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COMMONWEALTH PENNSYLVANIA v. NATHANIEL CARTER (04/30/84)

submitted: April 30, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
NATHANIEL CARTER, APPELLANT



No. 1006 Philadelphia, 1983, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Montgomery County, Nos. 1975-81 and 3725-80.

COUNSEL

Douglas M. Johnson, Assistant Public Defender, Souderton, for appellant.

Joseph A. Smyth, District Attorney, Norristown, for Commonwealth, appellee.

Spaeth, President Judge, and Wieand and Cirillo, JJ. Cirillo, J., filed a dissenting opinion.

Author: Wieand

[ 336 Pa. Super. Page 277]

Nathaniel Carter committed acts constituting violations of parole and probation. After hearing, his parole was revoked, and he was directed to serve the balance of a 23 month maximum sentence previously imposed for recklessly endangering another person. Carter's probation was also revoked, and he was sentenced to serve a concurrent term of imprisonment of not less than nineteen months nor more than five years on a prior conviction for a firearms offense. Carter appealed. Although his appeal was filed from both orders, he has conceded the violations. His argument, therefore, is directed toward the new sentence of imprisonment imposed by the court. This sentence was imposed, he contends, without benefit of a pre-sentence investigation by a sentencing court which gave inadequate reasons for the sentence which it imposed. Because there is merit in this contention, the judgment of sentence imposed for the firearms offense will be vacated, and that matter will be remanded for resentencing.

The imposition of a sentence of imprisonment for the firearms offense was not accompanied by a statement of the court's reasons for the sentence. Moreover, the sentence was not preceded by a pre-sentence investigation. Although defense counsel made a specific request for a

[ 336 Pa. Super. Page 278]

    pre-sentence investigation, the court denied his request. Appellant had previously been on probation and parole,*fn1 the court said, and it was "not going to waste the facilities of the probation department." This is reflected by the following:

[THE COURT]: You have been around the courts too long to ask for a drug program now. You had all the essential elements working for you in order to get yourself a drug program. You had a probation officer that you could have asked for a drug program. You have had an extensive juvenile record. You have had a thread of violence throughout your career and you could not stay out of trouble when you were given probation and parole. All of these things don't militate any hand wringing at this point for your rehabilitation. If you want rehabilitation, you rehabilitate yourself. It is about time the public stopped supporting you throughout this community and you start supporting yourself. If you want a drug program, you get one at Graterford. The nonsense stops here. This is the second Gagnon that I have had in these files from you and there is a new charge still pending, floating around. Irresponsible behavior does not necessitate any help at this point. You are the one that is taking it. You are the one that got yourself into this thing and you are the one that continually breaks the law. The soft soap about drugs getting you into trouble does not go very far with me at this point.

[ 336 Pa. Super. Page 279]

MR. WALSH: Your Honor, at this time I would request a pre-sentence investigation for my client before sentencing. I hear your statements right now, Your Honor, that you don't feel a drug program is appropriate for the defendant. However, I feel that he Page 279} should be at least evaluated to give you alternative thinking. It is true that some of these charges --

THE COURT: I am not going to waste the facilities of the probation department. He has been on probation and parole twice. He has been readmitted. I am not wasting my time at all with any ...


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