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

SUPERIOR COURT OF PENNSYLVANIA


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. § 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 dissenting opinion.

POPOVICH, J.:

Today, the majority, in blatant disregard of the principle of stare decisis, overrules Commonwealth v. Cruz, Pa. Super. , 436 A.2d 220 (1981). I dissent.

Herein, appellant only contends that the sentence imposed was manifestly excessive. With regard to this contention the majority concludes that because the sentencing judge had "benefit of a presentence report, the testimony of law enforcement officers as well as his previous knowledge of [appellant]... and was aware of [appellant's] background and deliberately considered the information before him," the mandates of Commonwealth v. Riggins, Pa. , 377 A.2d 140 (1977), and the Sentencing Code were complied with. (Slip Opinion at 3).

This conclusion, however, is in direct conflict with our holding in Commonwealth v. Cruz, supra, the tenets of Commonwealth v. Riggins, supra, and the dictates of our Sentencing Code.*fn1 Specifically, the sentencing judge's statement of reasons for the imposition of sentence is defective because it fails to disclose "'the thought process by which he arrive[d] at [this] particular sentence'" or otherwise "inform as to the weight accorded factors individual to the defendant as required by 42 Pa. C.S.A. § 9721(b)...." Commonwealth v. Cruz, Pa. Super. at , 436 A.2d at 222 (quoting Commonwealth v. O'Brien, Pa. Super. , , 422 A.2d 894, 896 (1980)). Consequently, this court cannot render a proper evaluation of appellant's claim and must vacate the judgment of sentence and remand for resentencing. Commonwealth v. Bryner, Pa. Super. , , 427 A.2d 236, 238 (1981); Commonwealth v. Wicks, Pa. Super. , n.6, 401 A.2d 1223, 1227 n.6 (1979). Commonwealth v. Cruz, supra, mandates said result.

To explicate, in Cruz, the sentencing court had before it "a comprehensive pre-sentence report and was informed as to circumstances surrounding the crime, the physical and mental condition of the defendant, defendant's showing of a lack of any prior criminal record, and defendant's conduct during the pretrial period of incarceration." Commonwealth v. Cruz, Pa. Super. at , 436 A.2d at 222. The Cruz panel nevertheless opined that "[t]he mere presence in the record of information relating to [the nature and circumstances of the crime and the history, character, and condition of the defendant] is insufficient to meet the statutory requirement that the sentencing court articulate reasons for the sentence imposed."*fn2 Pa. Super. at , n.2, 436 A.2d at 222 n.2 (emphasis added).

Hence, despite the presence in the record of information relating to sentencing factors, the Cruz panel unanimously held that only "a statement of the consideration given to factors individual to the circumstances of the crime and of the defendant... made in open court" will satisfy the directives of the Sentencing Code and Chapter 1400 of the Pennsylvania Rules of Criminal Procedure. Commonwealth v. Cruz, Pa. Super. at , 436 A.2d at 222 (emphasis added).

Here, the sentencing court had before it virtually identical information*fn3 and, when it came time to fix sentence, the court's statements consisted, in their entirety, of the following:

"THE COURT: All right. The reason for this sentence that's about to be imposed: The Court finds as a fact that Robert Peter Zook, Jr. violated his probation. The Court incorporates by reference the testimony of the probation officer and the detective, which the Court finds credible.

The Court also has before it the presentence investigation that was conducted prior to Judge Brown placing him on probation. We also have the intake evaluation dated October 13, 1980 which gives this man's family, marital history, education, arrest record, drug and alcohol history, medical records, prior treatment history. The Court considers all of these documents and the sentencing code criteria.

On 914, 915, 830, 829, 828 and 827, the Court revokes the probation and imposes the following sentence:

The Court sentences you to pay the costs and make restitution in the amount previously determined, and undergo imprisonment in the State Correctional Institution at Camp Hill for a period of not less than three nor more than six years. This sentence is to be concurrent as to all of these information numbers....

(N.T. Sentencing, 11/24/80, pp. 12-13).

In this writer's view, the above-quoted remarks, specifically, the court's reference to testimony, pre-sentence reports, and the sentencing code, do not constitute "disclos[ure] in open court at the time of sentencing, [or] a statement of the reason or reasons for the sentence imposed."*fn4 Commonwealth v. Cruz, Pa. Super. at , 436 A.2d at 222. Hence, the Riggins defect.

This conclusion is in accord with other controlling cases where, despite the sentencing court's having considered those materials pertinent to the sentencing decision, its failure to state of record publicly the weight accorded factors peculiar to the defendant and his sentence was reversible error. To explicate, in Commonwealth v. Artis, Pa. Super. , 439 A.2d 1199 (1982), the Cruz panel of judges stated:

"At the threshold, this court must be able to determine that the sentencing judge in fact exercised discretion.... [Hence, we] require... that the sentencing judge '... make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed.'" Id. at , 439 A.2d at 1203 (citations omitted).

Up until today, we have said that "the contents of a pre-sentence report cannot constitute a statement of reasons." Commonwealth v. Wicks, 265 Pa. Super. 305, , 401 A.2d 1223, 1227 (1979). Nor can the court's mere reference to its consideration of a pre-sentence report or other sentencing factors serve to explain the reasoning behind the sentence imposed. Commonwealth v. Kraft, Pa. Super. , , 440 A.2d 627, 630 (1982) ("[T]he mere presence in the record of evidence... upon which the sentencing judge could have relied does not meet the requirement that the judge state what it was that the court did rely on in imposing sentence...."); Commonwealth v. Cruz, supra. It is equally axiomatic that "[t]estimony... cannot constitute a statement of reasons... [it] rather constitute[s] only the beginning of the process by which the court formulates its statement of reasons." Commonwealth v. Wicks, Pa. Super. at , 401 A.2d at 1227. See Commonwealth v. Bryner, Pa. Super. , n.2, 427 A.2d 236, 238 n.2 (1981). Finally, when a sentencing transcript is devoid of rationale for the sentencing decision we are incapable of "safeguard[ing] against arbitrary decisions" or "prevent[ing] consideration of improper and irrelevant factors." Hence, it is well-settled that the lower court's failure to file a statement of reasons is reversible error. See Commonwealth v. Wicks, Pa. Super. at , 401 A.2d at 1227 ("It is not our province to guess at the lower court's reasons for the sentence, and we must not substitute our thought processes for what might have been the thought processes of the lower court.").

Instantly, prior to imposing sentence, the court first "incorporate[d] by reference the [credible] testimony of the probation officer and the detective...." (N.T. Sentencing, 11/24/80, pp. 12-13). Although this testimony was evidence reflective of "the circumstances of the offense and the character of the defendant," the fact that testimony was proffered at the hearing does not dispense with the requirement that the court state its reasons for the sentence. Commonwealth v. Bryner, Pa. Super. at n.2, 427 A.2d at 238 n.2.

The court next "consider[ed the pre-sentence report, the intake evaluation] and the sentencing code criteria."*fn5 As has been indicated previously, however, these documents do not constitute articulable reasons for the sentence imposed. Commonwealth v. Cruz, supra.

Given the fact that the sentencing court completely failed to articulate reasons for the sentencing decision, I would vacate the judgment of sentence and remand for proceedings consistent with this opinion.*fn6 Because the majority's ruling is to the contrary, I dissent.


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