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COMMONWEALTH PENNSYLVANIA v. ALFRED KOZIEL (01/28/81)

SUPERIOR COURT OF PENNSYLVANIA


submitted: January 28, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
ALFRED KOZIEL, APPELLANT

No. 1046 Philadelphia, 1980, Appeal from Judgment of Sentence dated March 31, 1980, Court of Common Pleas, Criminal Division, Luzerne County, at No. 2687 of 1979.

COUNSEL

Joseph Van Jura, Wilkes-Barre, for appellant.

Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Cavanaugh, Johnson and Lipez, JJ.

Author: Johnson

[ 289 Pa. Super. Page 23]

Following a jury trial commenced on February 11, 1980, Appellant was convicted of Aggravated Assault,*fn1 Recklessly Endangering Another Person,*fn2 and Unlawful Restraint.*fn3 No post-trial motions were filed and Appellant was sentenced

[ 289 Pa. Super. Page 24]

    on March 31, 1980 as follows: for Aggravated Assault, eighteen to thirty-six months; for Reckless Endangerment, one to two years, to run concurrently with the first sentence; for Unlawful Restraint, one to two years also to run concurrently.

Appellant was ordered to pay the costs of prosecution and was given credit for all time served to date in connection with the above offenses.

No motion was filed for reconsideration of sentence, and Appellant appealed directly to this court.*fn4

Rule 302(a) of the Pennsylvania Rules of Appellate Procedure provides that issues not raised in the trial court are waived and cannot be raised for the first time on appeal. Appellant's complaint concerning his sentence was not raised until this appeal.

The correct procedure would have been to file a written Motion to Modify Sentence within ten days of the imposition of sentence, as per Pa.R.Crim.P., Rule 1410, 42 Pa.C.S.A. The failure to do so waives any complaint concerning sentence that does not involve the lawfulness of the sentence itself. See Commonwealth v. Walls, 248 Pa. Super. 335, 375 A.2d 125 (1977), aff'd 481 Pa. 1, 391 A.2d 1064 (1978).

The purpose of this rule is to allow the sentencing court the first opportunity to modify its sentence. Commonwealth v. Shaw, 280 Pa. Super. 575, 421 A.2d 1081 (1980), Commonwealth v. Gottshalk, 276 Pa. Super. 102, 419 A.2d 115 (1980), citing Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977).

The trial court, however, failed to inform Appellant of his right to file a Motion to Modify Sentence within ten days, as required by Pa.R.Crim.P., Rule 1405(c), 42 Pa.C.S.A.*fn5

In Commonwealth v. Rush, 281 Pa. Super. 72, 421 A.2d 1163 (1980) this court remanded and directed the lower court

[ 289 Pa. Super. Page 25]

    to entertain Appellant's motion for modification of sentence nunc pro tunc. The lower court in Rush had failed to advise the defendant of his right to petition for modification of sentence within ten days.

The record is silent as to any indication of a waiver by Appellant of his right to file such a motion.

Because of the trial court's failure to inform Appellant of his rights, we must order this case remanded. The case is remanded with directions to the lower court to entertain Appellant's motion for modification of sentence nunc pro tunc. Appellant shall have ten days from the filing of the record and this opinion in the lower court in which to file a motion for modification of sentence with the lower court. Jurisdiction is not to be retained by this court.


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