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COMMONWEALTH PENNSYLVANIA v. ANTONY J. TERRIZZI (06/04/85)

submitted: June 4, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTONY J. TERRIZZI, APPELLANT



Appeal from the Judgment of Sentence in the Court of Common Pleas of Lancaster County, Criminal Nos. 1090, 1091 of 1983.

COUNSEL

Thomas G. Klingensmith, Assistant Public Defender, Elizabethtown, for appellant.

Henry S. Kenderdine, Jr., District Attorney, Lancaster, for Commonwealth, appellee.

Spaeth, President Judge, and McEwen and Beck, JJ. Beck, J., files a concurring and dissenting opinion.

Author: Spaeth

[ 348 Pa. Super. Page 608]

This is an appeal from judgments of sentence for rape and burglary.*fn1 Appellant argues that the trial court abused its discretion in imposing sentences exceeding the Sentencing Guidelines. We find that the court did not abuse its discretion in imposing the sentence for rape. We therefore affirm that sentence. We also find, however, that in imposing the sentence for burglary, the court did not adequately explain its departure from the guidelines. We therefore vacate that sentence and remand for resentencing.*fn2

[ 348 Pa. Super. Page 609]

The court sentenced appellant to a 10 to 20 year term of incarceration for rape and a consecutive 10 to 20 year term of incarceration for burglary (Lancaster Cr. No. 1091 of 1983).*fn3 Both sentences are the maximum allowed by law. Appellant argues that the court abused its discretion in failing to explain its departure from the guidelines, and in failing to take into consideration certain mitigating circumstances. Brief for Appellant at 15.

We begin with the principle that sentencing is within the sound discretion of the trial court. Accordingly, absent an abuse of discretion, we will not disturb the sentence. Commonwealth v. Johnson, 333 Pa. Super. 42, 45, 481 A.2d 1212, 1214 (1984). In exercising its discretion, however, the trial court must comply with certain procedures.

In Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), the Supreme Court held that the trial court must state the reasons for its sentence on the record, as such a statement is "invaluable" in determining "whether the sentence imposed was based upon accurate, sufficient and proper information." Id., 474 Pa. at 131, 377 A.2d at 148. In addition, the legislature has required a statement of reasons: "In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentence, a statement of the reason or reasons for the sentence imposed." Act of Nov. 26, 1978, P.L. 1316, No. 319, § 1, effective January 1, 1979, 18 Pa.C.S. § 1321(b) [now 42 Pa.C.S. § 9721(b)]. The failure to provide a statement of reasons is error requiring resentencing. Commonwealth v. Zimmerman, 495 Pa. 425, 434 A.2d 1164 (1981); Commonwealth v. Gaskin, 325 Pa. Super. 349, 472 A.2d

[ 348 Pa. Super. Page 6101154]

(1984); Commonwealth v. McCall, 320 Pa. Super. 473, 467 A.2d 631 (1983).

Since the promulgation of the Sentencing Guidelines, the trial court must also consider the guidelines, and if it departs from them, provide a statement of reasons for the departure. 42 Pa.C.S. § 9721(b). "Failure to comply shall be grounds for vacating the sentence and resentencing the defendant." Id. We must also vacate and remand for resentencing when

(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;

(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or

(3) the sentencing court sentenced outside the sentencing guidelines and the ...


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