No. 1215 Philadelphia 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas, Montgomery County, Criminal Division, No. 2504 of 1981.
Douglas M. Johnson, Public Defender, Norristown, for appellant.
Ronald Thomas Williamson, Assistant District Attorney, Norristown, for Com., appellee.
Spaeth, President Judge, and Wieand and Montemuro, JJ.
[ 325 Pa. Super. Page 351]
This is an appeal from a judgment of sentence of the Court of Common Pleas of Montgomery County. The questions presented are:
(1) Whether the sentencing judge erred by considering improper factors during the imposition of sentencing?
(2) Whether the sentencing judge failed to take into account the appellant's financial resources and the nature of the burden that payment of a $2000.00 fine would impose, when determining the amount and method of payment of the fine?
(3) Whether the sentence imposed by the sentencing judge was unduly harsh and excessive under the circumstances?
The underlying facts are as follows: The appellant was arrested on July 31, 1981, for the unlawful possession of heroin with intent to deliver same. He was charged with violation of the Controlled Substances, Drug, Device and Cosmetic Act, Pa.Stat.Ann. tit. 35 §§ 780-113(a)(16) & (30). On January 6, 1982, the appellant entered a plea of guilty
[ 325 Pa. Super. Page 352]
pursuant to a limited plea agreement. The plea agreement provided that:
The [appellant] will plead to . . . possession of heroin with intent to deliver and actual delivery of heroin, and the limited plea agreement arrived at between the Commonwealth and the defense is as follows, that the sentence of the Court would not exceed a period of incarceration of three to ten years . . . . There is no agreement whatsoever on fine and Court costs. (N.T. January 6, 1982, pp. 2-3).
After an extensive colloquy on the record, the court accepted the appellant's plea as made knowingly, intelligently, and voluntarily.
The sentencing hearing was held on April 2, 1982, subsequent to the sentencing judge's receipt of the pre-sentence investigation report. The court heard the testimony of the defendant and a defense witness, as well as the arguments of counsel. The sentencing judge, after placing on the record a statement of his reasons, imposed sentence on the appellant. The sentence was to pay the costs of prosecution, a fine of two thousand ($2,000.00) dollars, and to undergo imprisonment for not less than three (3), nor more than ten (10) years in a state correctional institution. The appellant filed a timely motion to modify sentence which was denied. This appeal followed. We vacate the judgment of sentence and remand for resentencing for the reasons which follow.
The appellant asserts several contentions on appeal. First, the sentencing judge made statements on the record indicating reliance on impermissible ...