Commonwealth v. Mullen , 321 Pa. Super. 19 ( 1983 )

CERCONE, President Judge:

On May 11, 1981, appellant, Harry Mullen, entered a plea of guilty to the charge of incest.¹ A pre-sentence report was prepared and submitted to the lower court. At a sentencing hearing on July 16, 1981, appellant’s attorney summarized the contents of the pre-sentence report on the record. Immediately afterwards, the sentencing court entered the following order.

AND NOW, June 16, 1981, at 9:56 a.m., the defendant, Harry Mullen, having previously appeared before the Court and tendered a plea of guilty, and now appearing for sentence with the Public Defender, Taylor P. Andrews, Esquire, the Court being in receipt of a pre-sentence investigation report,

Sentence of the Court is that the defendant pay the costs of prosecution, undergo imprisonment in a State Institution for not less than one nor more than three years. The defendant to be given credit for fifty-nine days previously spent in the Cumberland County Prison.

The reason for the above sentence is that the Court believes that any lesser sentence would depreciate the seriousness of the offense.

The Court having been informed that there is a possibility that the defendant does wish to file the motions within the ten-day period, pending the filing of said motions, he is continued on existing bail.

Less than a month later, after appellant had filed a Motion for Reconsideration of Sentence, the sentencing court entered this order.

AND NOW, July 9, 1981, the court having considered the Motion for Reconsideration of Sentence* adds the following to the Order of Court dated June 1.6, 1981:

Prior to the imposition of sentence, the court did consider the alternatives and guidelines under the sentencing code and the facts of the incident as set forth at the time of entry of the guilty plea.

The main facts considered were as follows:

1) The defendant was thirty-six (36) years old and the niece was sixteen (16) years old at the time of the incident.

2) The incident took place on March 15, 1981, about seventeen (17) days after he was released from State Parole on a previous State sentence of one to three years which involved an Unlawful Delivery of Schedule II, Controlled Substance.

The Motion therefore to reconsider is refused.

Now, on appeal, appellant argues that his original sentence should be vacated and the case remanded because the trial court did not state at the time of sentencing sufficient reasons on the record for the sentence it imposed, and further, the reconsideration of sentence procedure, because it involved only the lower court’s entry of an order without the benefit of a supplemental proceeding on the record in the presence of appellant, could not correct the initial inadequate sentencing.²

The question for our disposition is whether an order containing reasons supplementing the sentencing transcript, entered pursuant to an appellant’s Motion for Modification of Sentence, Pa.R.Crim.P. 1410,³ will serve to satisfy the requirements of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and Pa.R.Crim.P. 1405(b)⁴ when defendant was not present at said reconsideration proceedings. We find that, because of the importance of having the defendant present when the judgment of sentence is pronounced against him, that the vacation of the judgment of sentence is warranted and that it should be remanded for resentencing.

No case specifically holds that the reasons be recorded during a sentencing hearing, and that they be made within the presence of the defendant. However, a review of Riggins and its progeny indicates such a requirement. In Riggins, our Supreme Court listed eight benefits to its requirement that the sentencing court place its reasons for the sentencing it imposes on the record at the time of sentencing. Among these were that

[i]t will minimize the risk of reliance upon inaccurate information contained in the presentence report____

and

[it] may aid correction authorities if the sentence results in a commitment, and may have therapeutic value if the judge explains his or her reasons to the defendant. Riggins, supra, 474 Pa. at 129-130, 377 A.2d at 147-148.

Thus, part of the significance of the requirement which the Court set forth in Riggins was that the defendant would be present at the time the reasons were enumerated. Our court addressed a similar question in Commonwealth v. Young, 272 Pa.Superior Ct. 82, 414 A.2d 679 (1979).⁵ There, although several reasons for the sentence appeared in the court’s opinion filed some time after the sentence, we held that the reasons must be given on the record at the time sentence is imposed, in order to comport with Commonwealth v. Riggins, supra, and Pa.R.Crim.P. 1405(b). There we said:

One compelling reason for Riggins’ requirement is that without a statement of reasons at the time of sentencing, the defendant lacks an opportunity at that time to bring to the court’s attention any erroneous facts or conclusions upon which it may have relied and is unable thereafter to file a petition for resentencing challenging the court’s reasons for imposing sentence. Young, supra, 272 Pa.Superior Ct. at 84, 414 A.2d at 681.

Additionally, in our Concurring Opinion to Young, we noted four major policy reasons of American Bar Association Standards, Appellate Review of Sentences, for the holding in Riggins.

First, the requirement will force the trial judge to focus on the exact issues involved and improve the rationality of the sentence imposed. Second, a statement of the reasons will be of value to the correctional institution to which defendant is committed. The statement can help the administration place a particular person in the proper program as far as possibilities for rehabilitation are concerned. Third, the statement of reasons may be therapeutic to the defendant. Although such a statement should not be bitter or berating, the defendant should be advised of why a judge has decided upon a certain course of conduct in his sentencing procedure. Fourth, a statement of reasons on the record is essential for our appellate review of the case. Id. § 2.3, Comment e, pp. 44-47 (1967), in Young, supra, 272 Pa.Superior Ct. at 86, 414 A.2d at 681-2.

Thus, confining our review of the lower court’s reasons for imposing sentence to those on the record at the Sentencing Hearing, we are left with the Court’s statement that “any lesser sentence would depreciate the seriousness of the offense.” While this is one of several considerations for the imposition of total confinement (42 Pa.C.S.A. § 9725),⁶ this court has previously held that upon imposing a sentencing of total confinement, rather than partial confinement, a sentencing judge may not merely state that a lesser sentence would depreciate the seriousness of the crime. Rather, the judge must state, with reference to the record, why he believed that would be so, for only then will the appellate court be able to ascertain whether the sentence imposed was based upon accurate, sufficient and proper information.⁷ Commonwealth v. Farrar, 271 Pa.Superior Ct. 434, 413 A.2d 1094 (1979).

Therefore, because the reason given for the lower court’s imposition of sentence does not comport with Commonwealth v. Riggins, we are constrained to vacate the judgment of sentence and remand for resentencing.

Judgment of sentence vacated and case remanded for resentencing. Jurisdiction relinquished.

WIEAND, J., files a dissenting opinion. CIRILLO, J., files a dissenting opinion in which WIE-AND, J., joined.

1 . 18 Pa.C.S.A. § 4302. In exchange for appellant’s plea, the charge of rape was nolle prossed.

2 . This appeal was certified by a panel of our court as involving a question of such importance as to merit consideration by the Court En Banc.

3 . A motion to modify sentence shall be in writing and shall be filed with the sentencing court within ten (10) days after imposition of sentence.

4 . At the time of sentencing, the judge shall ... state on the record the reasons for the sentence imposed.

5 . See also Commonwealth v. Giles, 303 Pa.Superior Ct. 187, 449 A.2d 641 (1982), Commonwealth v. Aldinger, 292 Pa.Superior Ct. 149, 436 A.2d 1196 (1981), Commonwealth v. Taylor, 290 Pa.Superior Ct. 362, 434 A.2d 794 (1981), and Commonwealth v. Cappiello, 284 Pa.Superior Ct. 476, 426 A.2d 146 (1981).

6 . The court shall impose a sentence of total confinement if, having regard to the nature and circumstances of the crime and the history, character and condition of the defendant, it is of the opinion that the total confinement of the defendant is necessary because:

(1) there is undue risk that during a period of probation or partial confinement that defendant will commit another crime;

(2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or

(3) a lesser sentence will depreciate the seriousness of the crime of the defendant.

7 . Thus, we are not able to address appellant’s contention that the sentencing judge abused its discretion in imposing a sentence that was excessive.