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COMMONWEALTH PENNSYLVANIA v. GEORGE NICKENS (10/20/78)

decided: October 20, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE NICKENS, APPELLANT



NO. 855 OCTOBER TERM, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, of Philadelphia County, at No. 1607 March Term, 1976.

COUNSEL

John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Van Der Voort

[ 259 Pa. Super. Page 144]

Appeal is taken from judgment of sentence rendered following acceptance of appellant's guilty plea to the crime of criminal trespass. Following argument and denial of post-trial motions, the lower court sentenced appellant to six months to 23 1/2 months in County Prison, to be followed by probation for three years, which probation would expire five years from December 14, 1976. This sentence was vacated pending hearing on appellant's petition to set aside illegal sentence. Following said hearing and denial of requested relief, the lower court reimposed the sentence. The sole question on appeal is the legality of sentence.

[ 259 Pa. Super. Page 145]

Appellant recognizes correctly that the applicable statute governing sentencing is the "Sentencing Code", Act of 1972, Dec. 6, P.L. 1482, No. 334, 18 Pa.C.S. § 1301 et seq. He argues that it is inconsistent with the purpose of sentencing and incorrect under the law to impose probation and incarceration. The two forms of punishment are to be construed alternatively, he maintains particularly because the guidelines for ordering probation, found in § 1322 of the Act, are at variance with the considerations involved in sentencing to total confinement, § 1325. Nor is there statutory allowance or historical precedent for split sentencing, claims the appellant.

Appellant has misconstrued the present "Sentencing Code." While historically it was the practice of our courts to suspend sentence prior to imposition of terms of probation, if such was to be the disposition of the guilty party, such is not the mandate of the present statute:

§ 1321

(a) General rule. -- In determining the sentence to be imposed the court shall, except where a mandatory minimum sentence is otherwise provided by law, consider and select one or more of the following alternatives, and may impose them consecutively or concurrently:

(1) An order of probation.

(2) A determination of guilt without ...


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