*1
It has been held that
summary proceedings, being
law,
derogation
the common
will
strict adherence
require
Fehr,
them. Graver v.
to the law creating
(1879).
Judgment of sentence reversed and appellant discharged. JACOBS, Judge, President dissents.
HOFFMAN, J., did not participate in the consideration or decision of this case. Pennsylvania
COMMONWEALTH of COTTLE, Appellant. Ernest Superior Pennsylvania. Court of
Submitted June 1977.
Decided Nov. *2 Packel, Defender, and Benjamin John W. Assistant Public Lerner, Defender, for Philadelphia, appellant. Glass,
Deborah E. Assistant District and F. Attorney, Philadelphia, Emmett District Fitzpatrick, Attorney, Commonwealth, appellee. WATKINS, JACOBS, Judge,
Before President HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
87 VOORT, Judge: VAN der
Appeal judgment is taken from sentence rendered following questions presented revocation of The probation. obliged here are should be to whether record his as place upon explanation sentencing, thereon; write an whether this case opinion appellant abused his discretion in confinement when the to the con- probation department recommended trary; and whether the sentence was excessive. subject of the trial court’s need explain rea given
sons the sentence has been much dis recently cussed. Commonwealth 474 Pa. 377 Riggins, A.2d (1977), that such made part mandates reasons must be Kostka, the record. also Commonwealth v. See Wertz, 379 A.2d (1977) Pa.Su per. requirement This has been met in this case Opinion BRAIG’S which he *3 stated his reasons his sentence. Therein the out pointed that for four which years, during appel times, had lant been arrested several he had not made himself to probation available officials. he Consequently was sentenced to confinement. The lower court opinion amply the describes facts which were basis of the the probation revocation and which rise gave sentencing. to the That opinion states as follows: 4,
“On September 1969 Ernest Cottle appeared of Herbert Levin the Philadelphia of Court Com- mon pled Pleas and guilty charges Aggravated of and Robbery Motor Vehicle Larceny Receiving and Stolen Goods. On the and Larceny Receiving Stolen Goods charges, placed he was on five years probation to begin at the expiration of the the sentence on Robbery charge, probationary 25, the period being from January 25, January During 1976. probationary period, charges defendant was arrested on of Burglary, Larce- ny, Receiving Stolen and Goods Violation of Uniform Firearms Act. He failed to appear separate three trials hearings on these charges, his whereabouts anyone
were unknown to the Courts or Probation 6, 1972 Department September until arrest on a Bench March Warrant on 1976. Bills of Indict- ments on the charges, separate which resulted in the three arrests during probationary period, were either nolle or dismissed in of 1976. prossed April “Defendant before this Court Levin no appeared (Judge longer being bench) for a on Gagnon hearing 1976 and a II Gagnon hearing June on June At the II found hearing, Court that defend- ant had violated Judge Levin’s sentence of probation larceny Receiving charges, probation revoked that a sentence of to 5 imposed years incarceration 2% on the defendant. Specifically, upon violation which defendant’s revoked was his failure to report to or cooperate with the Probation Department for year period.” a four approximately Furthermore, Opinion court below fully answers assignments the other of error. We find wholly without merit the of abuse of allegations discretion as to sentencing and the claimed excessiveness of the sentence. For to have absented himself from the appellant processes of criminal justice for four and to have been arrested years, and failed to appear court numerous times period, strong are reasons the sentence justifying imposed. affirmed.
Judgment sentence SPAETH, J., files dissenting opinion.
WATKINS, former Judge, HOFFMAN, J., President did not in the participate consideration or decision of this case.
SPAETH, Judge, dissenting: The judgment of sentence should be vacated and the case resentencing by judge. remanded for another
-1- is judge It settled that must state the Kostka, Commonwealth reasons for the sentence. 475 Pa. Riggins, (1977); 379 A.2d 115, 377 A.2d 140
Here, sentence, when imposing judge said:
THE a COURT: This is There is no Hearing. question the Court’s mind that he is in violation of the terms and the probation imposed conditions of by Judge Levin on of Bill Indictment because of his specifically refusal to to report cooperate with the efforts of the Department. Probation
I think we have a clear now sufficiently record sup- ported by conclusion, the facts to reach I find he has violated the terms and of conditions imposed Judge Levin. will therefore revoke that probation and re-impose prison sentence on Bill 549 of not less two than and a half nor more than five years in the State Correctional Institute.
Now, Cottle, Mr. have you appellate rights certain the sentence that was and I just imposed you, would like to read these .... [etc.].
N.T. This statement did not Riggins Kostka. with comply sure, To be appellant’s it stated a reason for revoking probation : “because of his report refusal to and cooper- ate with the efforts of the Department.” Probation How- ever, made, that decision next had decide sentence. The appellant’s only statement shows that he sentence; decided on longest possible no reason for that decision is given.
Neither did the to this opinion any court state reason for the sentence. as opinion reads follows:
On September Cottle 1969 Ernest appeared Levin Philadelphia Herbert Court Com- mon Pleas pled charges Aggravated guilty Robbery and Larceny Receiving Motor Vehicle and *5 90 Receiving Stolen Larceny Goods. On
Stolen
probation
he was
on five
charges,
placed
years
Goods
sentence on the Robbery
of the
expiration
at the
begin
25,
being
January
from
probationary period
charge,
25,1976.
period,
During
probationary
1971 January
Larce-
charges Burglary,
the defendant was arrested
and Violation
Uniform
Goods
ny, Receiving Stolen
separate
for three
appear
He failed to
Firearms Act.
his whereabouts
charges, and
hearings
trials and
on these
or Probation
in the Courts
unknown to anyone
were
6,
his arrest on a
1972 until
September
Department
Bills of Indict-
13, 1976. The
Warrant on March
Bench
three separate
which resulted
charges,
ments on the
either nolle
period,
probationary
arrests
of 1976.
April
or dismissed
prossed
Levin no
(Judge
this Court
appeared
Defendant
Bench)
Gagnon
hearing
for a
on the
longer being
22,
on June
hearing
II
Gagnon
June
1976 and
this court found that defendant
hearing,
At the
II
on the
probation
Levin’s sentence
had violated
revoked that probation
Receiving charges,
Larceny
to 5 years
of 2V2
a sentence of incarceration
and imposed
which
upon
the violation
Specifically,
on the defendant.
his failure to
was revoked was
defendant’s
Department
Probation
with the
report
cooperate
to or
year period.
a four
approximately
refuses,
fails,
to state the
When
sentence,
must be vacated
the sentence
reasons for the
v.
Commonwealth
resentencing.
the case remanded
Com
Riggins, supra;
Kostka,
Commonwealth
supra;
Wertz,
(1978).
Pa.Super.
monwealth v.
-2-
this court
appeal
that on appropriate
It is
settled
also
to vacate a sen-
responsibility
have the
Supreme
Court
to consti-
excessive as
manifestly
tence determined to be so
Martin,
tute too severe a
punishment.
Indeed, one reason for
A.2d 650
requiring
to state
the reasons for the
sentence is to enable the
discharge
this responsibility.
*6
Commonwealth v. Riggins, supra,
131,
In making this decision the appellate court must always ask at least two questions: First, did the sentencing judge consider the circumstances of the offense and character of the offender? Martin, supra. Commonwealth v. And second, did the sentencing judge comply with the Sentencing Code, 18 Pa.C.S.A. 1301 et seq. (Supp.1977)? The Code §§ provides sentences, possible for five be which comb ined,1 specific criteria which the by is from among choose these five. The must appellate court ask whether sentencing judge’s choice sentence was guided these by criteria. v. Riggins, Commonwealth supra.2
Here, the record demonstrates that the sentencing judge gave no consideration to the circumstances the offense. Appellant pleaded LEVIN, guilty Judge who is now retired. The sentencing judge therefore did not himself have any knowledge of the circumstances of the offense. The sentencing judge 4, was told that on 1969, September appellant appeared LEVIN, before Judge pleaded guilty to charges of aggravated robbery, of a larceny motor vehicle 1322; probation, 1. guilt Order § determination of without further penalty, 1323; confinement, 1324; partial confinement, § § total 1325; fine, § 1326. § appellate as, In some questions, cases the court must ask additional example, sentencing judge whether considered inaccurate or impermissible information, generally Phelps, see Commonwealth (1973) (defendant 301 A.2d 678 counsel entitled presentence investigation report); to examine and see Common- Smith, Super. (1977) (consider- wealth v. Pa. 250 ing sentencing judge whether could consider statement that defend- drug dealer), disparity ant was or whether an excessive sentence occurred, Thurmond, has Pa.Super. 257 A.2d 1330 and receiving goods; stolen and that LEVIN sen appellant tenced to serve six to three months for the twenty 25, 1971, this sentence robbery, expire to be January followed five years probation and receiv by larceny However, stolen all the could ing goods. information, learn from this so far as the circumstances of concerned, was that whatever the circum offense were, Judge opinion stances must have been LEVIN’S were such mild they relatively as to dictate sentence.3 of appellant’s There was some evidence character. This received, however, was all I and Gagnon II hearings; as from the statement the sentenc- appears there in fact no ing judge, quoted page supra, sentenc- all, at instead ing hearing proceeding at once from *7 the decision to to the of probation imposition revoke sen- tence.
This
shortcut is of critical
At a
procedural
importance.
II
Gagnon
hearing,
hearing judge must decide whether
probation
proved
has
to be an “effective vehicle.” Com-
Kates,
(1973);
monwealth v.
Of these three are particularly pertinent. The Code provides in 1371(c),that: §
The court impose shall not a sentence of total confinement *8 upon revocation unless it finds that:
(1) the defendant has been crime; convicted of another (2) the conduct of the defendant indicates that it is likely that he will commit another crime is he not imprisoned; or noted, however, It must be hearing judge that in fact the made no finding; only such he said: “I find he has violated the terms and probation imposed by conditions Judge of the LEVIN. I will there- re-impose fore prison revoke that a sentence .... judge’s statement, quoted See page supra. [etc.].” the authori- is essential to vindicate
(3) such a sentence of the court. ty added.)
(Emphasis discloses, has not been appellant record far as the So sentencing judge Perhaps the of crime. convicted another crime commit another likely believed that appellant effect; no to that finding but he made unless imprisoned, crime for several to commit a failure appellant’s moreover such argue against would employment, and his gainful years therefore, a criteria, support do not first two finding. The sentence of total confinement. sug- criterion: The record does the third
With respect sentence of believed that a sentencing judge that the gest authority was essential to vindicate confinement total I said: Thus, Gagnon hearing, the court. at the he for four correctly, this situation But if I understand charges, variety in court for a up did not show years know, but dropped. were don’t they whatever reasons exist, not no but he did longer they dropped, they for four years. with the Probation Officer cooperate that to the sentence Now, if that is not an insult is. I don’t know what imposed, LEVIN N.T. 9. still, statement, light why it sheds no
If one accepts confinement for 2h a sentence of total decided The required. longest possible period 5 years —was —the supra, is Riggins, in Commonwealth holding of the essence such a sentence with may impose sentencing judge that no explanation. out
-3- judgment that plain it is foregoing From and the case remanded should be vacated sentence is whether the remaining question only resentencing. Several sentencing judge. to the same remand should be judge. to a different it should be suggest reasons In the first the connection place, mentioned, appel- As has been to the case was accidental. before, by, sentenced initially and was pleaded guilty lant *9 LEVIN, rule, who is usual Judge Accordingly, retired. by that should be before whom imposed judge sentence tried, is pleads inapplicable. or is defendant sometimes, In when a place, proceeding gets the second has, foot, off on the as it is on remand wrong this one better fresh, nothing to start before a who has had to do Here, with the the conclusion that a fresh start should case. be which part made derives manner in sentencing proceedings, conducted the particular failure sentencing hearing to hold or to offer any any however, explanation of his sentence. In further part, conclusion derives from a remarkable of the quite aspect record, mentioned, has far been which so not but which requires thoughtful the most consideration. 25, 1969,
On one Mike Matthew Holmes was February sentenced Judge (now NIX) NIX Mr. Justice by a committed on a robbery trolley; SEPTA the sentence was eleven and a half to three months in to twenty prison, be followed at years probation. five the sen- Apparently, tencing, appellant stepped up having and confessed to been up involved in the also to that he had robbery, point not been That implicated. appears this occurred from the tran- script of appellant’s proceeding Judge Then, LEVIN. the assistant district told Judge attorney LEVIN: time,
At that stepped up defendant and stated he wanted say something. Judge NIX advised him not to say but he anything, say wanted something.
He was taken the District Attorney’s office. Detec- tive Hahn interviewed him. The victim still cannot identi- fy defendant. Honor, I ask would for a
Normally, your more stringent sentence, pled but since he came in and I would ask guilty, for a twenty-three sentence of six to months. NIX said he anything this, never like experienced as lawyer and as a Judge. suspect
One that few very indeed lawyers judges here, have had an It is experience. surprising such nor probation department representative neither the *10 to the of the case aspect mentioned this counsel appellant's was no is there explanation sentencing judge; perhaps irrele- might evidence have seemed hearing; sentencing case, the of the hearing. transcript In Gagnon any vant to a record, pre- is in the Judge LEVIN proceeding before judge. before the sumably was depart- Furthermore, representative probation appel- that to the ment did recommend appellant discharged. lant’s be terminated probation Gagnon first at the hear- This made recommendation it, with difficulty” that he had “some stated ing. than for that other asked, you reason do have “What load?”, that going say case on to heavy have a may you years office for four report to to your failure “[appellant’s] any without probation, a violation of that seems to me to be At the not N.T. 11-12. appear.” he did explanation why repre- between the hearing following colloquy II oc- and the department of the probation sentative curred: recalls, 2nd Your Honor asked
As Your Honor on June reasons for termination. my be with specific me to more recommending. THE For COURT: Your recommending For termination. MR. WHITE: Honor, I read— reasons? What are Certainly. your
THE COURT: were no Honor, at the time there MR. Your WHITE: stemming from violations, there were no convictions direct The expiration his during period probation. an arrest hearing. The we had our violation date had when passed of nine for a total been incarcerated defendant had They probation period. his days during months and 1972; 12th, from January to from 12/18/71 periods ’72; 13, 1976, from March 3, ’72, August March stem from either incarcerations present date. These to the Probation report his arrest or from his failure all of his arrests probation Department. While drinking problem. stemmed from He stated 1971 and he was drinking two or of whiskey day. Although three-fifths he every August had not from ’72 reported until his 13th, 1976, had, fact, arrest he as a violator March stopped and had become as drinking gainfully employed mechanic. have This would been the plan had he been reporting.
THE COURT: Is that reason? your MR. Those are my WHITE: reasons.
N.T. 23-24.5
Thus the record indicates mitigating an initial circum- sort, stance striking subsequent most conduct leading to probation department’s recommendation of *11 discharge. When one considers the sentence imposed, and imposition, manner of light record, its conclusion is inescapable that on a fresh remand start should be made.
The judgment vacated, of sentence should be and the case remanded for resentencing before another judge. Pennsylvania
COMMONWEALTHof ex rel. Renee LITTMAN, Appellant, Leslie R. LITTMAN.
Superior Court of Pennsylvania.
Argued Sept. 1977.
Decided Nov. 1978. Later appellant’s employ- witness said that he had “verified” asked, hearing, ment. N.T. know you 35. At the when “Do [appellant] problem?” whether has solved his alcoholic he had answered, “No, I don’t.” N.T. 13.