Commonwealth v. Stone , 229 Pa. Super. 24 ( 1974 )

Opinion by

Price, J.,

This is an appeal from the sentence imposed by the Court of Common Pleas, Criminal Division, of Dauphin County after waiver of presentment to the Grand Jury and the entry of a plea of guilty by the Appellant to a count of possession with, intent to deliver and manufacture, and unlawful possession of a controlled substance under The Controlled Substance, Drug, Device and Cosmetic Act, April 14, 1972, P. L. 238, No. 64, §15, as amended (35 P.S. §780-115). Appellant had at least one prior conviction and therefore came under the provisions of Section 115 of said Act. The Judgment of Sentence imposed by the lower court was a term of two to five years. On this direct appeal Appellant agrees that this sentence was lawful under the applicable provisions of the statutory law, but claims it to be excessive under the circumstances of this case. We cannot agree, and Judgment of Sentence will be affirmed.

Appellant, by prior arrangement with an out-of-state source, received approximately six pounds of marijuana through air express for delivery to Appellant’s Harrisburg address. Subsequent to making such arrangements and prior to delivery Appellant apparently had a change of heart and notified his parole officer and the Harrisburg police of the forthcoming delivery. Approximately two minutes after delivery of this package, and before it was opened, Harrisburg police who had proper warrants arrived, confirmed the contents of the package and placed Appellant under arrest and properly advised Appellant of his rights.

Appellant waived arraignment and presentment to the Grand Jury and was represented by the Office of Public Defender of Dauphin County. The record contains an exceptionally full colloquy including a discussion of prior convictions and the possibility of a sentence of up to ten years. Appellant’s understanding was complete, with only his request for probation or leniency entered upon the record. No promises or plea bargaining are alleged.

The legislature alone can prescribe the sentences permissible under the penological system of the Commonwealth and the permissible sentence in this case could have been a maximum of ten years. The lower court, in its proper function, imposed a sentence of two to five years, well under the maximum allowable under applicable statutes. This is certainly a reflection of the circumstances of the case and while not the sentence requested by Appellant, is a proper and legal sentence. The fixing of the terms of a sentence is exclusively a judicial function and the severity of the sentence lies within the sole discretion of the trial court and will not be reviewed on appeal unless it exceeds the statutorily prescribed limits or is so manifestly excessive as to constitute too severe a punishment. Commonwealth v. Brown, 443 Pa. 274, 278 A. 2d 170 (1971); Commonwealth v. Wrona, 442 Pa. 201, 275 A. 2d 78 (1971); Commonwealth v. Bilinski, 190 Pa. Superior Ct. 401, 154 A. 2d 322 (1959).

Since the sentence here falls within neither we will not disturb the sentence.

The Judgment of Sentence of the lower court is affirmed.

Spaeth, J., dissents.