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COMMONWEALTH PENNSYLVANIA v. DAVID FONTAINE (06/28/76)

decided: June 28, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID FONTAINE, APPELLANT



Appeal from the Judgment of Sentence imposed March 25, 1975, of the Court of Common Pleas, Criminal, of Montgomery County, at No. 431 February Term, 1971, C.A. No. 258 of 1971. No. 1137 October Term, 1975.

COUNSEL

Calvin S. Drayer, Jr., Asst. Public Defender, Norristown, for appellant.

Stewart J. Greenleaf, Chief, Appeals Div., Norristown, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, President Judge, concurs in the result.

Author: Jacobs

[ 241 Pa. Super. Page 406]

On June 7, 1971, appellant entered a plea of guilty to an indictment charging violations of The Drug, Device and Cosmetic Act, Act of September 26, 1961, P.L. 1664, ยง 1 et seq., 35 P.S. 780-1 et seq. Specifically, the appellant pled guilty to "use of heroin, which would be a narcotic drug, and also there was found the possession of speed, a residue of speed, and possession of a residue of marijuana." N.T. Violation of the Drug Device and Cosmetic Act (Guilty Plea), June 7, 1971 at 2.*fn1 The appellant

[ 241 Pa. Super. Page 407]

    was placed on twenty-four months probation, fined $300.00, and directed to pay the costs of prosecution. No appeal, direct or collateral, was taken.

By reason of the appellant's subsequent misconduct, a probation violation hearing was held on April 26, 1972. The appellant was found in violation of the terms of his probation, his probation was revoked and the following sentence was imposed: "On criminal action No. 258 of 1971, index No. 431 February Term 1971, charging you with a violation of Drug, Device and Cosmetic Act [ see note 1 supra], sentence of the Court on count number two thereof is as follows, it having been determined that you are in violation of the probationary sentence imposed on this same indictment on June 7th, 1971, now April 26th, 1972, the defendant appearing in open court with counsel, is sentenced to pay the costs of prosecution and undergo imprisonment for not less than one or more than five years in such state correctional institution . . . ." N.T. Probation Violation Hearing at 35-36 (emphasis added). An appeal from this Judgment of Sentence was withdrawn on November 29, 1972.

The appellant served the minimum period of this prison term and was paroled on January 13, 1973. On September 11, 1974, appellant was arrested and charged with rape, involuntary deviate sexual intercourse, indecent assault and simple assault. On January 28, 1975 the appellant entered a plea of guilty to rape and was sentenced to a term of imprisonment of one and one-half to four

[ 241 Pa. Super. Page 408]

    years on the rape charge; the remaining indictments were nolle-prossed. As a result of this conviction, the appellant was recommitted as a parole violator in February of 1975.

The appellant, on March 20, 1975, filed a motion to "vacate and correct" the one-to-five year sentence on the drug charges, the sentence imposed as a result of his probation violation in 1972. The appellant's motion contained the following argument: "Under the authority of Pennsylvania's new drug law, the Controlled Substance Act, the maximum penalty for possession of drugs is a one year jail sentence and/or a fine of $5000 and the offense is a ...


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