Com. v. Arent

• Decision Date: 28 April 1986
• Citation: 508 A.2d 596,352 Pa.Super. 520
• Parties: COMMONWEALTH of Pennsylvania v. Stanley Walter ARENT, Appellant.
• Court: Pennsylvania Superior Court

Page 596

508 A.2d 596

352 Pa.Super. 520

COMMONWEALTH of Pennsylvania v. Stanley Walter ARENT, Appellant.

Superior Court of Pennsylvania.

Argued Feb. 26, 1986.

Filed April 28, 1986.

Charles A. Rector, Lemoyne, for appellant.

Andrea F. McKenna, Deputy Atty. Gen., Harrisburg, for Commonwealth, appellee.

Before CAVANAUGH, TAMILIA and CERCONE, JJ.

CERCONE, Judge:

Appellant, Stanley Walter Arent, pleaded guilty to eight counts of failure to file sales tax returns from April, 1983, through November, 1983, and to sixteen counts of failure to remit sales tax from August, 1982, through November, 1983. 72 P.S. § 7268(b). Appellant was the proprietor of a beer distributorship in Hillsville, Lawrence County, Pennsylvania, and it was the returns owing from the operation of this business that gave rise to the charges. On April 23, 1985, appellant was sentenced to a total of two to eight years incarceration and was ordered to make restitution of approximately $95,000.00, which is the tax liability incurred absent fines and penalties. Appellant filed a timely Motion to Modify Sentence which was denied.

In this appeal, it is alleged by appellant that the lower court failed to state adequate reasons for its sentence on the record and that the sentence which was imposed was excessive as too severe a punishment. We agree and remand for resentencing.

In reviewing a sentence we must accord a great deal of discretion to the sentencing court. Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). A sentence will not generally be disturbed absent an abuse of discretion on the part of the sentencing court. However, our careful consideration of the sentencing guidelines in light of the circumstances of this case convinces us that the sentence of incarceration of from two to eight years was an excessively harsh and manifestly excessive sentence and that the court failed to state adequate reasons for the sentence on the record.

The section of the Tax Reform Code under which appellant was prosecuted, 72 P.S. § 7268(b), provides that each count of failure to file sales tax returns and failure to remit sales tax is a misdemeanor, conviction of which could result, inter alia, in imprisonment of up to one year. Appellant was sentenced on each of the first eight counts to a three to twelve month period of imprisonment, totalling two to eight years. For the second sixteen counts, he was sentenced on each count to one to six months imprisonment to run concurrently with the prior sentence. Therefore, the sentence imposed was clearly within the statutory limits. Although none of the individual sentences imposed here is in excess of the statutory maximum, we find the cumulative sentence to be so excessive as to inflict too severe a punishment.

In the exercise of its discretion,

[t]he court must consider the character of the defendant and the particular circumstances of the offense in light of the legislative guidelines for sentencing, and must impose a sentence, that is the minimum sentence, consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. Commonwealth v. Wicks, 265 Pa.Superior Ct. 305, 310, 401 A.2d 1223, 1225 (1979).

At the guilty plea proceeding, the Deputy Attorney General requested that a pre-sentence report be prepared. The court so ordered. Although this report is not included in the record, the court indicated in its opinion that it rejected the report because it "consists of the defendant's version of why he could not pay the funds when due, and that he was a victim of circumstances." It is axiomatic that a sentencing court is not bound by a pre-sentence report. Commonwealth v. Vernille, 275 Pa.Superior Ct. 263, 418 A.2d 713 (1980). However, the sentencing court is required to consider the history, character and condition of the defendant and not only the nature and circumstances of the crime in imposing a sentence of total confinement on a defendant. 42 Pa.C.S.A. § 9725. This the court did not do. Moreover, our review of this case persuades us that the court, in imposing a sentence of imprisonment, did not follow the general principle 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.A. § 9721(b).

The unrefuted information regarding appellant's background that appears of record is that appellant was twenty-nine years old at the time of sentencing, that he graduated from high school and completed one year of college. He was also in the process of accumulating extra credits toward his degree. He had a work history, including employment with a paving company at the time of sentencing. In 1979, appellant inherited the beer distributorship and by January of 1980 had already begun to be in tax arrears. Then, in 1983, the Internal Revenue Service closed the beer distributorship, seized and liquidated the assets, and did so at a fraction of the market value. Thus, from 1983, appellant has not owned the business which gave rise to these charges, and whereby at one point, he had monthly sales of $100,000. Appellant has no prior criminal record and is an active church member. Drexel Ackles, who prepared the presentence report in this case testified at the sentencing hearing and recommended a community-based alternative to incarceration consisting of employment, completion of appellant's college degree, restitution payments, community service and a probationary period.

The court rejected this and all aspects of the pre-sentence report as depreciating the seriousness of the crime of the defendant.

THE COURT: This is inconceivable a person would be engaged in a business the volume of which you operated and not be aware that you were incurring very substantial obligations to the sale tax division in light of the fact that you are collecting on your sales amounts that is due and owing them. I don't know how you can be in business and not be aware of that and if you weren't aware of it, I don't know why you would not seek counsel in these areas. This in not a mom and pop operation. The indication is that you were making $100,000 a month. I don't know how you could handle that kind of funds without realizing the fact that you are incurring very substantial obligations and if you are not managing your money properly, you wouldn't be able to pay it and you may be called on either to go to jail or produce the money or both. I don't know how you could not have known that as a person in business and if you can do it, I don't know why anybody else shouldn't be able to do it with impunity.

* * *

Somehow, Mr. Arent, we have to convey that people who are trustees of funds that belong to the Commonwealth cannot with impunity handle these funds like they are personal monies and offer explanations why they can't pay when it is time to pay. If every tax collector gave the Commonwealth the explanation that you gave and no money, we would be in bankruptcy right now. That is exactly where we would be. We could not afford...