a nolle prosequi.

Our scope of review when confronted by a challenge to the severity of a sentence is well known and has been oft-repeated. Where no statutorily mandated sentence is implicated, trial judges in this Commonwealth are vested with broad discretion in sentencing. We will not disturb a judgment of sentence unless an abuse of discretion is shown, and in order to constitute an abuse of discretion, a sentence must either exceed the statutory limits or be manifestly excessive. Commonwealth v. Cottle, 493 Pa. 377, 426 A.2d 598 (1981); Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1971); Commonwealth v. Campolei, 284 Pa. Super. 291, 425 A.2d 818 (1981); Commonwealth v. Michenfelder, 268 Pa. Super. 424, 408 A.2d 860 (1979). In addition, at the date the instant sentences were imposed, the court was required by the Sentencing Code to impose a sentence 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," 18 Pa.C.S.A. § 1321(b);*fn1 Commonwealth v. Campolei, supra, 284 Pa. Super. at 297, 425 A.2d at 822. The sentencing court must also state on the record the reasons underlying the sentence it imposes,*fn2 Commonwealth v. Riggins, 474 Pa. 115, 133, 377

[ 296 Pa. Super. Page 293]

A.2d 140, 149 (1977); Commonwealth v. Weaver, 280 Pa. Super. 481, 421 A.2d 824 (1980);*fn3 Commonwealth v. Turecki, 278 Pa. Super. 511, 420 A.2d 658 (1980). The sentencing court must also indicate on the record at the time of sentencing that the guidelines of the Sentencing Code were considered in the sentencing process.*fn4 Commonwealth v. Butch, 487 Pa. 30, 407 A.2d 1302 (1979); Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977); Commonwealth v. Stufflet, 291 Pa. Super. 516, 436 A.2d 235 (1981); Commonwealth v. Williams, 274 Pa. Super. 461, 418 A.2d 499 (1980); Commonwealth v. Skinner, 275 Pa. Super. 251, 418 A.2d 707 (1980).

[ 296 Pa. Super. Page 294]

Appellant does not and indeed could not argue that the sentence imposed upon him exceeded the statutory limits. See, 18 Pa.C.S.A. §§ 3502, 3701, 901(a), 905 and 1103. We must therefore determine whether the sentences imposed are for some other reason manifestly excessive. Commonwealth Page 294} v. Campolei, supra, 284 Pa. Super. at 297, 425 A.2d at 822.

Prior to sentencing, the lower court directed that a Presentence Investigation Report be prepared. At the sentencing proceeding, Appellant's counsel referred to the Report and addressed a number of mitigating factors contained in it, including Appellant's admission of his complicity in the crimes, his ultimate cooperation with the police, and his exemplary record while incarcerated.

Counsel also invited the court's attention to a number of Appellant's personal attributes, and certain aspects of Appellant's participation in the crimes which were mitigating in counsel's view. Nearly all such factors directly implicated the guidelines of the Sentencing Code and were clearly before the Court.

Prior to imposing the instant sentences, the court set forth its reasons on the record thusly:

"THE COURT:

I have examined the defendant's presentence investigation n[5] very, very carefully taking into account all of the facts contained therein and, of course, in light of the seriousness of the crimes involved here, these crimes, of course, are perhaps the most serious we have on the books today. I've also taken into consideration in addition to the seriousness of these incidents, the well being of the people and the protection of the people in Lackawanna County because we certainly have to have that in mind in all of these types of proceedings, the protection of our people. Of course, you have evidenced by these incidents a great disregard for life and property. I've taken this into consideration. It was very evidence in these incidents which include two robberies and five burglaries your criminal disposition. In addition to these, the criminal disposition you have throughout your life which is evidenced by your juvenile court record. As a result of the concern that the court has for you and the possibility of

[ 296 Pa. Super. Page 295]

    rehabilitation programs, taking all of these matters into consideration and based upon . . . [sentences were thereupon imposed]."

At the hearing convened upon Appellant's Motion for Reconsideration of Sentence, the court amplified its earlier remarks:

"THE COURT: I might add just paraphrasing, there were other matters I took into consideration in addition to what you mentioned, Mr. Gownley [defense counsel]. The first of which was that I gave very careful consideration to the pre-sentence investigation. Secondly, I took into consideration his criminal disposition involved in these acts. I took into consideration his criminal disposition throughout his life as was evidenced by his juvenile court record. I also mentioned in that proceeding [sentencing proceeding] that I was concerned about the possibility of rehabilitation programs." N.T. 4-5, June 9, 1978.

It is not our function to determine whether we agree with these statements of the sentencing court, "in the sense that if we had been the sentencing court, we should have said the same thing and imposed the same sentence." Commonwealth v. Campolei, supra, 284 Pa. Super. at 299, 425 A.2d at 822. Rather, we must evaluate three factors: whether the confinement imposed on Appellant is consistent with the protection of the public, the gravity of the offenses, and the rehabilitative needs of Appellant. Id. And see, Commonwealth v. Edrington, 490 Pa. 251, 256, 416 A.2d 455, 457 (1980); Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978); Commonwealth v. Martin, 466 Pa. 118, 133, 351 A.2d 650, 658 (1976).

At bar, it is apparent that the sentencing judge placed great emphasis upon the Presentence Investigation Report. Appellant's counsel advised the court that he and his client had reviewed the report. During argument, Appellant's counsel discussed the report and informed the court of Appellant's prior juvenile offenses, including an escape from a juvenile detention facility, all of which were contained

[ 296 Pa. Super. Page 296]

    in the report. There is no indication in the record that the report was in any respect inaccurate.

The court itself, in its brief statement at the time of sentencing quoted above, reflects a consideration of the gravity of Appellant's offenses, Appellant's prior contact with the juvenile justice system, and the facts concerning Appellant's individual characteristics and background as set forth in the Presentence Investigation Report. The court's statement also exhibits its concern for Appellant's rehabilitative requirements.

While we should perhaps have taken greater comfort in a more detailed statement of reasons underlying the sentences imposed,*fn6 including those aspects of the Presentence Investigation Report upon which the court relied,*fn7 we cannot say that the court failed in its obligation to consider the factors iterated in Campolei, supra, or the Sentencing Guidelines, 18 Pa.C.S.A. § 1301 et seq. Rather, it appears to us that the sentencing court considered and applied the guidelines of the Code and we are thus unable to say on this record that the court manifestly abused its discretion.*fn8

Affirmed.

SPAETH, Judge, dissenting:

I find myself unable to agree with the majority that the lower court has adequately stated its reasons for the sentence

[ 296 Pa. Super. Page 297]

    imposed. I should therefore vacate the sentence and remand for resentencing.

I acknowledge the majority's full and careful statement of the cases defining the sentencing judge's responsibilities. On another occasion I tried to summarize those responsibilities, and it may be useful to refer to that summary now:

The first responsibility of the sentencing judge is a fact-finding responsibility; the judge must be sure that he has before him "sufficient information to enable him to make a determination of the circumstances of the offense and the character of the defendant." Commonwealth v. Doyle, 275 Pa. Superior Ct. 373, 281, 418 A.2d 1336, 1340 (1979) citing Commonwealth v. Wicks [265 Pa. Superior Ct. 305, 401 A.2d 1223 (1979)]. The second responsibility of the sentencing judge is an application-and-explanation responsibility; the judge must apply to the information he has gathered the statutory guidelines specified in the Sentencing Code, Act of Dec. 30, 1974, P.L. 1052, No. 345, § 1, 18 Pa.C.S. § 1321 et seq. (Supp.1977), and then explain on the record how that application has resulted in the sentence imposed. Commonwealth v. Doyle, supra, 275 Pa. Super. at 383, 418 A.2d at 1341. See Commonwealth v. Farrar, 271 Pa. Superior Co. 434, 447-453, 413 A.2d 1094, 1101-1104.

Commonwealth v. Kostka, 276 Pa. Superior Co. 494, 419 A.2d 566, 573-574 (1980) (SPAETH, J., concurring).

Here, we cannot tell whether the sentencing judge fulfilled his fact-finding responsibility. While the judge says that he "examined the defendant's presentence investigation very, very carefully taking into account all the facts contained therein . . . .," At 776, he does not tell us what those facts were. Nor did he make the report of the presentence investigation part of the record. We therefore cannot know whether the judge had before him "sufficient information to enable him to make a determination . . . of the character of the defendant."

Also, the sentencing judge failed to fulfill his application-and-explanation responsibility. His very brief statement

[ 296 Pa. Super. Page 298]

    makes at best only an oblique reference to the guidelines specified in the Sentencing Code, and there is no explanation of why the judge believed his sentence consistent with those guidelines. The statement is only a series of conclusions, with no specificity or concreteness being added by any reference to the record. Indeed, the statement raises more questions than it resolves. What did the judge mean by his reference to "the criminal disposition you have throughout your life?" What was "evidenced by [the] juvenile court record?" What was "the possibility of rehabilitation programs?"

At the sentencing proceeding, counsel for appellant offered several arguments in mitigation of appellant's offenses; counsel argued to the following effect. Appellant was 17 years old when the offenses were committed. He was not the only person involved; others were with him, and one of them was an adult who had fled the jurisdiction. In some of the cases, appellant did not break in but acted as a lookout. In one case, he took a gun away from one of the others, saying, "I can't do this." He gave detailed statements to the police and juvenile authorities, freely admitting his involvement, and pleaded guilty to all of the offenses. He further demonstrated his change in attitude when he was in jail, awaiting trial. He had risen to the position of trustee and was permitted to leave his wing to work as a cook in the kitchen, where he had access to knives. According to counsel, the pre-sentence report showed that appellant's juvenile offenses had not been "in the same vein" as the offenses to which he had pleaded guilty, and appellant "was never involved with guns before." N.T. 4.

It was the sentencing judge's responsibility to respond to this argument. The essence of the Pennsylvania law of sentencing is that the sentence be individualized. Commonwealth v. Riggins, supra. The point of requiring a statement of reasons for the sentence is to ensure that it is an individualized sentence, consistent with the Sentencing Code. Id. Here, the sentencing judge's statement amounts only to a few brief, conclusory remarks, which could have

[ 296 Pa. Super. Page 299]

    been uttered in virtually any robbery case. In Commonwealth v. Farrar, 271 Pa. Superior Ct. 434, 413 A.2d 1094, we said:

[T]he responsibilities [the Sentencing Code] imposes on the sentencing judge do not fade away and disappear upon utterance of the formula that 'a lesser sentence would depreciate the seriousness of the crime.' The judge must state, with reference to the record, why he believes that would be so. Only thus will the 'appellate courts [be enabled] to ascertain whether the sentence was based upon accurate, sufficient and proper information [ citing Commonwealth v. Riggins, supra.]


*fn* Pres. Judge John Q. Stranahan, of the Court of Common Pleas of Mercer County, Pennsylvania, is sitting by designation.

Judge Leonard Sugerman, of the Court of Common Pleas of Chester County, Pennsylvania, is sitting by designation.


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