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State v. Ross2/3/1999
The appellant, Phenix H. Ross, was found guilty by a Chester County jury of possession of marijuana, a class A misdemeanor. At a subsequent sentencing hearing, the trial court imposed a sentence of eleven months and twenty nine days, suspending all but one hundred and twenty days with the balance of the sentence to be served on supervised probation. The appellant now appeals the sentencing decision of the trial court.
After review of the record, we affirm.
Background
On February 11, 1997, at approximately 9:50 p.m., Henderson Police Officer Ronnie Faulkner was called to a local Bull Market convenience store. The clerk at the store directed the officer's attention to the appellant who at the time was in his vehicle on the parking lot with the engine running. As the car door opened, Officer Faulkner detected a strong odor of alcohol. Faulkner requested that the appellant perform a field sobriety test, which the appellant was unable to successfully execute. The appellant was then arrested for driving under the influence and Faulkner conducted a pat down search of his person. The pat-down resulted in the discovery of a pack of rolling papers in the appellant's front pocket. The appellant was placed in the patrol car, and Officer Faulkner, now accompanied by Chester County Deputy Weaver, conducted a search of the appellant's vehicle. Faulkner discovered a white plastic bag on the floorboard of the passenger's side of the appellant's car. The bag contained, what was later confirmed to be, 1.7 grams of marijuana. The appellant was transported to the county jail where he refused to take a breathalyzer test. He was subsequently indicted for driving under the influence and possession of marijuana. A jury found the appellant not guilty of the DUI charge but guilty as to the possession charge.
At the sentencing hearing, the State relied upon proof of the appellant's two prior DUI convictions. The appellant's proof consisted of three character witnesses: his minister, his wife, and his employer . The appellant's minister testified that the appellant occasionally attended church and worked for the church. The appellant's wife stated that she and the appellant had three children and that "he works every day." Finally, the appellant's employer testified that the appellant had a "good attendance record. He's there on time. He is multi talented, versatile --I depend on him every day."
The trial court's findings are noted as follows:
"I think an appropriate sentence in this case would be imprisonment for 11 months and 29 days and a $500 fine. He has got to serve some jail time because he has two prior very super serious misdemeanors, and those being driving under the influence of an intoxicant, and, of course, in this case he did possess marijuana -- and he did possess rolling papers. I am not counting that as an enhancement or anything, and he wasn't convicted of that. He did have it. I think an appropriate jail period would be 120 days."
"Accordingly, the defendant is sentenced to a period of imprisonment of 11 months and 29 days, all suspended but 120 days, which he must serve. He can serve that on work release, if he can qualify with the Sheriff."
Analysis
Again, the appellant alleges that the trial court's imposition of 120 days incarceration is excessive. Specifically, the appellant complains that the trial court failed to consider his lack of criminal history, his stable employment, and his responsibilities as provider for his family in determining an appropriate sentence. In addressing the appellant's challenge, we are mindful that our de novo review is conditioned with the presumption that the s
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