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COMMONWEALTH PENNSYLVANIA v. CARLOS MASIP (10/18/89)

submitted: October 18, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
CARLOS MASIP



Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 87-01-322-24.

COUNSEL

Hugh Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellant.

Arthur H. James, Philadelphia, for appellee.

Brosky, Rowley and McEwen, JJ.

Author: Brosky

[ 389 Pa. Super. Page 367]

This is an appeal taken by the Commonwealth of Pennsylvania from the judgment of sentence imposed upon Carlos Masip following the latter's bench trial conviction of possession of a controlled substance, possession with intent to manufacture or deliver a controlled substance, possession of drug paraphernalia and criminal conspiracy.

On appeal, the Commonwealth complains that the sentencing court abused its discretion when it sentenced Masip to a minimum nine months' confinement on the charge of possession with intent to manufacture or deliver to be followed with terms of probation for the conspiracy and drug paraphernalia charges. We recognize that the Commonwealth has demonstrated the existence of a substantial question that the sentence imposed adversely impacts upon the scheme of the Sentencing Code as a whole. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); Commonwealth v. Cleveland, 364 Pa. Super. 402, 528 A.2d 219 (1987); Pa.R.App.P. 2119(f). Therefore, we grant the Commonwealth's request to review this discretionary aspect of sentencing. Because we conclude that the court abused its discretion in sentencing Masip, we vacate the sentence imposed and reverse and remand for resentencing in accordance with the directives of this Opinion.

Specifically, Masip's sentence consists of the following terms and conditions: On the charge of possession with intent to manufacture or deliver a controlled substance, a term of nine to twenty-three months' incarceration was imposed. As a condition of parole, Masip was to complete an in-patient drug therapy program followed by out-patient therapy and was to undergo random urinalysis. He was also required to participate in a program that would enable him to learn the English language. Relative to the charge of criminal conspiracy, Masip received a sentence of probation of three years to run consecutively to the sentence imposed on the charge of possession with intent to manufacture or deliver. Masip was also sentenced to a two-year term of probation on the charge of possession of drug

[ 389 Pa. Super. Page 368]

    paraphernalia to run concurrently with the three-year probationary sentence imposed for the charge of criminal conspiracy.

The Commonwealth assigns as the reason for the minimal sentence imposed the sentencing court's reliance on language contained in Section 9721(b) of the Sentencing Code, 42 Pa.C.S.A. ยง 9721(b), prior to its amendment in 1978. That section formerly read:

(b) General standards. -- In selecting from the alternatives set forth in subsection (a) of this section, the court shall follow the general principle that the sentence imposed should call for [the minimum amount of] confinement that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant.

The bracketed portion of the above was deleted by the 1978 amendment. The sentencing court, in its Opinion filed in support of its denial of the Commonwealth's Motion for reconsideration of sentence, concluded that the sentence imposed was not an abuse of its discretion because "[t]his court . . . found no compelling reason not to afford defendant with an opportunity to address his drug problem subsequent to a period of incarceration, with confinement in a drug treatment facility for a minimum of nine months. (See Commonwealth v. Sheridan, [348 Pa. Super. 574, 502 A.2d 694 (1985)] [)]." At 7. (Emphasis in text).

The language in Sheridan upon which the sentencing court relied tracked that contained in the pre-1978 amendment to Section 9721(b). "A sentence must be the minimum punishment consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant." At 579, 502 A.2d at 696; (emphasis added). From this, the Sheridan court concluded that it was not an abuse of discretion to sentence the appellant there to a term of ...


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