*3 SPAETH, CAVANAUGH, Before HESTER and JJ. CAVANAUGH, Judge: 23, 1978,
On March entered a appellant guilty plea to a theft, charge retail on based the theft of a coat valued at from Strawbridge store, $275.00 & Clothier located at Plymouth Meeting, Pennsylvania. Appellant was on placed years probation three conditioned on the successful comple- tion of a drug program. rehabilitation On May appellant in-patient was ordered to undergo treatment at House, Philadelphia, Gaudenzia Pennsylvania, pro- which vides a program of for persons treatment suffering from drug problems. Appellant related Gaudenzia entered House and did weeks, he from the house within two absconded
and was probation, appellant on being placed not return. After of the crime of Pennsylvania, Philadelphia, convicted in obstruction of the mail. J., Smiley, was hearing held before probation
A revocation following on placed appellant probation who had judge proba- retail At the charge his to the theft. guilty plea Judge Smiley which characterized hearing, tion revocation he admitted that had Gagnon hearing, appellant as a II Appellant hearing his also stated at the violated probation. and that permission left House without he Gaudenzia back, he refused to would have taken him although they reason for fact gave leaving his Appellant return. of the get along department. he did not with the head as other He also he was not treated the same felt that complaint His was that only specific in the people program. he he was to be “walking privileges” supposed when had him, with being he wanted without go anyone able where or else would be department but the head of someone However, did appellant him him. not supervise with his alleged problems to his officer about complain probation at House. Gaudenzia hearing
Following probation appellant revocation not eighteen for less than imprisonment sentenced to judg- It is from this months, nor more than three years. an to this appeal has filed ment of sentence that Court. sentence is appeal
The sole whether the not his reasons Although judge the trial did state excessive. *4 sentence, he imposed for when he did appellant sentencing so the of in this case. opinion in filed record 6, on
Following September the of sentence imposition filed for of a Petition Reconsideration Sen- appellant reconsideration, He for but did tence. listed several reasons did not raise as an issue the fact that the court below not for sentence. state at the of the reasons the sentencing time court, the of involved question On to this statement appeal imposed unduly the was simply was “Whether sentence circumstance of the defend- harsh and excessive under the contends, ant’s case.” For the first time now appellant in part, that the sentence was excessive because there is “no in the in imposing indication record that sentence the court the any statutory sentencing guidelines, considered of of the absence reasons or by any explanation evidenced at Brief, the time of sentencing.” (Appellant’s 5). page Ap- pellant support also cites other reasons his contention that excessive, the such as his sentence adverse relationship with director of the treatment at Gaudenzia the and fact that he had a good employment record. has waived
Appellant
objection
the failure of
any
the
below
court
to state its reasons for the
at
sentence
the
sentence,
time of imposing the
as this issue was not raised at
sentencing
appellant’s
or in
Petition for Reconsideration of
Morris,
the
sentence. Our court stated in Commonwealth v.
273 Pa.Super.
There is no doubt that
the court below erred in failing to
set forth its reasons for the
at
imposition
the
required
sentence. This is
by Pa.R.Crim.P. 1405.1 See also
Young,
Com. v.
272 Pa.Super.
(1979)
Appellant did not raise in the court below has and not raised appeal compliance the issue of lack of with Pa.Crim.P. 1405. *5 516 instant is not the case the
for review. Such appellate preserved to be properly issues are matter. “We insist that of review, disposition a correct both to assure appellate for Benson v. Penn judicial resources.” the merits and conserve Co., 395 Central Transportation 463 Pa. 342 A.2d (1975). the of exces preserved issue has
Appellant properly the sentence not of and we find siveness It of this case. is now circumstances excessive under the give rea court must fundamental Com. v. Pa. Riggins, 474 imposes. sentence it sons for the Wertz, v. (1977); Com. 252 149 (1978). opinion 935 In his 584, 585, 384 A.2d Pa.Super. the court below stated: probation on are of defendant's release
When the terms a im violated, be revoked and sentence probation may 1371: conviction. 18 Pa.C.S. Section posed original A.2d Preininger, Commonwealth Pa.Super. [326 hand, completion successful In the case at 612] for continued prerequisite was a Program Gaudenzia two only left after Defendant Gaudenzia probation. of the treatment weeks, drug long completion before program. advantage opportunity
Defendant has failed to take and correct his drug him to his addiction given overcome to a institution. penal commitment behavior without to defendant to willing allow though Even Gaudenzia go back. he refused to drug program, return to the subjected discriminatory he was Defendant contends while Gau- privileges of his at treatment in the exercise however, Defendant, absconding. denzia his reason for concern- no his Probation Officer attempt notify mi .e left, he no attempt when he made ing any and problems, There now to be appears his to contact Probation Officer. no out which can be most drying process, alternative but a ain correctional insti- provided by confinement effectively tution. respect sentence,
With to the harshness of the from the *6 colloquy on defendant’s guilty plea it is clear that defend- ant fully appreciated that up he could serve to five years in prison for his crime.
“THE Well, COURT: you you know could get two and a
half to years five on that retail theft. Do you under- stand that?
“THE WITNESS: Yes. “THE COURT: Plus a ten thousand dollar fine. Do you
understand that? Yes, “THE WITNESS: sir.” In view of the case, circumstances of the defendant’s sentence is not excessive. legislative The directive is that the sentence imposed should be 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. 18 Com 1321(b); Pa.C.S. Section Valentin, monwealth v. Pa.Super. 393 A.2d [259 935] supra. long As defendant addicted to drugs, there is a substantial risk that he will commit another offense. Any sentence less than imposed that would have tended to depreciate the seriousness of the offense committed. Having once given been opportunity receive his needed treatment via a therapeutic modality and such course of failed, action having the best source of aid for defendant is available through commitment to a correc tional institution.
We must in mind keep the court below did not sentence appellant to confinement in the first instance. It was only probation after proved unsuccessful the court imposed confinement. The sentencing judge has the respon of sibility evaluating information regarding the circumstanc es of the offense and the character of the appellant and then must formulate and explain the sentence in of light guidelines specified in the Sentencing Code. Commonwealth v. Doyle, 275 Pa.Super. 418 A.2d (1979). 1336 We are with the complied court below in this case that the
satisfied reasons for impos The its Sentencing giving Code. court Sentencing referred to the of confinement ing a sentence court’s state not been held that although Code it has lan cite or include the specifically ment must of reasons Wicks, 265 v. code. Commonwealth guage 1223, 1227 (1979). Imposition 401 A.2d Pa.Super. is a matter Sentencing under the Code a proper the trial court. The determi within the sound discretion of unless there is a upset nation will not be of the court Knight, manifest abuse of discretion. Commonwealth Pa. the crime of which
The maximum sentence for two and one-half *7 was from imprisonment convicted ten thousand dollars. The up five and a fine of to years and the court below sentence in this case was not excessive in guidelines imposing the properly legislative considered sentence.
Order affirmed.
SPAETH, J.,
concurring opinion.
files a
SPAETH,
concurring:
Judge,
affirmed,
should be
I
that the
of sentence
agree
judgment
for I
it
join
majority’s opinion,
regard
but I am unable to
the
272
Young,
Pa.Super.
with Commonwealth v.
inconsistent
(1979).
149 must state the (1977), sentencing judge held that the not, sentence, reasons for the and that if he did the sentence would be remanded for resentencing. vacated and the case Riggins The then arose whether could be satisfied stating opinion the reasons for the sentence an filed by held imposed. Young some time after the sentence had been sentencing judge satisfy no-that the the could only way for the sentence when the Riggins was to state the reasons sentence imposed. was case, to this because this case was on direct
Young applies
decided.
v.
appeal
Young
when
was
Cf. Commonwealth
(1980) (Riggins applies
Mitchell, 487 Pa.
A.2d 758
Com-
decided);
Riggins
direct
when
appeal
all cases on
Jefferson, 484 Pa.
(1979)
A.2d 971
monwealth v.
the sen-
(semble).
argued
if
had
appellant
Accordingly,
later,
or
by
at the time of
tencing judge, either
sentence,
the judge
the
for reconsideration of
petition
for the sentence
erred in
to state the reasons
failing
had
we should have been
when the
was imposed,
the case for
sentence and remand
obliged to vacate the
fact, however,
argue
did not so
In
resentencing.
not,
his
he did
he has waived
sentencing judge.
to the
Since
Clair,
to us. Commonwealth
458 Pa.
so to
right
argue
This our discussion of however, continues. Specifically, discussion majority’s the sentence was on to consider whether majority goes excessive, was not. The satis- majority and decides that it by considering fies itself the sentence was not excessive opinion as stated in the filed reasons for the sentence confers imposed. majority after the sentence was Thus regards opinion it as entitled legitimacy opinion: however, Young, opinion, as a to consideration. Under reasons, is not entitled to considera- belated statement tion; ignored. it have been should therefore *8 A.2d Pennsylvania
COMMONWEALTH of WHITING, Anthony Appellant.
Superior Pennsylvania. Court of Dec. 1977.
Submitted Filed June 1980.