Commonwealth v. Zimmerman , 262 Pa. Super. 50 ( 1978 )

VAN der VOORT, Judge:

On November 19, 1976, appellant Alan Lee Zimmerman entered pleas of guilty to charges of robbery and theft, in connection with incidents which occurred on June 15 (theft of a motorcycle), June 23 (theft of two motorcycles), and July 9, 1976 (armed robbery). The lower court accepted the pleas and ordered a pre-sentence report. Appellant was sentenced on February 4, 1977 to concurrent terms of one to three, one to three, and two and one-half to seven years imprisonment. Appellant brought this appeal to our court from the judgment of sentence, arguing that the lower court erred in not stating, on the record, reasons in support of the sentences which it imposed.¹

In Commonwealth v. Olsen, 247 Pa.Super. 513, 372 A.2d 1207, decided April 19, 1977, a majority of our court found that a trial court did not have to state reasons for the sentence which it imposed, particularly if reasons were not requested by the defendant at the time of sentencing. In a case decided four months later, Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), Justice Roberts stated in a plurality opinion for the Supreme Court that when a trial court imposes a judgment of sentence, the court’s reasons for imposing such sentence should appear on the record. Although the Supreme Court vacated the sentence and remanded the case for resentencing and for a statement of reasons for the sentence, it appeared from the notes of testimony of the sentencing hearing that the trial court might have been acting under a misapprehension as to the maximum permissible sentence, and apparently only three of the justices felt that the failure of the trial court to give reasons for the sentence, in and of itself, merited vacating the sentence. A majority of the court did join in a request to the Criminal Procedural Rules Committee for a recommendation on adding to the Rules of Criminal Procedure a requirement that a sentencing judge state on the record the reasons for the sentence. Rule 1405(b), which provides, “[a]t the time of sentencing, the judge shall: . (b) state on the record the reasons for the sentence imposed,” was the result of Riggins and the recommendation of the Rules Committee.

In the case before us, there is nothing in the record to indicate that the trial court acted under any misapprehension as to the permissible range of sentences, and, unlike the appellant in Riggins, appellant in the case before us makes no allegation of an excessive sentence. Appellant Zimmerman was sentenced prior to the decision in Riggins, and prior to the effective date of Rule 1405(b), and in these circumstances we fail to see how any useful purpose would be served by applying retroactively the requirement of an on-the-record statement of reasons for the sentence imposed.

We therefore affirm the judgment of sentence.

CERCONE, J., concurs in the result. SPAETH, J., files a concurring and dissenting opinion. JACOBS, P. J., files a dissenting statement. WATKINS, former President Judge and HOFFMAN, J., did not participate in the consideration or decision of this case.

1 . Appellant did not request of the lower court a statement of reasons for the sentence, nor did appellant file a petition with the lower court for reconsideration of sentence.