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

SUPERIOR COURT OF PENNSYLVANIA


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 not raised in defendant's petition for modification of sentence. We agree that these issues have been waived.

Pa.R.Crim.P. 1410 requires that a motion to modify a sentence be in writing and be filed within ten days after imposition of sentence. The comment to Rule 1410 states that "[t]his rule provides a procedure whereby a motion to modify sentence must be raised in the first instance before the sentencing court, thereby giving that court the first opportunity to modify the sentence." (Emphasis added). Moreover, Pa.R.Crim.P. 1405(c) requires, inter alia, that the judge at the time of sentencing advise the defendant that he has the right to challenge the propriety of his sentence, and that only claims raised in the lower court may be raised on appeal. Read together these rules require that challenges to the propriety of a sentence must be raised in the lower court or the claim will be waived on appeal. These rules reflect the principle that the lower court should be given the opportunity to correct its errors and these rules are in accord with the rule that "[i]ssues not raised in the lower court are

[ 293 Pa. Super. Page 333]

    waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302. Finally, numerous cases have held that failure to raise particular issues at the time of sentencing or in a motion to modify sentence results in waiver on appeal. E.g., Commonwealth v. Collins, 492 Pa. 405, 424 A.2d 1254 (1981); Commonwealth v. Anderson, (682 Phila. 1980, J-1/1981, 1981) (collecting cases); Commonwealth v. Morris, 273 Pa. Super. 477, 417 A.2d 748 (1979) rev'd on other grounds 492 Pa. 565, 424 A.2d 1336 (1981).

In the instant case the petition to modify the sentence stated in pertinent part that "[c]ounselors have recommended that the petitioner continue his participation in the drug addiction program." This statement is insufficient to inform the lower court that it erred by not considering the "five sentencing alternatives and the factors that weigh in favor of each" thus that issue is not preserved for appeal.

The above-quoted statement from the petition to modify is also insufficient to inform the lower court that it erred by failing to make the findings required by 42 Pa.C.S.A. § 9771(c). Nevertheless our analysis does not end there. It may be argued that the imposition of a sentence of total confinement when there are no findings required by 42 Pa.C.S.A. § 9771(c) is an illegal sentence. If a sentence is illegal, it may be that the issue is not waived for failing to raise it in the lower court.*fn3 If we assume arguendo that an

[ 293 Pa. Super. Page 334]

    issue of illegal sentence is not waived, we must consider whether the judge's failure to make the findings required by 42 Pa.C.S.A. § 9771(c) rendered the sentence of total confinement illegal.

In the instant case the revocation hearing contains evidence from which the judge could have made one of the findings required by 42 Pa.C.S.A. § 9771(c). Specifically the judge could have found that the defendant would be likely to commit another crime or that total confinement was essential to vindicate the authority of the court. We hold that when the record contains evidence from which the judge could have made the findings required by 42 Pa.C.S.A. § 9771(c), the judge's failure to expressly make such findings

[ 293 Pa. Super. Page 335]

    will not render a sentence of total confinement illegal. Since the sentence was not illegal in this respect, the defendant was obliged to raise this issue in his motion to modify.*fn4

Although we hold that two of defendant's claims are waived, we shall consider the merits of defendant's claim that the sentence was harsh and excessive. We consider this argument only in light of defendant's statement in the motion to modify his sentence that counselors have recommended his continued participation in the drug addiction program.

The imposition of a proper sentence is a matter vested in the sound discretion of the trial court. Commonwealth v. Edrington, 490 Pa. 251, 416 A.2d 455 (1980). Moreover the sentence imposed must be the minimum punishment consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant. Commonwealth v. Edrington, supra ; 42 Pa.C.S.A. § 9721(b).

In the instant case the defendant was given probation twice for the same offense. The court had placed the defendant on probation initially, and also a second time when it permitted probation despite the defendant's first violation of probation by his conviction for a drug-related offense. In the instant violation of probation the court found the defendant's burglary of a drugstore indicated that he still had a problem with drugs and that he was not satisfactorily progressing in the drug program. In these circumstances we cannot say that the judge abused his discretion by failing to follow the recommendation of drug counselors that the defendant continue in the program, and by implication, be free from imprisonment; the judge was not obliged to follow the counselors' recommendation.

Order affirmed.


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