No. 851 Pittsburgh, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Warren County, Criminal Division, at Nos. 54 and 55 of 1981.
Philip B. Friedman, Erie, for appellant.
Richard A. Hernan, District Attorney, Warren, for Commonwealth, appellee.
Spaeth, Johnson and Hoffman, JJ.
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Appellant pled guilty to two counts of delivering a hashish derivative and was sentenced to serve concurrent prison terms of two-and-one-half-to-five years, and to pay a single $5,000 fine, $700 restitution, and costs.*fn1 Appellant now challenges the excessiveness of his prison terms and the propriety of his fine. For the reasons that follow, we vacate his fine and remand for further proceedings consistent with this opinion, but affirm the remainder of his sentence.
Appellant contends that his prison terms exceed the minimum period of confinement consistent with the protection of the public, the gravity of the offense, and his rehabilitative needs. See 42 Pa.C.S.A. § 9721(b); Commonwealth v. Martin, 466 Pa. 118, 133, 351 A.2d 650, 658 (1976). We disagree. Sentencing is a matter within the sound discretion of the lower court whose determination will not be disturbed absent a manifest abuse of discretion. See, e.g., Commonwealth v. Knight, 479 Pa. 209, 212, 387 A.2d 1297, 1299 (1978). In exercising its discretion, the lower court must give due consideration to the circumstances of the crime and the character of the defendant. Id.; Commonwealth v. Kostka, 475 Pa. 85, 92 n.8, 379 A.2d 884, 888 n.8 (1977); Commonwealth v. Martin, supra, 466 Pa. at 133, 351 A.2d at 658. Moreover, the court must consider, but need not reiterate, the sentencing criteria established by our legislature. See, e.g., Commonwealth v. Butch, 487 Pa. 30, 32, 407 A.2d 1302, 1303 (1979); Commonwealth v. Zimmerman, 282 Pa. Superior Ct. 286, 297, 422 A.2d 1119, 1125 (1980). To facilitate meaningful appellate review and to ensure that
[ 300 Pa. Super. Page 513]
discretion has, in fact, been exercised, the sentencing court must state its reasons on the record at the time of sentencing. See 42 Pa.C.S.A. § 9721(b); Pa.R.Crim.P. 1405(b); Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) (plurality opinion). The record reveals that appellant was a single, twenty-eight year old, having a year and a half of college education, a spotty employment history, and no dependents. He had previously been placed on probation in Arizona for selling valium,*fn2 and had participated in several other drug transactions locally. Moreover, appellant admitted his complicity in delivering the drugs to an undercover officer who had placed an "order." Appellant had the opportunity to make a statement and his counsel had the opportunity to make argument and present other relevant information. See Commonwealth v. Wareham, 259 Pa. Superior Ct. 527, 533, 393 A.2d 951, 953 (1978). On that basis, the lower court sentenced appellant to serve two concurrent prison terms of two-and-one-half-to-five years. The lower court stated that the sentence was based upon the public safety, public attitude against illegal drug sales, appellant continuing involvement in drug sales as a vocation, and his previous convictions and probation for selling drugs. Although not phrased in the vernacular of the sentencing code, we are satisfied that the lower court adequately considered appellant's character and the circumstances surrounding the crime and concluded that imprisonment for that period was warranted because of the threat of recidivism, 42 Pa.C.S.A. §§ 9722(8), (9); 9725(1), the seriousness of the crime, id. §§ 9722(1), (2); 9725(3), and the likelihood that appellant would not respond to probation, id. §§ 9722(7), (9), (10); 9725(2). Under these circumstances, we cannot say that the lower court manifestly abused its discretion. See Commonwealth v. Butch, supra.
Appellant contends also that his fine was improper because the lower court had ...