Commonwealth v. Mullen

WIEAND, Judge,

dissenting:

I agree with the majority that perfect compliance with the mandates of Commonwealth v. Riggins, 474 Pa. 115, 377 *26A.2d 140 (1977) and Pa.R.Crim.P. 1405(b) can be achieved if the sentencing court will place a full statement of the reasons for its sentence on the record at the time when sentence is pronounced. However, sentencing proceedings are not concluded irrevocably when sentence is initially imposed; they continue even through appellate review. Commonwealth v. Anderson, 304 Pa.Super. 476, 482, 450 A.2d 1011, 1014 (1982). Thus, Pa.R.Crim.P. 1410 provides for a written motion to modify sentence and is intended to provide the sentencing court with an opportunity to correct mistakes in its orders prior to review by an appellate court. The means by which errors can be corrected by the sentencing court have not been rigidly limited or narrowly defined by substantive or procedural rule of law.

In the instant case, the sentencing judge, who had accepted a negotiated plea of guilty to incest, while a charge of rape was nolle prossed, said that a sentence of imprisonment was necessary because “any lesser sentence would depreciate the seriousness of the offense.” The defendant filed a motion to modify the sentence in which he alleged that the court’s sentence was excessive and its reasons therefor inadequate. The trial court dismissed the post-sentencing motion, explaining that it had also considered, in determining the sentence, those alternatives and guidelines set forth in the sentencing code, including the age of the defendant and the youth of his niece-victim and also the fact that the offense had occurred “about seventeen (17) days after [defendant] was released from State Parole on a previous State sentence____” These facts have not been disputed by the defendant.

The majority holds that the additional reasons cited in the court’s order may not be considered during appellate review because they were not recited in appellant’s presence. Therefore, the majority remands so that the court may repeat its recorded reasons in appellant’s presence. After the sentencing court has done so, the majority implies, a second appeal may be filed in which this Court will then review the sentence imposed. In my opinion, the additional *27procedural step imposed by the majority is unnecessary in this case and attaches to Pa.R.Crim.P. 1405(b) a rigidity which exalts form over substance.

It may be, as the majority suggests, that there will be occasions when the facts relied upon by the sentencing court will be erroneous and when an appellant must be given an opportunity to correct or refute them. This is not such a case. Appellant’s concern in this case is not with the accuracy of the sentencing court’s reasons. His concern, rather, is that the court imposed a sentence of imprisonment, and he seeks to have that sentence reviewed and, hopefully, reversed. The sentencing court’s reasons for the sentence are now on the record; their accuracy is not in dispute. They are not only sufficient to achieve the goals enumerated by Riggins and by the American Bar Association Standards, but, most importantly, they are sufficient to permit appellate review of the sentence imposed. Therefore, I would conduct the sentencing review which appellant has asked us to make. Because I believe the majority’s remand serves only to delay unnecessarily an appellate review of the sentence, I must respectfully dissent.

The sentence imposed, in my judgment, was fully warranted by the facts and serious nature of the crime committed by appellant and also by his prior criminal record. Because I am unable to find any abuse of the trial court’s discretion, I would affirm the judgment of sentence.