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COMMONWEALTH PENNSYLVANIA v. TERRY LEE WALLS (10/05/78)

decided: October 5, 1978.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
TERRY LEE WALLS, APPELLANT



No. 243 March Term, 1977, Appeal from Order of the Superior Court at No. 232 April Term, 1976, affirming Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Somerset County, at Nos. 56, 286, 306 and 331, 1975. Entered: October 20, 1977

COUNSEL

John M. Cascio, Somerset (Court-appointed), for appellant.

Frederick F. Coffroth, Dist. Atty., Somerset, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Nix, J., concurs in the result. Manderino, J., filed a dissenting opinion. Roberts, J., would dismiss the appeal believing the petition for allowance of appeal was improvidently granted.

Author: Eagen

[ 481 Pa. Page 2]

OPINION OF THE COURT

On December 3, 1973, following his conviction of aggravated assault and battery, Terry Lee Walls was placed on probation for two years. On September 15, 1975, Walls entered pleas of guilty to burglary, criminal trespass, theft

[ 481 Pa. Page 3]

    by deception and receiving stolen goods. As a result of these last convictions, the probation imposed on December 3, 1973, was revoked on October 6, 1975, after a counseled evidentiary hearing.

On October 14, 1975, Walls was sentenced to imprisonment for one to three years on the 1973 aggravated assault conviction. Separate sentences were also imposed on each of the 1975 convictions. These last mentioned sentences aggregating two to five years imprisonment were directed to be served concurrently with each other, but consecutively to the sentence imposed on the 1973 conviction.

Walls filed an appeal in the Superior Court challenging the legality of the sentences, and a divided court affirmed. We granted allocatur.

Walls maintains the trial judge imposed consecutive sentences under a misapprehension of the law and, therefore, abused his discretion. During the sentencing proceeding, the court said this:

"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 Walls, is that according to the law we must sentence you on your old charge first, where the probation was revoked, and then we sentence you on your new charges, and the sentences on the new charges cannot begin until the sentence on the old charge is served.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 -- ...


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