Nos. 435, 436 April Term 1976, Appeal from Sentences of January 12, 1976 of the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division - CC 7503318-A and CC 7305326-A.
James B. Brown, Pittsburgh, for appellant.
Robert L. Campbell and Robert L. Eberhardt, Assistant District Attorneys, and Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion. Watkins, former President Judge, did not participate in the consideration or decision of this case.
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This is a direct appeal from judgment of sentence following appellant's plea of guilty entered on July 17, 1975, to two counts of violation of the Pennsylvania Sales and Use Tax Act, 72 P.S. § 7268(b) (1971). Appellant only challenges the legality of the sentence meted out by the court below.
The facts of the case may be briefly summarized as follows:
Appellant was arrested on April 24, 1975, pursuant to a warrant. At trial, an investigator for the Commonwealth of Pennsylvania Department of Revenue, Bureau of Sales and Use Tax, Mr. H. George Entrees, testified that his duties caused him to be familiar with appellant's tax records. At some length Mr. Entrees demonstrated that from April, 1971 to March, 1973, appellant during the course of his business collected $12,405.55 in taxes; and, from July, 1973 to June, 1974, appellant similarly collected a sum of $8,101.81. The total taxes collected, $20,507.36, was never remitted to the Commonwealth. Mr. Entrees further testified that despite the demand of the Commonwealth for payment, no monies toward the settlement of either sum were remitted.
Appellant did not contest the Commonwealth's evidence at trial, and pleaded guilty to the charges of failure to remit the Sales and Use Tax. Both offenses constitute misdemeanors of the third degree.
On January 12, 1976, appellant was sentenced by the Honorable Livingstone M. Johnson at No. 5326 October Sessions, 1973, to pay a fine of one thousand dollars ($1,000.00) and to undergo a term of imprisonment of not less than five and one-half nor more than eleven months; and at No. 3318 June Sessions, 1975, to pay a fine of one thousand dollars ($1,000.00) and to undergo a term of imprisonment of not less than six months nor more than one year, terms to run consecutively. The terms of imprisonment, since they were ordered to run consecutively, yield a total term of 11 1/2 to 23 months. At the end of the Court's sentencing order also appears the phrase "No Automatic
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Parole." This phrase was explained by the following verbal statement given to appellant by the trial judge at the Sentencing Hearing:
"The Court further directs and orders that you pay a $2,000.00 fine, that you pay the costs of prosecution. And this Court will inform you that until such time as $8,000.00 has been paid to the Commonwealth on account of the $20,500.00 debt you made to the State, this Court will not consider any parole unless it is amply demonstrated through credible evidence on the record before this Court that you have exhausted all ...