Commonwealth v. MartinCommonwealth v. Martin
- Reporters:
- , ,
- Before:
- Hester
On January 21, 1982, appellant pleaded guilty to attempted rape 1 and criminal conspiracy 2 arising out of an incident that occurred on September 26, 1981. Appellant also pleaded guilty to rape 3 and conspiracy 4 from a separate incident that occurred on November 28, 1981, while appellant was free on bail from his earlier offense. Appellant was sentenced to a five-to-ten year term of incarceration. On this direct appeal, appellant contends that the sentence imposed was manifestly excessive and that the trial judge abused his discretion by improperly considering proposed sentencing guidelines prior to their effective date of operation. We find no merit in appellant’s contentions and, accordingly, affirm the judgment of sentence on criminal information 2271 for rape and conspiracy and on criminal information 2345 for attempted rape.
Appellant was originally sentenced on January 21, 1982 on the rape charge to pay a fine of $10.00 and the costs of prosecution and to undergo a term of imprisonment of not less than five nor more than ten years. On the accompanying conspiracy charge, appellant was sentenced to not less than three nor more than ten years to be served concurrent
On March 5, 1982, appellant filed a notice of appeal to this Court from the judgment of sentence. The Commonwealth argues that this appeal should be dismissed because appellant appealed from the judgment of sentence imposed February 5, 1982 which had been vacated by the order of March 4, 1982 pursuant to the trial court’s second resentencing of appellant. Appellant’s brief sets forth the order appealed as that entitled “Vacation of Sentence and Amended Sentencing”, dated March 4, 1982. The arguments contained in appellant’s brief refer to the five to ten year term of imprisonment imposed on March 4, 1982. It is implicit in Pennsylvania Rule of Appellate Procedure 904, which governs the content of the notice of appeal, that the correct
As was stated previously, on criminal information 2271, appellant received concurrent sentences of three to six years for rape and conspiracy arising out of the November 28, 1981 incident. Consecutive to this sentence, on criminal information 2345, appellant received concurrent sentences of two to four years for attempted rape and conspiracy arising out of the September 26, 1981 incident. Section 906 of the Crimes Code,
Appellant’s sentence totals five to ten years of incarceration. Appellant could have received a maximum term of imprisonment of twenty years for rape, ten years for conspiracy to commit rape, and ten years for attempted rape. Since the sentence is clearly within statutory limits, appellant must convince us that the sentences were manifestly excessive so as to constitute an abuse of discretion by the sentencing court.
Commonwealth v. Gaus,
300 Pa.Super. 372, 446 A.2d 661 (1982). Appellant argues that the sentence of five to ten years of imprisonment was manifestly excessive because he has a personality disorder with anti-social tendencies that would best be treated in a controlled, residential institution where he could receive intensive psychotherapy. In support of his argument, appellant points to the fact that “[njeither of his victims sustained any permanent physical damage and, aside from pulling the rape victim into the car and knocking the attempted victim to the ground, the only physically assultive [sic] behavior associated with the rape was punching and spitting upon the attempted rape victim whom appellant had probed with his fingers.” (Brief for Appellant at p. 9.) Appellant also
We have reviewed thoroughly the record in this case and find that appellant’s arguments are totally lacking in merit. The sentencing court ordered that the sentence as imposed would indicate to the State Bureau of Corrections that psychiatric therapy would be provided. The court below also stated on the record that, although it would consider the proposed sentencing guidelines, it did not agree to be bound by them and may, indeed, depart from them.
For the above-stated reasons, we vacate judgment of sentence for the criminal conspiracy charge arising out of the attempted rape incident. Judgment of sentence is affirmed as to the remaining convictions.