DocketNumber: No. 326
Citation Numbers: 393 Pa. Super. 181, 573 A.2d 1147
Judges: Cavanaugh, Files, Kelly, Wieand
Filed Date: 5/9/1990
Status: Precedential
Modified Date: 2/18/2022
Charles W. Shields, Jr. entered a plea of guilty to possession of a small amount of marijuana. At sentencing, he requested that he be placed on probation without verdict, as permitted by Section 17 of the Controlled Substance, Drug, Device and Cosmetic Act of April 14, 1972, P.L.233, as amended, 35 P.S. § 780-117.
Appellant did not have a right to be placed on probation without verdict. Whether to grant his request for probation without verdict was discretionary with the trial court. Commonwealth v. Rocco, 362 Pa.Super. 259, 523 A.2d 1181 (1987). It follows that a trial court’s denial of a petition for probation without verdict will not be reversed on appeal unless there has been an abuse of discretion.
The term “discretion” imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion, and discretionary power can only exist within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied, or where the record shows that the action taken is a result of partiality, prejudice, bias or ill will.
28 P.L.E. New Trial § 1.
We are constrained to conclude that it was an abuse of discretion for the trial court to deny appellant’s request for
Because the trial court abused its discretion, we will remand for resentencing. We do not thereby imply that appellant’s request for probation without verdict should be granted. We hold only that probation without verdict may not be denied merely because appellant filed a pre-trial motion to suppress evidence. In determining whether appellant should be granted probation without verdict or should be otherwise sentenced, the trial court must take into consideration the pre-sentence investigation which it ordered and all those factors which are relevant in determining an appropriate sentence for a person with appellant’s attributes and history who has committed the offense of possessing a small amount of marijuana under the circumstances present in this case.
. Probation without verdict had been recommended by the probation officer who made a pre-sentence investigation for the court.
. The record confirms that the trial court denied probation without verdict because the defendant had filed a motion to suppress evidence, which required a hearing.
. In view of the proportions of the current drug epidemic and the societal consequences thereof, the reader can decide for himself or herself whether the legislative provision for probation without verdict is a realistic approach to a serious problem.