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COMMONWEALTH PENNSYLVANIA v. ELMER HERMAN ULBRICK (07/07/75)

decided: July 7, 1975.

COMMONWEALTH OF PENNSYLVANIA
v.
ELMER HERMAN ULBRICK, APPELLANT



COUNSEL

Thomas F. Morgan, Public Defender, Clearfield, for appellant.

Richard A. Bell, Dist. Atty. William C. Kriner, Asst. Dist. Atty., Clearfield County, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion. Pomeroy, J., filed a concurring opinion.

Author: Per Curiam

[ 462 Pa. Page 258]

OPINION OF THE COURT

The appellant filed a petition under the Post Conviction Hearing Act challenging the legality of his sentence after his conviction of two counts of murder in the second degree. The petition was denied and this appeal followed.

The trial court imposed a sentence of twenty years. No minimum sentence was stated by the Court as is required by the Act of June 19, 1911, P.L. 1055, § 6, 19 P.S. § 1057. Appellant contends that the failure to announce a minimum sentence makes the sentence illegal and justifies his discharge.*fn1 However, imposition of a

[ 462 Pa. Page 259]

    flat sentence benefits the defendant for the minimum is then presumed to be one day and he thus becomes immediately eligible for parole. Commonwealth v. Butler, 458 Pa. 289, 294, 328 A.2d 851, 855 (1974); Commonwealth v. Daniel, 430 Pa. 642, 647 n. 243 A.2d 400, 462 n. 6 (1968); Commonwealth ex rel. Kehl v. Myers, 194 Pa. Super. 522, 169 A.2d 117 (1961); Commonwealth ex rel. Clawges v. Claudy, 173 Pa. Super. 410, 98 A.2d 225 (1953); and Act of Aug. 6, 1941, P.L. 861, § 21, as amended, 61 P.S. § 331.21. Since the minimum is implied, the sentence is legal and the appellant has incurred no harm.*fn2

Order affirmed.

ROBERTS, Justice (concurring).

Appellant seeks in this collateral proceeding to challenge the validity of his sentence for murder in the second degree. This he could have done in a direct appeal from his judgment of sentence. Having failed to pursue a direct appeal and to prove the existence of extraordinary and unusual circumstances justifying his failure to appeal, appellant's present claim has been waived. Post-Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, §§ 3(d), 4(b) & (c), 19 P.S. §§ 1180-3(d), -4(b) & (c) (Supp.1974); Commonwealth v. ...


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