March 11, 1983
COMMONWEALTH OF PENNSYLVANIA, APPELLEE
JAMES C. FOX, APPELLANT
No. 1230 Pittsburgh, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, No. CC8101418A.
Before Cavanaugh, Rowley and Montgomery, JJ.
This appeal arises from the denial of appellant's petition for modification of sentence. The petition was filed subsequent to the sentencing of appellant to an aggregate term of five (5) to twenty (20) years for conviction by a jury on seven (7) counts each of theft by deception and theft by failure to make required disposition of funds received. We affirm.
Appellant's sole assignment of error is that the trial court abused its discretion in denying the petition for modification of sentence. He specifically argues that the trial court did not follow the guidelines of the Sentencing Code, and that the sentence given was inappropriate, though admittedly not excessive.
As sentencing is within the broad discretion of the trial court, it will not be disturbed on appeal unless it exceeds the statutory limits or is so manifestly excessive as to inflict too severe a punishment. Commonwealth v. Smith, 247 Pa. Super. 36, 371 A.2d 1025 (1975). The sentence should be imposed for the minimum amount of confinement which is consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant. Commonwealth v. Williams, 274 Pa. Super. 464, 418 A.2d 499 (1980). The particular circumstances of the offense and the character of the defendant must be considered in light of the sentencing code. Commonwealth v. Garrison, 292 Pa. Super. 326, 437 A.2d 407 (1981).
The trial court has the discretion to consider one or more delineated sentencing alternatives, in the absence of a required mandatory minimum sentence, which include total or partial confinement, probation, a determination of guilt without further penalty, and a fine. 42 Pa.C.S.A. § 9721(a). Restitution to the victim or victims may be ordered in addition to these alternatives. 42 Pa.C.S.A. 9721(b). Appellant argued during his modification hearing, and argues now, that his sentence or confinement was inappropriate and an order of restitution would have been more appropriate.
Factors to be considered when restitution is ordered include the extent of the injury suffered and the defendant's ability to pay. Commonwealth v. Galloway, 302 Pa. Super. 145 448 A.2d 568 (1982); Commonwealth v. Wood, 300 Pa. Super. 463 446 A.2d 948 (1982). The trial court specifically stated on the record his reasons for sentencing appellant to total confinement rather than a period of probation with restitution. These reasons were (1) appellant defrauded unsuspecting investors for almost two years; (2) he defrauded the victims of over $500,000; (3) the scheme was well planned and involved newspaper advertising investments in projects which never existed; and, (4) the trial court was convinced that the victims would never be able to recover their losses. Appellant's prior record was also taken into consideration by the trial judge. Such a carefully considered sentence, which is well within the guidelines of the Sentencing Code, was appropriate and will not be disturbed.
Judgment of sentence affirmed.
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