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COMMONWEALTH PENNSYLVANIA v. ROBERT A. SMILLIE (07/08/83)

filed: July 8, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT A. SMILLIE, APPELLANT



No. 980 Pittsburgh, 1981, Appeal from the Judgment of Sentence of September 3, 1981 In the Court of Common Pleas of Erie County, Criminal Division, No. 404 and 426 of 1981.

COUNSEL

Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.

Frank J. Scutella, Assistant District Attorney, Erie, for Commonwealth, appellee.

Cercone, P.j., Wieand and Beck, JJ.

Author: Cercone

[ 316 Pa. Super. Page 86]

Appellant Robert Smillie takes this direct appeal from the judgment of sentence imposed by the Court of Common Pleas of Erie County on September 3, 1981 following his entry of guilty pleas to charges of burglary*fn1 and retail theft.*fn2 On appeal, he raises two issues for our resolution. First, appellant contends that the sentencing court did not adequately discharge its sentencing responsibilities as they are set forth in the Sentencing Code,*fn3 Pa.R.Crim.P. 1405(b) and supporting caselaw. Concurrently appellant charges that sentencing counsel was ineffective in failing to include, as a reason in support of his Motion for Reduction of Sentence, the failure of the sentencing court to state of record the reasons for the sentence imposed.*fn4 Second,

[ 316 Pa. Super. Page 87]

    appellant maintains that counsel rendered ineffective assistance as a consequence of his failure (a) to specifically object to the contents of the pre-sentence report; (b) to provide appellant with a summary of the contents of the pre-sentence report, thus depriving appellant of the meaningful exercise of his right to allocution as guaranteed by Pa.R.Crim.P. 1405(a); and (c) to assemble witnesses capable of testifying with respect to appellant's character and drug dependence. Discerning no merit in these claims, we affirm.

There is no doubt but 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 appellate court unless it is so clearly excessive as to constitute an abuse of discretion." Commonwealth v. Hollerbush, 298 Pa. Superior Ct. 397, 406-07, 444 A.2d 1235, 1240 (1982).*fn5 In the case at bar, appellant argues not that the sentence imposed was excessive but rather that the sentencing court neglected to fulfill its obligation to place on the record the reasons supporting the sentence.*fn6

[ 316 Pa. Super. Page 88]

In his recent opinion in Commonwealth v. Edwards, 303 Pa. Superior Ct. 454, 450 A.2d 15 (1982), Judge Spaeth characterized the responsibilities of the sentencing judge as 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. ยง 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. Id., 303 Pa. Superior at 472, 450 A.2d at 23-24.

The policy underlying the requirement that the sentencing judge state of record the reasons for the sentence is found in the desirability of making public the actual thought process leading to the imposition of a particular sentence. Commonwealth v. O'Brien, 282 Pa. Superior Ct. 193, 422 A.2d 894 (1980). This directive cloaks appellate courts with the means of comprehending and reviewing the actions of the ...


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