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COMMONWEALTH PENNSYLVANIA v. RAYMOND W. PETERS (07/21/86)

submitted: July 21, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
RAYMOND W. PETERS, JR., APPELLANT



Appeal from the Judgment of Sentence of january 21, 1986 in the Court of Common Pleas of Montgomery County, Criminal Division, at No. 1343-85, 1357-85, 1358-85.

COUNSEL

Vincent P. Difabio, Philadelphia, for appellant.

Mary M. Killinger, Assistant District Attorney, Norristown, for Com., appellee.

Watkins, Hoffman and Hester, JJ. Hester, J., files a dissenting statement.

Author: Hoffman

[ 358 Pa. Super. Page 95]

This is an appeal from the judgment of sentence imposed following appellant's plea of guilty to two charges of possession of a controlled substance with intent to deliver, one

[ 358 Pa. Super. Page 96]

    charge of possession of a controlled substance, and one charge of criminal conspiracy. Appellant contends that the lower court erred when it failed to consider any factor other than the nature of the crimes charged when sentencing him. We find that this contention has merit and, therefore, reverse the judgment of sentence and remand the case for resentencing.

Appellant was arrested after the sale of hashish and marijuana to an undercover police officer. See Lower Court Opinion at 1. Following appellant's arrest, a search warrant was procured for his home, and a small amount of marijuana was seized. Appellant entered a plea of guilty to the above charges and was sentenced to terms of imprisonment of one-to-two years on each of the possession with intent to distribute charges and a six-to-twelve month term of imprisonment on the possession charge. Sentence was suspended on the criminal conspiracy charge. All sentences were to be served consecutively, for an aggregate sentence of two-and-one-half-to-five years imprisonment. A timely motion to reconsider sentence was filed and denied. This appeal followed.

Appellant contends that the lower court erred in failing to consider factors other than the nature of the crimes involved in sentencing him. We agree. The imposition of a proper sentence is a matter which is vested in the sound discretion of the trial court, and it will not be disturbed on appeal unless the sentence exceeds the statutory maximum or is so excessive so as to constitute a manifest abuse of discretion. Commonwealth v. Sanders, 339 Pa. Superior Ct. 373, 381, 489 A.2d 207, 211 (1985). However, a sentencing court must consider the history, character, and condition of the defendant and not only the nature and circumstances of the crime in imposing sentence. 42 Pa.C.S.A. ยง 9725. See also Commonwealth v. Arent, 352 Pa. Superior Ct. 520, 523, 508 A.2d 596, 597 (1986). Additionally, the court must consider the rehabilitative needs of the defendant, the need for the protection of the public as well as the gravity of the offense. Commonwealth v. McCall, 320 Pa. Superior Ct. 473, 480,

[ 358 Pa. Super. Page 97467]

A.2d 631, 634 (1983). A statement by a sentencing court in its opinion that it considered all of the appropriate factors does not cure its failure to do so during sentencing. See Commonwealth v. Holler, 326 Pa. Superior Ct. 304, 308, 473 A.2d 1103, 1106 (1984).

A review of the transcript of the sentencing hearing reveals that appellant had no prior criminal record, a good work history and an excellent relationship with his young son. See N.T. January 13, 1986 at 1-15. However, the sentencing court based its sentence totally upon the nature of the crimes charged. At ...


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