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

SUPERIOR COURT OF PENNSYLVANIA


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 such motion must be filed; . . ."

The comment following said rule indicates that "(t)he advice mandated under paragraph (c) refers in part to the procedure under . . . Rule 1410."

Though our research fails to reveal a reported case on a trial judge's obligation to advise a defendant of his right to petition for modification of sentence within ten days, our Supreme Court has previously discussed the duty to advise of other rights similarly set forth in subsection (c) of the rule. See Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968); Commonwealth v. Stewart, 430 Pa. 7, 241 A.2d 764 (1968) [right to free assistance of counsel on appeal, set forth in (c)(1)].

In cases where, as the present one, the record is silent, the burden is placed upon the Commonwealth to show that the defendant waived or abandoned a mandated right. See Commonwealth ex rel. Mullins v. Maroney, 428 Pa. 195, 236 A.2d 781 (1968); Commonwealth ex rel. Robinson v. Myers, 427 Pa. 104, 233 A.2d 220 (1967). Of course, the court must first conclude that the defendant was actually aware of such right.

We can, however, perceive no benefit to be gained from remanding the matter to enable the sentencing court to receive evidence for the purpose of determining whether appellant was, in fact, aware of such right but, nonetheless, chose to waive same.

While the sentencing judge's opinion acknowledges the oversight in failing to fully advise appellant of her rights, it suggests that even were the petition to have been timely filed, same would have been denied. However, since the order dismissing the request for modification merely cites the petition's untimeliness,*fn3 the record does not fully

[ 281 Pa. Super. Page 96]

    support such an inference. Accordingly, the case will be remanded with instructions for the lower court to entertain appellant's petition for modification of sentence nunc pro tunc.

We are mindful, of course, that the lower court may well choose to deny the request on the merits. In such event, this court will permit, upon motion of counsel, an appeal upon those remaining issues raised, but not decided, herein. Notwithstanding that possibility, we believe appellant is entitled to the sentencing court's consideration of such a petition since her right to same was previously denied as a result of the court's failure to properly advise her of its availability.

Case remanded with directions to the lower court to entertain appellant's motion for modification of sentence nunc pro tunc.

WICKERSHAM, Judge, dissenting:

I dissent from the majority decision in this case to remand with direction to the lower court to entertain appellant's motion for modification of sentence nunc pro tunc.

Rule 1410 of Pa.R.Crim.P. requires a defendant to file a motion to modify sentence in writing within ten (10) days after imposition of sentence. The sentencing judge should call this rule to the attention of the defendant at the same time of sentencing.*fn1 Such was not done in the present case and Judge Tredinnick dismissed defendant's petition for modification of sentence because it was filed more than ten (10) days after sentence.

The point, however, which the majority of this panel overlooked, is the fact that Judge Tredinnick in fact gave full consideration to defendant's petition for modification of

[ 281 Pa. Super. Page 97]

    sentence, disposed of it on its merits, and discussed it fully in his Opinion of June 27, 1979.*fn2


*fn* Justice Samuel J. Roberts of the Supreme Court of Pennsylvania, is sitting by designation.


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