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COMMONWEALTH PENNSYLVANIA v. BERNARD FRANCIS SEMATIS (03/30/89)

filed: March 30, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
BERNARD FRANCIS SEMATIS, APPELLANT



Appeal from the Judgment of Sentence of February 1, 1988 in the Court of Common Pleas of Chester County, Criminal Division, at No. 2168 of 1986.

COUNSEL

David Ferleger, Philadelphia, for appellant.

Nicholas J. Casenta, Jr., Assistant District Attorney, Downingtown, for Com., appellee.

Wieand, Melinson and Hoffman, JJ.

Author: Hoffman

[ 382 Pa. Super. Page 571]

This is an appeal from the judgment of sentence for kidnapping while in visible possession of a firearm. Appellant contends that (1) the imposition of the statutorily required five to ten years incarceration*fn1 constitutes cruel and unusual punishment in light of his unique circumstances, (2) in the alternative, if the mandatory sentencing Act is constitutional, "total confinement" should be construed to include involuntary mental health treatment, and (3) the trial court erred in failing to order implementation of such a mental health treatment plan. For the reasons that follow, we affirm the order below.

On October 21, 1987, appellant pled guilty but mentally ill*fn2 to kidnapping, 18 Pa.C.S.A. ยง 2901(a)(1). At the hearing, appellant admitted to holding a hostage for six and one-half hours while in visible possession of a firearm. On February 1, 1988, appellant was sentenced to a term of imprisonment of not less than five years nor more than ten years plus the cost of prosecution for kidnapping. Appellant filed a motion to modify or vacate the sentence which was denied on March 1, 1988. This timely appeal followed.

Appellant initially contends that the mandatory sentencing statute, which provides for a minimum term of

[ 382 Pa. Super. Page 572]

    imprisonment of five years where a crime is committed by someone in possession of a firearm, is unconstitutional when applied to an individual who enters a plea of guilty but mentally ill. Appellant notes that he has no prior criminal record, he has the support of his family, and he is mentally ill. He argues that the legislature could not have intended that the mandatory five year sentence should apply to a person in these circumstances. We disagree.

The Mandatory Sentencing Act provides in relevant part:

(a) Mandatory sentence. -- Any person who is convicted in any court in this Commonwealth of . . . kidnapping, . . . shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.

(c) Authority of court in sentencing. -- There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place ...


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