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COMMONWEALTH PENNSYLVANIA v. HOWARD T. FENTON (10/13/89)

file : October 13, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
HOWARD T. FENTON, APPELLANT



Appeal From Judgment of Sentence May 31, 1988 In Court of Common Pleas, Criminal Division, Bradford County, at No. 88CR000043. Appeal From Judgment of Sentence May 31, 1988 In Court of Common Pleas, Criminal Division, Bradford County at No. 88CR000050.

COUNSEL

Robert B. McGuinness, Towanda, for appellant.

Robert Fleury, Dist. Atty., Troy, for Com., appellee.

Cavanaugh, Popovich and Hoffman, JJ. Popovich, J., files a dissenting statement.

Author: Cavanaugh

[ 388 Pa. Super. Page 539]

This is a direct appeal from judgment of sentence. Appellant Howard Fenton was serving a sentence of partial confinement on weekends following his conviction for two misdemeanor offenses, disorderly conduct and criminal mischief. On Friday, November 20, 1987, appellant failed to appear at the Bradford County jail as scheduled. Appellant

[ 388 Pa. Super. Page 540]

    was located at a tavern later that evening, arrested, and charged with escape. Once appellant was taken to the county jail, an altercation occurred which resulted in a further charge of simple assault being lodged against Fenton.

On March 24, 1988, appellant entered pleas of guilty to charges of simple assault, a misdemeanor of the second degree, and escape, a felony of the third degree. A hearing and colloquy were conducted by Mott, J., who accepted the guilty pleas. On May 31, 1988, appellant was sentenced to a term of three and one-half to seven years imprisonment on the escape charge, and received a concurrent sentence of eleven to twenty-four months on the assault charge. This appeal followed.

Appellant presents only three questions for our consideration:

I. Whether the sentencing court below gave a sufficient statement of reasons for the sentence imposed.

II. Whether the sentence imposed constitutes cruel and unusual punishment.

III. Whether the lower court erred in denying the appellant's request to withdraw his guilty pleas.

In addition, we will discuss an issue mentioned in appellant's post-verdict motions although it was not raised on appeal to the court. This issue is whether appellant's crime of escape was incorrectly graded as a felony of the third degree instead of a misdemeanor of the second degree. While we believe that the issue is not properly before this court, we recognize that it forms the basis for Judge Popovich's dissent and we feel it would be wise to note the reasons why the trial court's disposition was correct in any event.

Having reviewed the record and applicable authority, we affirm the judgment of sentence entered below.

Appellant first charges that the court did not give adequate consideration of the sentencing guidelines promulgated

[ 388 Pa. Super. Page 541]

    by the Pennsylvania Commission of Sentencing and that the court did not give an adequate statement of reasons for the sentence imposed.

Our Supreme Court has held in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987), that the guidelines promulgated by the Sentencing Commission are of no force at all and that a sentencing court is not required to impose a sentence that would be considered appropriate by the commission. In the instant case the court's sentence was the maximum penalty which the court could impose on a person convicted of a third degree felony. 18 Pa.C.S.A. ยง 106(b)(4). The lower court, at the sentencing hearing, gave its reasoning in arriving at this sentence.

BY THE COURT:

All right, Mr. Fenton, in this case I have considered your age, the information about you that is in the pre-sentence investigation report, and the information about yourself that you have just given me and that your attorney has as well and the evidence of the circumstances of the offense, your personal background and the circumstances that are found to be set forth in the presentence report and are not in dispute. The facts of the offense have been established by your pleas of guilty. In addition I have considered your prior criminal record, your personal characteristics and your potential for rehabilitation and all of the available alternatives to total confinement including any factors weighing in favor of probation or partial confinement. After considering all of these factors I find that one, . . . there is an undue risk during any period of probation or partial confinement, you will commit another crime. Two, you are in need of correctional treatment and rehabilitation that can best be provided by your commitment to an institution and three, a lessor [sic] sentence would depreciate the seriousness of your crimes. I therefore find that a sentence to total confinement is proper . . . . The Court has bent over backwards in the past for the defendant and has been lenient in the past with the defendant. The defendant did

[ 388 Pa. Super. Page 542]

    not avail himself of that leniency and therefore it is obvious to the Court that the defendant is in need of a sentence to a state institution so that he might rehabilitate himself.

(Transcript of 5-31-88, pp.9-12). The record shows that the lower court had the benefit of a presentence report, Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988), and that the court acted within its discretion in sentencing appellant as it did. That another judge confronted with appellant's case might have acted differently does not lead to the conclusion that the sentence imposed in the instant case constitutes an abuse of discretion.

Appellant also argues that his sentence is so "grossly disproportionate" to the offense for which he has been convicted that it violates the ban on cruel and unusual punishment of the Eighth Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment. Appellant seeks to raise this issue in a one page argument without citation of persuasive authority. While the lower court's sentence might ...


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