No. 2961 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Centre County, No. 1980-541, 1981-113
Daniel McGee, Public Defender, Bellefonte, for appellant.
David Edward Grine, District Attorney, Bellefonte, for Commonwealth, appellee.
Brosky, Wieand and Beck, JJ.
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The appellant, Richard Burtner, entered pleas of guilty to informations charging him with unauthorized use of an automobile*fn1 and five counts of burglary.*fn2 He was sentenced to an aggregate term of two and one-half (2 1/2) to five (5) years imprisonment. On direct appeal, he contends that the lower court abused its discretion by imposing a
[ 307 Pa. Super. Page 233]
manifestly excessive sentence and by refusing to consider, during proceedings on a motion to modify the sentence, evidence which he wished to offer regarding deficiencies in the drug and alcohol program of the State Correctional Institution at Camp Hill. Finding appellant's arguments to be meritless, we affirm the judgment of sentence.
At sentencing on October 5, 1981, appellant requested a continuance to obtain additional evidence pertaining to the Daytop Village Drug Treatment Center as a sentencing alternative to total confinement. This request was granted, and the sentencing hearing was resumed on October 26, 1981. At that time, the court considered appellant's evidence regarding the programs offered at Daytop Village and Gaudenzia House. It also considered a presentence investigation and particularly appellant's drug and alcohol problems, prior convictions, and his unsatisfactory prior attempts to achieve rehabilitation. The sentencing judge entered on the record a lengthy and thoughtful statement of the factors considered in formulating the sentence and then imposed a sentence of not less than one (1) nor more than two (2) years imprisonment on the conviction for unauthorized use of an automobile and a consecutive sentence for not less than one and one-half (1 1/2) nor more than three (3) years on the burglary convictions, with credit to be given for time served. Appellant was also sentenced to make restitution to the burglary victims and to pay the costs of prosecution.
On November 5, 1981, appellant filed a petition for reconsideration of the sentence. A hearing thereon was held on November 16, 1981. At that time, appellant attempted to present evidence regarding inadequacies in and unavailability of the drug and alcohol treatment program at Camp Hill, the facility at which he was then incarcerated. The court refused to receive such evidence but allowed appellant to make an offer of proof regarding the treatment program at Camp Hill. The court then explained again, in depth and on the record, the reasons for the sentence of imprisonment and
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the considerations militating against placing appellant in the Gaudenzia House program.
"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." Commonwealth v. Rooney, 296 Pa. Super. 288, 292, 442 A.2d 773, 774 (1982). Accord: Commonwealth v. Mead, 300 Pa. Super. 510, 512-513, 446 A.2d 971, 972-973 (1982); Commonwealth v. Hollerbush, 298 Pa. Super. 397, 400, 444 A.2d 1235, 1240 (1982); Commonwealth v. Corson, 298 Pa. Super. 51, 54, 444 A.2d 170, 172 (1982); Commonwealth v. Campolei, 284 Pa. Super. 291, 297, 425 A.2d 818, 821 (1981); Commonwealth v. Michenfelder, 268 Pa. Super. 424, 427, 408 A.2d 860, 862 (1979). "[I]n exercising its discretion the sentencing court must not overlook pertinent facts, disregard the force of evidence or commit an error of law. Nor may it impose a sentence exceeding that prescribed by statute. In addition, the trial court must examine the circumstances of the crime and the individual background of the defendant. For the sentence imposed must be the minimum punishment consistent with the protection of the public, the ...