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COMMONWEALTH PENNSYLVANIA v. TERRY LEE WALLS (06/29/77)

decided: June 29, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
TERRY LEE WALLS, APPELLANT



Appeal from the sentence of October 14, 1975, of the Court of Common Pleas of Somerset County, Criminal Division, at Nos. 56, 255, 286, 306 of 1975.

COUNSEL

John M. Cascio and James O. Courtney, Somerset, for appellant.

Frederick F. Coffroth, District Attorney, Somerset, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion in which Cercone and Spaeth, JJ., join.

Author: Price

[ 248 Pa. Super. Page 336]

On December 3, 1973, appellant was placed on probation for two years after being convicted of aggravated assault and battery. On September 15, 1975, appellant pleaded guilty to charges of criminal trespass, receiving stolen property, theft by deception, and burglary. On October 6, 1975, appellant's probation was revoked and on October 14, 1975, appellant was sentenced on all of the above charges.

The sentences on the convictions for criminal trespass, receiving stolen property, theft by deception, and burglary were made to run concurrently. However, these sentences

[ 248 Pa. Super. Page 337]

    were all made to run consecutively to the sentence on the aggravated assault and battery conviction, for which appellant had originally been placed on probation. The lower court judge's reason for imposing a consecutive sentence is revealed by his statement at the sentencing hearing:

"One thing I want to make sure you understand, Mr. Walls, is that according to the law we must sentence you on your old charge first, where the probation was revoked, and then we sentence you on your new charges, and the sentences on the new charges cannot begin until the sentence on the old charge is served. We cannot make them run at the same time -- concurrently. That's the law. We couldn't make it otherwise if we wanted to, do you understand that?"

Appellant contends that this was error. The Act of June 19, 1911, P.L. 1055, § 10 (61 P.S. § 305), as amended, provides that if a person released on parole is convicted of a crime, the remainder of the sentence on the original crime must be served before commencement of the sentence on the second crime. Our court has interpreted this statute to mandate consecutive sentences for parole violators. Commonwealth v. Terry, 229 Pa. Super. 443, 323 A.2d 82 (1974); Commonwealth v. Draper, 222 Pa. Super. 26, 293 A.2d 614 (1972).

There is no statute, however, that prohibits a court from imposing concurrent sentences when a person violates probation by committing a crime. Therefore, the general discretion inherent in a lower court's sentencing power would seem to apply. See also Pa.R.Crim.P. 1406; 18 Pa.C.S. § 1321(a); 18 Pa.C.S. § 1371(b).

We need not decide this issue, however, because appellant failed to object or otherwise bring the error to the lower court's attention. Although we have held that a sentence which is unlawful per se cannot be waived, Commonwealth v. Richardson, 238 Pa. Super. 410, 357 A.2d 671 (1976); Commonwealth v. Lane, 236 Pa. Super. 462, 345 A.2d 233 (1975); Commonwealth v. Rispo, 222 Pa. Super. 309, 294 A.2d 792 (1972), ...


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