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COMMONWEALTH PENNSYLVANIA v. ROBERT P. ZOOK (06/11/82)

June 11, 1982

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT P. ZOOK, JR., APPELLANT



No. 2937 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lancaster County at Nos. 827, 828, 829, 830, 914, 915 of 1978.

Before Wickersham, McEWEN and Popovich, JJ. Popovich, J. files a memorandum dissenting opinion.

Per Curiam:

Judgment of sentence affirmed.

POPOVICH, J. files a memorandum dissenting opinion.

MEMORANDUM

Robert F. Zook, Jr., appellant, entered pleas of guilty to eleven counts of burglary and six counts of theft on September 18, 1978. The Honorable Wilson Bucher of the Lancaster County Court of Common Pleas sentenced Zook to a nine to eighteen month prison term on one burglary and theft charge and to two years probation on all remaining charges. Zook was to make restitution on all charges and to pay costs of prosecution. Judge Bucher recognized the seriousness of the offenses Zook committed but also noted Zook's lack of an adult criminal record.

Thereafter Zook violated the conditions of his probation by changing his residence without notifying his probation officer. Even more grave were Zook's subsequent offenses of harassment and theft. A probation revocation hearing was held on November 24, 1980 before Judge Bucher, who sentenced Zook to a term of imprisonment of not less than three nor more than six years. Zook's motion to modify his sentence was denied and this appeal timely followed.

Before us Zook's sole contention is that the sentence imposed on the probation violation is excessive. In a recent case examining a claim that a sentence imposed was excessive, our supreme court delineated the scope of appellate review of sentencing as follows:

Traditionally, appellate courts in this jurisdiction have been reluctant to intrude upon the sentencing discretion of trial courts. We have long maintained that the appellate scope of review of the sentencing decision should be limited to sentences that exceeded the statutorily prescribed limits or sentences which were so manifestly excessive as to constitute a constitutionally impermissible sentence.... This perception evolved from our adherence to the concept of individualized sentencing and the belief that the effectuation of that objective was best served by granting broad discretion to the sentencing courts.... More recently, question has been raised as to the wisdom of conferring upon the sentencing court almost unlimited, unstructured and unreviewable discretion. Both the legislature and this Court have been gravitating to a curtailment of the unlimited discretion originally entrusted to the sentencing court.

Commonwealth v. Cottle, 493 Pa. 377, 382-83, 426 A.2d 598, 600 (1981) (citations and footnotes omitted). See also Commonwealth v. Edrington, 490 Pa. 251, 416 A.2d 455 (1980). The discretion of the sentencing court is of course circumscribed by the statutory maximum punishment mandated by the legislature, the Sentencing Code, 42 Pa.C.S. ยง 9721 et seq., and the well-established requirement that reasons for the sentence imposed must be placed upon the record. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977).

Instantly, Judge Bucher imposed a three to six year sentence, a term of imprisonment well within the statutory maximum.*fn1 If, as here, a sentence is within the statutory limits we will not find an abuse of discretion unless the sentence is so manifestly excessive as to inflict too severe a punishment. Commonwealth v. Wiggins, 274 Pa. Super. 617, 623, 418 A.2d 577, 580 (1976).

In determining whether the sentencing judge abused his discretion by imposing a manifestly excessive sentence, we must review the judge's reasons for imposing the sentence. Commonwealth v. Valentin, 259 Pa. Super. 496, 393 A.2d 935 (1978). When Judge Bucher sentenced Robert Zook he had benefit of a pre-sentence report, the testimony of law enforcement officers as well as his previous knowledge of Zook obtained in the original sentencing. He also referred to the Sentencing Code when announcing his decision. Review of the record shows that the lower court complied with the mandates of Riggins, supra. The sentencing colloquy demonstrates that Judge Bucher was aware of Zook's background and deliberately considered the information before him.

Judgment of sentence affirmed.

POPOVICH, J. files a memorandum ...


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