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COMMONWEALTH PENNSYLVANIA v. RICHARD ELLISON (12/18/81)

filed: December 18, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
RICHARD ELLISON, APPELLANT



No. 1827 October Term, 1979, Appeal from Order of the Court of Common Pleas, Criminal Division, of Montgomery County at No. 890 April Term, 1973.

COUNSEL

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

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

Price, Cavanaugh and Watkins, JJ. Price, J., did not participate in the consideration or decision of this case.

Author: Cavanaugh

[ 293 Pa. Super. Page 331]

Defendant appeals from a sentence of confinement imposed after the court found him in violation of his probation for the second time. The defendant argues that the lower court committed various sentencing errors. We affirm.

In August, 1974 the defendant pled guilty to burglary, larceny, receiving stolen goods, and conspiracy to commit burglary; the Commonwealth nol prossed other charges against him. As a result he was sentenced to five years' probation.

In December, 1977 after a hearing defendant was found to have violated his probation since he had been convicted of another offense.*fn1 The court once again sentenced the defendant to five years' probation; it also ordered the defendant to undergo inpatient therapy for drug addiction.

In August, 1979 the court, after a hearing, found the defendant had once again committed a crime during probation. At the hearing it was shown that he had been arrested and charged with burglary, theft, receiving stolen property, conspiracy, possession of an instrument of a crime, and criminal mischief, but had not yet been tried on those charges. Based on the testimony produced at the hearing the court concluded that the defendant had committed a crime while on probation. It appeared to the court that the defendant had broken into a drug store, had fled after the alarm had sounded and had been apprehended in the vicinity of the crime.

After the hearing the court revoked probation and imposed a term of imprisonment of two to five years. Subsequently

[ 293 Pa. Super. Page 332]

    the defendant timely filed a petition for modification of sentence. The petition was denied and this appeal followed.

Defendant argues that the sentencing record fails to show that the court considered the "five sentencing alternatives and the factors that weigh in favor of each." See 42 Pa.C.S.A. § 9721. Appellant's brief 9. He also argues that in revoking probation and imposing confinement the court failed to make the findings required by 42 Pa.C.S.A. § 9771(c).*fn2 The Commonwealth argues that these issues have been waived since they were ...


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