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COMMONWEALTH PENNSYLVANIA v. MICHAEL LARKIN (05/20/88)

decided: May 20, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
MICHAEL LARKIN, APPELLANT



Appeal from the Judgment of Sentence of the Superior Court Entered on November 29, 1985 at No. 01754 Philadelphia, 1984, Affirming the Order of the Court of Common Pleas of Bucks County, Pennsylvania, Criminal Division, Entered on June 7, 1984, at No. 3645 of 1983. Pa. Superior Ct. , A.2d (198 ).

COUNSEL

Eric Kadish, Huntingdon Valley, for appellant.

Alan Rubenstein, Dist. Atty., Wallace H. Bateman, Asst. Dist. Atty., for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ.

Author: Papadakos

[ 518 Pa. Page 226]

OPINION OF THE COURT

After a non-jury trial before Judge Biester, Jr., of the Court of Common Pleas of Bucks County, Appellant, Michael Larkin, was found guilty of two counts of robbery,*fn1 theft by unlawful taking,*fn2 receiving stolen property,*fn3 simple

[ 518 Pa. Page 227]

    assault,*fn4 recklessly endangering another person,*fn5 possessing an instrument of crime,*fn6 and carrying a firearm without a license.*fn7 The trial court found that, during the course of the robbery, Appellant visibly possessed a firearm as defined under the Mandatory Sentencing Statute, 42 Pa.C.S. § 9712. In conformity with the reports of several psychologists and psychiatrists, coupled with admitted factual testimony at trial, the trial court also found that Appellant was "guilty but mentally ill" as that term is defined at 18 Pa.C.S. § 314.*fn8 On June 7, 1984, Appellant was sentenced to a period of incarceration of not less than five nor more than ten years at a state correctional institution. Although Appellant was found*fn9 to be severely mentally disabled under the statute permitting a finding of guilty but mentally ill (18 Pa.C.S. § 314), the trial judge imposed the sentence that he did only because he expressly determined that it was required under the Mandatory Sentencing Statute (42 Pa.C.S. § 9712), which provides for a minimum term of imprisonment of five years where a crime is committed by someone in visible possession of a firearm.*fn10 The Superior

[ 518 Pa. Page 228]

Court (Del Sole, Montemuro and Beck, JJ.) affirmed in a memorandum opinion and per curiam order. 352 Pa. Super. 615, 505 A.2d 1033.

In his appeal to this Court, Appellant argues that his sentence was improper for two broad reasons. First, he argues that 42 Pa.C.S. § 9712, the Mandatory Sentencing Statute, is unconstitutional both on its face and as it was applied in this case. Second, he argues that the Mandatory Sentencing Statute was improperly applied in a situation where Appellant was found guilty but mentally ill under 18 Pa.C.S. § 314. Both arguments must be rejected.

Appellant presents five grounds upon which he argues that the Mandatory Sentencing Statute is unconstitutional, or that it was applied here in an ...


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