Commonwealth v. Smith ( 1977 )

PER CURIAM:

On February 10, 1976, the appellant, Brian Smith, entered a plea of guilty to three counts of burglary.¹ Subsequently, the trial court imposed a sentence of two to four years in the county prison. This appeal followed.

Appellant’s sole contention is that, under the circumstances, the sentence was harsh and cruel. In support of this position appellant directs our attention to the following facts: (1) He is eighteen years of age and still in high school; (2) He has no prior adult record; (3) He has cooperated with the authorities; and (4) There was no violence involved in any of the burglaries.

It must be emphasized that appellant does not contend that the sentencing judge neglected to take into consideration the foregoing factors. See Commonwealth v. Kaminski, 244 Pa.Super. 388, 368 A.2d 776 (filed December 15, 1976). Indeed appellant neither alleges nor suggests that the judge failed to comply in any respect with the sentencing standards established in this Commonwealth.² Nor does appellant claim that the sentence exceeds the maximum statutory limit.³ Rather, it is simply appellant’s position that, in light of the previously mentioned circumstances, the sentence is cruel and harsh. For all intents and purposes, this is the identical argument we recently rejected in Commonwealth v. Kaminski, supra.

It is hornbook law that the imposition of sentence lies within the sole discretion of the sentencing judge. Commonwealth v. Williams, 456 Pa. 550, 317 A.2d 250 (1974). Furthermore, the broad discretion reposed in the sentencing judge will not be disturbed on appeal unless: (1) the sentence exceeds the statutorily prescribed limits; or (2) the sentence is manifestly excessive; or (3) the court’s discretion was not exercised “in accordance with the applicable statutory requirements.” Commonwealth v. Martin, supra, 351 A.2d at 658; See also Commonwealth v. Person, 450 Pa. 1, 297 A.2d 460 (1972); Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1971); Commonwealth v. Kaminski, supra.

Instantly, the sentence was well within the statutory limits. See note 3, supra. The mitigating factors to which appellant alludes do not establish that the sentence was “manifestly excessive.” See Commonwealth v. Williams, supra. “[W]hile the judge did impose a sentence that some might regard as ‘severe,’ defense counsel has not furnished us with a record warranting the conclusion that it was ‘too severe.’ ” Commonwealth v. Shoemaker, 226 Pa.Super. 203, 215, 313 A.2d 342, 348 (1973); See also Commonwealth v. Middleton, 242 Pa.Super. 421, 364 A.2d 342 (1976). Finally, appellant does not allege — let alone establish — that the sentencing judge failed to consider either his character or the circumstances surrounding the offenses. See Commonwealth v. Martin, supra. Accordingly, there is no basis for concluding that the lower court abused its discretion.

Judgment of sentence affirmed.

SPAETH, J., files a dissenting opinion in which HOFFMAN, J., joins.

1 . Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 3502 (1973).

2 . See, e. g., The “Sentencing Code,” Act of December 30, 1974, P.L. 1052, No. 345, § 1 et seq., 18 Pa.C.S. § 1301 et seq. (Supp. 1976-77); and Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976).

3 . Each count of burglary carries a potential maximum sentence of twenty years imprisonment. 18 Pa.C.S. § 1103(1) (1973).