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COMMONWEALTH PENNSYLVANIA v. ROGER W. CLIFFORD (11/06/81)

SUPERIOR COURT OF PENNSYLVANIA


November 6, 1981

COMMONWEALTH OF PENNSYLVANIA
v.
ROGER W. CLIFFORD, APPELLANT

No. 912 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Cumberland County, Pennsylvania, Criminal Division at Nos. 1026 and 1034 of 1979.

Before Brosky, Johnson and Popovich, JJ.

MEMORANDUM OPINION:

On February 8, 1980, the appellant, Roger W. Clifford, pled guilty to Burglary*fn1 and Theft by Unlawful taking.*fn2 The court sentenced appellant to 1 1/2 to 4 years on the Burglary count and a concurrent term of 6 to 12 months for the Theft offense on March 18, 1980. This appeal followed.

Appellant asserts on appeal that he is entitled to have his sentence modified to include drug treatment in order to comply with the general standards of the Sentencing Code;*fn3 and for the first time, that the lower court erred in conducting a modification of sentence hearing in his absence. We disagree.

As to appellant's initial point, we observe that at the sentencing hearing, in compliance with the Sentencing Code and Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), the trial court delineated its reasons for the sentence imposed. In the course thereof, "[i]t... recommended to the Diagnostic Center at Camp Hill that the [appellant] be considered for the Drug and Alcohol Program available at that Institution." (Emphasis added) (Record No. 10, at 4) Since the presentence report indicated that the appellant had a drug and alcohol problem, it was the trial judge's hope that appellant could be "benefit[ted] from this program during his stay at Camp Hill." Id. at 5.

However, the professional staff at Camp Hill, after subjecting the appellant to a battery of tests, concluded that he did not have a very serious drug and alcohol problem warranting admission into the type of peer program administered at Camp Hill. (N.T. 5/9/80, at 8-9) Additionally, appellant's eligibility for parole within a matter of months discounted the usefulness of such a program. As a result, he was transferred to Rockview, where he would have access to a similar type of alcohol and drug program. It is appellant's contention that such transfer was violative of the court's sentencing Order. We think otherwise.

Appellant cites no relevant authority, and we can find no authority or reasoning to support his contention. Additionally, we note that the trial judge merely "recommended" that the appellant "be considered" for the drug-alcohol program, which the staff at Camp Hill did do. Thus, we do not read the court's sentencing Order as conditional upon appellant being admitted into the program.

More importantly, once the appellant was incarcerated the question of his being transferred from one institution to another was not the court's concern or within its jurisdiction; rather, we find that "those matters are plainly under the control of the prison authorities...." Gaito v. Pennsylvania Bd. of Prob. & Parole, Pa. Commw. , , 392 A.2d, 343, 346 (1978), aff'd and remanded, Pa. , , 412 A.2d 568, 571 (1980).

Appellant's last claim, concerning the trial court's conducting a hearing on his Motion for Reconsideration of Sentence in his absence, need not be addressed.

Pursuant to 42 Pa.C.S.A. ยง 5505 (Pamphlet, 1981) the lower court, after imposing a legal sentence, is empowered to alter such sentence only during the term of court in which the sentence was imposed, or within thirty (30) days if the term of court expires prior to the running of the thirty day period, if no appeal from such order imposing such sentence has been taken or allowed. See generally Commonwealth v. Yoder, Pa. Super. , 378 A.2d 350 (1977). The 30-day time limitation of Section 5505 by its terms does not apply to the timely filing of the motions. It sets a time on the power of the court to act. See Commonwealth v. Pinkney, 267 Pa. Super. 288, 406 A.2d 1045 (1979); accord United States v. Nunzio, D.C.App. , 430 A.2d 1372 (1981). The fact that the Commonwealth may not object to the court's decision to conduct a hearing to reconsider sentence beyond the prescribed time set forth in Section 5505, as was the case here, does not legitimize such action. Commonwealth v. Pinkney, supra.

In the instant case, appellant was sentenced on March 18, 1980. Thus, the run date under Section 5505 would have required that the trial court issue a ruling on the matter by April 17, 1980. Here, the hearing on the Motion was held on May 8, 1980; the Order denying appellant's Motion was entered on June 24, 1980.Clearly, not only had the term of court expired, but the Order denying the Motion was rendered well beyond the prescribed period. Additionally, the appellant took an appeal from the Order imposing the complained of sentence on April 18, 1980. Consequently, since the trial court had no authority to hold the scheduled hearing, see Commonwealth v. Pinkney, supra, 267 Pa. Super. at n. 5, 406 A.2d at 1048 n. 5, a fortiori, it cannot be held to have been error for the trial court to have conducted same in appellant's absence.

Judgment of Sentence affirmed.


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