filed: April 29, 1983.
COMMONWEALTH OF PENNSYLVANIA
ROGER A. STAFFORD, APPELLANT
No. 967 Pittsburgh, 1981, Appeal from the Judgment of Sentence of August 24, 1981 In the Court of Common Pleas of Erie County, Criminal Division, No. 1848 of 1980 and 338 and 339 of 1980.
Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.
Michael R. Cauley, Assistant District Attorney, Erie, submitted a brief on behalf of Commonwealth, appellee.
Cercone, P.j., and Wieand and Beck, JJ.
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This is a direct appeal from the judgment of sentence imposed by the Court of Common Pleas of Erie County on August 24, 1981 following appellant's entry of guilty pleas to charges of resisting arrest*fn1 and simple assault*fn2 at Number 1848 of 1980; robbery*fn3 and simple assault at Number 338 of 1981; and simple assault at Number 339 of 1981. In taking the instant appeal, appellant argues, inter alia,*fn4 that the sentencing court failed to adequately discharge its sentencing responsibilities as they are delineated in the Sentencing Code,*fn5 Pa.R.Crim.P. 1405(b), and supporting caselaw.
After reviewing the transcript of the sentencing proceedings, we agree that the lower court did not state with sufficient specificity the reasons underlying its sentence. Consequently, we vacate the judgment of sentence and remand the case for resentencing.
It is settled that "[s]entencing is a matter within the sound discretion of the sentencing judge, to be exercised within the statutory guidelines and considerations. When so exercised, the sentence will not be disturbed by an
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appellate court unless it is so clearly excessive as to constitute an abuse of discretion." Commonwealth v. Hollerbush, 298 Pa. Superior Ct. 397, 406-407, 444 A.2d 1235, 1240 (1982).*fn6 In view of the wide latitude accorded to sentencing judges, an appellate court's review of a challenged sentence necessarily begins with an evaluation of the degree to which the sentencing judge followed the guidelines set forth in the Sentencing Code.*fn7 Commonwealth v. Coleman a/k/a Chevron, 310 Pa. Superior Ct. 133, 456 A.2d 218 (1983). As we recently stated in Commonwealth v. Kraft, 294 Pa. Superior Ct. 599, 440 A.2d 627 (1982):
If the sentencing judge followed the obligatory procedures enacted to assure careful, intelligent and informed
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sentencing, then this court may review the sentence only to ensure that there has not been an abuse of the wide discretion accorded the sentencing court: Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1977); Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976); Commonwealth v. Landi, 280 Pa. Super. 134, 421 A.2d 442 (1980). On the other hand, if the sentencing judge did not follow the obligatory procedures, then this court must remand for resentencing in accordance with the applicable statutes and rules. Commonwealth v. Butch, 487 Pa. 30, 407 A.2d 1302 (1979); Commonwealth v. Bryner, 285 Pa. Super. 305, 427 A.2d 236 (1981); Commonwealth v. Wicks, 265 Pa. Super. 305, 401 A.2d 1223 (1979). Id., 294 Pa. Superior at 601, 440 A.2d at 628.
Judge Spaeth has characterized the sentencing judge's responsibilities as being two-fold.
The first responsibility is a fact-finding responsibility: the judge must be sure he has enough information. The second responsibility is an application -- and -- explanation responsibility: the judge must apply to the information he has gathered the guidelines specified in the Sentencing Code, 42 Pa.C.S. § 9701 et seq., and explain how the sentence he has selected is responsive to, and reflects the standards embodied in, those guidelines. If the judge fails to fulfill these responsibilities, we must vacate the sentence and remand for resentencing.
Commonwealth v. Edwards, 303 Pa. Superior Ct. 454, 472, 450 A.2d 15, 23-24 (1982) (citations omitted).
The policy underlying the requirement that the sentencing judge state of record the reasons for the sentence is found in the need to make public "the thought process by which he arrives at a particular appropriate sentence." Commonwealth v. O'Brien, 282 Pa. Superior Ct. 193, 196, 422 A.2d 894, 895 (1980). By affording appellate courts with some basis upon which to fully comprehend and fairly review the actions of the sentencing court, this directive
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acts as a shield against arbitrary sentencing decisions while, at the same time, discourages the entertainment of improper or irrelevant factors. Commonwealth v. Kraft, supra, 294 Pa. Super. at 602, 440 A.2d at 630.
While our courts have never required that the statement of reasons cite to specific language of the Sentencing Code, Commonwealth v. Wicks, supra, 265 Pa. Super. at 314, 401 A.2d at 1227, it should, nonetheless, evince the court's reflection on the standards mentioned in the Code and should contain "some explanation of how consideration of those guidelines affected the determination of sentence." Commonwealth v. O'Brien, supra, 282 Pa. Super. at 197, 422 A.2d at 896, quoting Commonwealth v. Wareham, 259 Pa. Superior Ct. 527, 534, 393 A.2d 951, 954 (1978). Clearly proscribed, however, is the mere payment of lip service to the Code's provisions. Commonwealth v. Kraft, supra 294 Pa. Super. at 602 n. 8, 440 A.2d at 630 n. 8.
Instantly, the lower court did enjoy the benefit of a presentence report as well as the remarks of defense counsel made during the sentencing proceedings. However, its statement of reasons falls short of complying with the requirements of the Sentencing Code and the holding of Commonwealth v. Riggins, supra. The sentencing court's fleeting reference to appellant's juvenile record, and the fact that the crimes to which appellant pled guilty were committed with some degree of violence, are of such "brevity and conclusory quality [that] they do not manifest a consideration of the statutory guidelines for sentencing, nor otherwise explain the reasoning behind the sentences imposed."*fn8 Commonwealth v. Wicks, supra, 265 Pa. Super.
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at 313, 401 A.2d at 1227. Moreover, the lower court's opinion, filed pursuant to Pa.R.App.P. 1925, offers little or no insight into its thought processes at the passing of sentence. Consistent with our disposition in Commonwealth v. Wertz, 252 Pa. Superior Ct. 584, 384 A.2d 933 (1978), we now rule that where neither the record of the sentencing proceedings nor the lower court's opinion furnish any adequate explanation for the sentence imposed, we are required to remand the case for resentencing. Although in imposing sentence, the lower court indicated that it considered the contents of the pre-sentence report and defense counsel's arguments, we are unpersuaded that these remarks constitute a statement of reasons which comports in quality and length with that envisioned by the drafters of the Sentencing Code.
Indeed, as we stated in Commonwealth v. Wicks, supra:
Testimony. . . and the contents of a pre-sentence report, cannot constitute a statement of reasons; they rather constitute only the beginning of the process by which the court formulates its statement of reasons. Having received the testimony and pre-sentence report, the court must evaluate them; the testimony may well be in conflict, or not be credible, or otherwise not acceptable to the court, and the same may be so of the contents of the pre-sentence report. This evaluation completed, the court must examine the facts, as it has determined them to be, in light of the statutory guidelines for sentencing. Then, and only then, should the court decide what sentence should be imposed. Finally, having made that decision, the court must state its reasons for the sentence.
Id. 265 Pa. Super. at 313, 401 A.2d at 1227 (emphasis in original).
The judgment of sentence is vacated and the case is remanded for resentencing in accordance with this opinion.