Com. v. Masip

• Decision Date: 07 December 1989
• Citation: 567 A.2d 331,389 Pa.Super. 365
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Carlos MASIP. 3218 PHILA. 1988
• Court: Pennsylvania Superior Court

Page 331

567 A.2d 331

389 Pa.Super. 365

COMMONWEALTH of Pennsylvania, Appellant, v. Carlos MASIP.

3218 PHILA. 1988

Superior Court of Pennsylvania.

Submitted Oct. 18, 1989.

Filed Dec. 7, 1989.

Hugh Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellant.

Arthur H. James, Philadelphia, for appellee.

Before BROSKY, ROWLEY and McEWEN, JJ.

BROSKY, Judge.

This is an appeal taken by the Commonwealth of Pennsylvania from the judgment of sentence imposed upon Carlos Masip following the latter's bench trial conviction of possession of a controlled substance, possession with intent to manufacture or deliver a controlled substance, possession of drug paraphernalia and criminal conspiracy.

On appeal, the Commonwealth complains that the sentencing court abused its discretion when it sentenced Masip to a minimum nine months' confinement on the charge of possession with intent to manufacture or deliver to be followed with terms of probation for the conspiracy and drug paraphernalia charges. We recognize that the Commonwealth has demonstrated the existence of a substantial question that the sentence imposed adversely impacts upon the scheme of the Sentencing Code as a whole. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); Commonwealth v. Cleveland, 364 Pa.Super. 402, 528 A.2d 219 (1987); Pa.R.App.P. 2119(f). Therefore, we grant the Commonwealth's request to review this discretionary aspect of sentencing. Because we conclude that the court abused its discretion in sentencing Masip, we vacate the sentence imposed and reverse and remand for resentencing in accordance with the directives of this Opinion.

Specifically, Masip's sentence consists of the following terms and conditions: On the charge of possession with intent to manufacture or deliver a controlled substance, a term of nine to twenty-three months' incarceration was imposed. As a condition of parole, Masip was to complete an in-patient drug therapy program followed by out-patient therapy and was to undergo random urinalysis. He was also required to participate in a program that would enable him to learn the English language. Relative to the charge of criminal conspiracy, Masip received a sentence of probation of three years to run consecutively to the sentence imposed on the charge of possession with intent to manufacture or deliver. Masip was also sentenced to a two-year term of probation on the charge of possession of drug paraphernalia to run concurrently with the three-year probationary sentence imposed for the charge of criminal conspiracy.

The Commonwealth assigns as the reason for the minimal sentence imposed the sentencing court's reliance on language contained in Section 9721(b) of the Sentencing Code, 42 Pa.C.S.A. § 9721(b), prior to its amendment in 1978. That section formerly read:

(b) General standards.--In selecting from the alternatives set forth in subsection (a) of this section, the court shall follow the general principle that the sentence imposed should call for [the minimum amount of] confinement that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant.

The bracketed portion of the above was deleted by the 1978 amendment. The sentencing court, in its Opinion filed in support of its denial of the Commonwealth's Motion for reconsideration of sentence, concluded that the sentence imposed was not an abuse of its discretion because "[t]his court ... found no compelling reason not to afford defendant with an opportunity to address his drug problem subsequent to a period of incarceration, with confinement in a drug treatment facility for a minimum of nine months. (See Commonwealth v. Sheridan, [348 Pa.Super. 574, 502 A.2d 694 (1985) ] [ ) ]." At 7. (Emphasis in text).

The language in Sheridan upon which the sentencing court relied tracked that contained in the pre-1978 amendment to Section 9721(b). "A sentence must be the minimum punishment consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant." At 579, 502 A.2d at 696; (emphasis added). From this, the Sheridan court concluded that it was not an abuse of discretion to sentence the appellant there to a term of probation rather than incarceration pursuant to her plea of guilty to four counts of delivery of a controlled substance.

Taking the above language as its cue, the sentencing court here believed, albeit mistakenly as we conclude, that it was required to sentence Masip to a minimum amount of confinement for the most serious drug offense for which he was convicted. The sentencing court was of the opinion that, absent any compelling reason to the contrary, Masip should be afforded the opportunity to address his drug problem. At the sentencing hearing, the court maintained that Masip would be unable to receive appropriate treatment for his drug addiction if he were incarcerated. Moreover, the court considered Masip's inability to communicate in the English language as a barrier to obtaining gainful, legitimate employment.

The Commonwealth argues that under the circumstances of this case, none of these factors justifies the imposition of a minimal sentence of incarceration followed by probation. We agree.

A very similar situation confronted this court in Commonwealth v. Cleveland, supra. There, the court analyzed the four factors which an appellate court must consider in reviewing a sentencing record for a possible abuse of discretion in imposing sentence. The four factors, set forth as part of Section 9781 of the Sentencing Code, 42 Pa.C.S.A. § 9781(d), and reiterated by the Cleveland court, are as follows:

(d) Review of record.--In reviewing the record the appellate court shall have regard for:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

As did the Cleveland court, we will analyze each of the four criteria in light of the record in this case. The first criterion which we must consider is the nature and circumstance of the offense as well as the history and character of Masip. The record reveals that over fourteen hundred grams of white powder which was later determined to be cocaine, together with drug paraphernalia and over ten thousand dollars in cash, were seized at the residence shared by Masip and his co-defendant.

Masip also had two prior convictions for criminal conduct occurring in his native land of Cuba. For both convictions, he spent a total of three and one-half years in a Cuban prison. Masip, at the time of his conviction, was forty-seven years old and spoke no English. He came to the United States in 1980 as part of the Mariel boat lift. Masip denied any involvement in the sale or delivery of controlled substances and denied that he was a substance abuser. However, a urinalysis indicated that cocaine was present in his system. Although Masip has been consuming alcohol since the age of twenty, he denied having experienced any blackouts or problematic drinking habits. In short, he denied having an alcohol or drug problem despite the information contained in his drug and alcohol evaluation report.

The second factor to be assessed is the opportunity of the court, especially aided by the presentence report, to observe Masip. The above information was gleaned from the presentence report. The investigator for the Adult Probation and Parole Department of the court reported that because of Masip's refusal to acknowledge that he had a substance and alcohol abuse problem, he was not likely to be a favorable candidate for drug/alcohol therapy due to his lack of motivation and failure to admit his addiction. Additionally, the evaluation offered by the presentence investigator reveals the following:

Seemingly, [Masip] has had difficulty adjusting to life in the United States since he has left Cuba in 1980. His educational background is poor and his employment history is virtually non-existent. He is ill-equipped to deal with his environment, selling illicit substances to support himself. Consequently, he does not speak English and he is a drug abuser. These factors only compound his problem.

It is felt that he will not grasp the seriousness of his involvement with the law until he abstains from the use of intoxicants. Overall his use of illicit substances appears to be quite out of control. His motivation for change appears to be largely manipulative and self-serving. Essentially, his criminal activity appears to be a manifestation of his drug involvement.

There is no reason to believe that [Masip's] pattern of anti-social behavior will be altered to any degree without court intervention.

Presentence Report, Investigation, p. 3; (emphasis added).

Thirdly, we must examine the findings upon which the sentence was based. The court in its Opinion and at the sentencing hearing assigned as reasons for imposition of the nine-month sentence of incarceration and the subsequent probation Masip's drug problem for which the court stated he should be given the opportunity to obtain treatment at an in-patient and, later, an out-patient drug facility, his inability to speak English which the court believed negated his ability to secure gainful, legitimate employment and his further non-involvement with the criminal justice system.

Finally, as the fourth criterion, we must look to the Sentencing Guidelines. The Sentencing Guidelines were...