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COMMONWEALTH PENNSYLVANIA v. JOHNETTA RUSH (08/22/80)

filed: August 22, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHNETTA RUSH, A/K/A JANET LINDA HODGES, APPELLANT



No. 881 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Montgomery County, Criminal Division, at No. 5437 October Term, 1975 and 4411 of 1976

COUNSEL

Arthur J. King, Assistant Public Defender, Norristown, for appellant.

Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Brosky, Wickersham and Roberts, JJ.*fn* Wickersham, J., files dissenting opinion.

Author: Per Curiam

[ 281 Pa. Super. Page 93]

On March 23, 1979, appellant, Johnetta Rush, was sentenced to a term of imprisonment of two and one-half to five years following the revocation of a probation previously

[ 281 Pa. Super. Page 94]

    granted at No. 5437 October Term, 1975.*fn1 Thereafter on April 24, 1979, appellant petitioned the lower court for modification of that sentence pursuant to Pa.R.Crim.P. 1410;*fn2 however, same was dismissed on May 9, 1979 as having been untimely filed.

On appeal, appellant raises the following issues: (1) whether the lower court erred in dismissing the motion to modify sentence since it had failed to instruct appellant at the time of sentencing of the requirement of filing same within ten days; (2) whether the sentence imposed was sufficiently reflective of the guidelines mandated by the sentencing code; and (3) whether the sentence imposed was excessive.

Since we agree with appellant's first contention of error, it becomes unnecessary for us to consider the others.

Pa.R.Crim.P. 1405 provides, in relevant part, that at the time of sentencing the judge shall: ". . . (c) advise the defendant on the record: . . . (2) of the right to file motions

[ 281 Pa. Super. Page 95]

    challenging the propriety of the sentence . . .; (3) of the ten day time limit within which ...


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