Commonwealth v. Carter , 336 Pa. Super. 275 ( 1984 )

WIEAND, Judge:

Nathaniel Carter committed acts constituting violations of parole and probation. After hearing, his parole was revoked, and he was directed to serve the balance of a 23 month maximum sentence previously imposed for recklessly endangering another person. Carter’s probation was also revoked, and he was sentenced to serve a concurrent term of imprisonment of not less than nineteen months nor more than five years on a prior conviction for a firearms offense. Carter appealed. Although his appeal was filed from both orders, he has conceded the violations. His argument, therefore, is directed toward the new sentence of imprisonment imposed by the court. This sentence was imposed, he contends, without benefit of a pre-sentence investigation by a sentencing court which gave inadequate reasons for the sentence which it imposed. Because there is merit in this contention, the judgment of sentence imposed for the firearms offense will be vacated, and that matter will be remanded for resentencing.

The imposition of a sentence of imprisonment for the firearms offense was not accompanied by a statement of the court’s reasons for the sentence. Moreover, the sentence was not preceded by a pre-sentence investigation. Although defense counsel made a specific request for a pre-sentence investigation, the court denied his request. Appellant had previously been on probation and parole,¹ the court said, and it was “not going to waste the facilities of the probation department.” This is reflected by the following:

[THE COURT]: You have been around the courts too long to ask for a drug program now. You had all the essential elements working for you in order to get yourself a drug program. You had a probation officer that you could have asked for a drug program. You have had an extensive juvenile record. You have had a thread of violence throughout your career and you could not stay out of trouble when you were given probation and parole. All of these things don’t militate any hand wringing at this point for your rehabilitation. If you want rehabilitation, you rehabilitate yourself. It is about time the public stopped supporting you throughout this community and you start supporting yourself. If you want a drug program, you get one at Graterford. The nonsense stops here. This is the second Gagnon that I have had in these files from you and there is a new charge still pending, floating around. Irresponsible behavior does not necessitate any help at this point. You are the one that is taking it. You are the one that got yourself into this thing and you are the one that continually breaks the law. The soft soap about drugs getting you into trouble does not go very far with me at this point.

MR. WALSH: Your Honor, at this time I would request a pre-sentence investigation for my client before sentencing. I hear your statements right now, Your Honor, that you don’t feel a drug program is appropriate for the defendant. However, I feel that he should, be at least evaluated to give you alternative thinking. It is true that some of these charges— •

THE COURT: I am not going to waste the facilities of the probation department. He has been on probation and parole twice. He has been readmitted. I am not wasting my time at all with any pre-sentence investigation. He has run the scheme.

MR. WALSH: First of all, Your Honor, with regard to drug programs, some of them are much tougher than even Graterford.

THE COURT: He is not going into a drug program. He has finally made the big time.

MR. WALSH: You have stated that he has an extensive juvenile record and background. I have no knowledge of that past record. I only have knowledge of his prior adult record. I feel that with a pre-sentence investigation it will help to put on the record exactly what type of prior criminal record he does have.

THE COURT: I hear you, but I don’t hear you. —Go ahead. .

MR. WALSH: Your Honor, if you are going to sentence today, first of all note on the record that I have requested the pre-sentence investigation and note my exception.

Whether to dispense with a pre-sentence investigation rests primarily upon the exercise of a sound discretion by the trial court. Pa.R.Crim.P. 1403 A(1). The reasons for dispensing with a pre-sentence report, however, must be stated on the record and must be adequate to permit appellate review. Pa.R.Crim.P. 1403 A(2). “The first responsibility of the sentencing judge [is] to be sure that he ha[s] before him sufficient information to enable him to make a determination of the circumstances of the offense and the character of the defendant.” Commonwealth v. Doyle, 275 Pa.Super. 373, 381, 418 A.2d 1336, 1340 (1979). Accord: Commonwealth v. Young, 299 Pa.Super. 488, 491, 445 A.2d 1235, 1236 (1982). The responsibility is no less urgent where the defendant comes before the court as a probation violator. A sentencing court is not excused from this responsibility merely because the court desires to relieve the probation department from an additional assignment.

Each person sentenced must receive a sentence fashioned to his or her individual needs.

The constraints placed upon the trial court in the exercise of its [sentencing] discretion are that it must not overlook pertinent facts, disregard the force of the evidence, commit an error of law, or inflict punishment exceeding that prescribed by statute. The trial court must thoroughly examine the facts and circumstances of the crime and the background and character of the defendant, and should consult a pre-sentence report if one has been prepared, especially where, as here, incarceration for one year or more is a possible disposition. Likewise, the court should consider any information in the record bearing on degree of punishment.

Commonwealth v. Franklin, 301 Pa.Super. 17, 25-26, 446 A.2d 1313, 1317 (1982), quoting Commonwealth v. Knight, 479 Pa. 209, 212-213, 387 A.2d 1297, 1299 (1978) (citations omitted).

In the instant case the court did not explain its sentence except to say that it was rejecting appellant’s request that he be placed in a drug treatment program. Although the sentencing judge spoke generally of prior juvenile and adult records, the nature of appellant’s prior record does not appear. Indeed, even appellant’s counsel asserted a lack of knowledge of any juvenile record. Under these circumstances, and despite the broad discretion vested in the sentencing court, the court’s unconfirmed assertion of familiarity with appellant’s prior record does not constitute an adequate basis for dispensing with a pre-sentence investigation and imposing a sentence of imprisonment. Otherwise, the sentence becomes entirely subjective with the sentencing judge and does not permit of appellate review.

In Commonwealth v. Weldon, 287 Pa.Super. 533, 430 A.2d 1180 (1981), this Court held that “[t]he failure of [a] court to give reasons for dispensing with a presentence report especially considered with the failure to adequately state the reasons for sentencing and a consideration of the statutory guidelines for sentencing require that ... we vacate the sentence and remand for resentencing.” Id., 287 Pa.Superior Ct. at 538, 430 A.2d at 1182. Cf. Commonwealth v. Bryner, 285 Pa.Super. 305, 309 & n. 2, 427 A.2d 236, 237-238 & n. 2 (1981); Commonwealth v. Schwartz, 267 Pa.Super. 170, 173 n. 5, 406 A.2d 573, 574 n. 5 (1979).

So, too, in this case, the sentence imposed for the firearms offense must be vacated and the case remanded for resentencing. The order revoking parole, however, was proper and can be affirmed.²

It is so ordered. Jurisdiction is not retained.

CIRILLO, J., filed a dissenting opinion.

1 . The record does not disclose that a pre-sentence investigation had been made prior to the earlier sentences. These sentences had been imposed pursuant to a plea bargain and, apparently, without benefit of a pre-sentence investigation.

2 . The order revoking parole did not impose a new sentence; it required appellant, rather, to serve the balance of a valid sentence previously imposed.