No. 1838 Philadelphia, 1981, Appeal from the Judgment of Sentence of June 13, 1981 In the Court of Common Pleas of Cumberland County, Criminal Division, No. 274 Criminal, 1981.
Ronald A. Turo, Assistant Public Defender, Carlisle, for appellant.
Theodore B. Smith, Assistant District Attorney, Carlisle, for Commonwealth, appellee.
Cercone, President Judge, and Cavanaugh, Wieand, Cirillo, Popovich, Montgomery and Hoffman, JJ. Wieand, J., files a dissenting opinion. Cirillo, J., files a dissenting opinion in which Wieand, J., joined.
[ 321 Pa. Super. Page 21]
On May 11, 1981, appellant, Harry Mullen, entered a plea of guilty to the charge of incest.*fn1 A pre-sentence report was prepared and submitted to the lower court. At a sentencing hearing on July 16, 1981, appellant's attorney summarized the contents of the pre-sentence report on the record. Immediately afterwards, the sentencing court entered the following order.
AND NOW, June 16, 1981, at 9:56 a.m., the defendant, Harry Mullen, having previously appeared before the Court and tendered a plea of guilty, and now appearing for sentence with the Public Defender, Taylor P. Andrews, Esquire, the Court being in receipt of a pre-sentence investigation report,
Sentence of the Court is that the defendant pay the costs of prosecution, undergo imprisonment in a State Institution for not less than one nor more than three years. The defendant to be given credit for fifty-nine days previously spent in the Cumberland County Prison.
The reason for the above sentence is that the Court believes that any lesser sentence would depreciate the seriousness of the offense.
The Court having been informed that there is a possibility that the defendant does wish to file the motions within the ten-day period, pending the filing of said motions, he is continued on existing bail.
[ 321 Pa. Super. Page 22]
Less than a month later, after appellant had filed a Motion for Reconsideration of Sentence, the sentencing court entered this order.
AND NOW, July 9, 1981, the court having considered the Motion for Reconsideration of Sentence, adds the following to the Order of Court dated June 16, 1981:
Prior to the imposition of sentence, the court did consider the alternatives and guidelines under the sentencing code and the facts of the incident as set forth at the time of entry of the guilty plea.
The main facts considered were as follows:
1) The defendant was thirty-six (36) years old and the niece was sixteen (16) years old at the time of the incident.
2) The incident took place on March 15, 1981, about seventeen (17) days after he was released from State Parole on a previous State sentence of one to three years which involved an ...