Commonwealth v. Carter

CIRILLO, Judge,

dissenting:

I respectfully dissent.

Appellant contends that the court erred in refusing to direct the preparation of a pre-sentence investigation report prior to sentencing. Further he asserts that the sentence imposed is harsh and excessive, and lacking substantiation on the record. I would find these contentions to be without merit and would affirm the judgment of sentence.

The record reveals that the trial court adequately complied with the provisions of Pa.R.Crim.P. 1403 in electing to dispense with the pre-sentence investigation and in stating *282its reasons for doing so. Rule 1403 provides in pertinent part:

(1) The sentencing Judge may, in his discretion order a pre-sentence investigation report in any case.
(2) The sentencing Judge shall place on the record his reasons for dispensing with the pre-sentence investigation report if the court fails to order a pre-sentence report in any of the following instances: (a) where incarceration for one year or more is a possible disposition under the applicable sentencing statute ...

It is the responsibility of the sentencing judge to have before him sufficient information to enable him to determine the character of the defendant and the nature of the offense. Commonwealth v. Doyle, 275 Pa.Super. 373, 418 A.2d 1336 (1979). The majority’s bare assertion that: “The responsibility is no less urgent where the defendant comes before the court as a probation violator. A sentencing court is not excused from the responsibility merely because the court desires to relieve the probation department from an additional assignment,” ignores what actually occurred in the case at bar.

Judge Salus was fully apprised of the circumstances attendant to the appellant’s case, after having conducted extensive colloquies in October, 1981, and in March, 1983. The judge was impressed with the failure of the appellant to abide by the terms of his probation and parole, his failure to obtain employment, his continuing use of drugs, and his initial refusal to participate in a rehabilitative drug program. Noting both that the appellant had a thorough understanding of the criminal proceedings, and that any further investigation would serve only to waste the facilities of the probation department, Judge Salus denied the appellant’s request for a pre-sentence report and sentence was imposed thereafter.

Moreover, I would also find without merit, appellant’s contention that the court failed to articulate its reasons on *283the record and thereby imposed a manifestly harsh and excessive sentence.

It is well settled that Pennsylvania trial judges are vested with broad sentencing discretion with which the appellate courts will not interfere absent manifest abuse. Commonwealth v. Black, 321 Pa.Super. 44, 467 A.2d 884 (1983). To facilitate meaningful appellate review and to insure that discretion has been exercised, the sentencing court must state on the record its reasons for the sentence imposed. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). Commonwealth v. Mead, 300 Pa.Super. 510, 446 A.2d 971 (1982). The crucial function of Riggins is to preserve the legitimacy of the sentencing process. Cf. Commonwealth v. Puchalski, 310 Pa.Super. 199, 456 A.2d 569 (1983). The requirement of setting forth a statement of reasons allows us to discern the sentencing judge’s thought process. Commonwealth v. O’Brien, 282 Pa.Super. 193, 422 A.2d 894 (1980). While the court need not enumerate the factors of the Sentencing Code, 42 Pa.C.S. § 9721 et seq., there must be a sufficient statement to indicate that the court did consider them. See e.g., Commonwealth v. Wareham, 259 Pa.Super. 527, 393 A.2d 951 (1978).

Although Judge Salus did not proceed seriatim, the record amply demonstrates that he considered the specified factors of the Sentencing Code. The appellant had originally received a light term of imprisonment with a subsequent parole and a term of probation to afford him an opportunity to pursue rehabilitation. These minimal restrictions had not been effective, and accordingly, Judge Salus felt obligated to impose total confinement. The sentence imposed comports with the general principle of the Sentencing Code, “that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.”- 42 Pa.C.S. § 9721(b). In short, we know why appellant is now behind bars.

Accordingly, I would affirm the judgment of sentence.