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filed: December 18, 1981.


No. 1690 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Imposed on Bill of Information No. 1368 & 1370, May Session, 1974.


Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Hester, Shertz and Wieand, JJ.

Author: Shertz

[ 293 Pa. Super. Page 261]

Appellant, Juan Martinez, was convicted of Criminal Conspiracy,*fn1 Loitering and Prowling at Night*fn2 and Attempted Burglary.*fn3 On March 18, 1975, Appellant was sentenced to concurrent terms of probation of three years on Conspiracy -- Indictment No. 1368, one year on Loitering -- Indictment No. 1369 and five years on Attempted Burglary -- Indictment No. 1370. Appellant did not appeal this sentence.

On June 16, 1977, Appellant appeared before the lower court for a violation of probation hearing. The court terminated Appellant's probation on Bill No. 1369 and revoked his probation on Bill Nos. 1368 and 1370. Concurrent terms of three years probation, on Bill 1368 and 1370, were imposed. Appellant did not appeal this sentence.

On July 17, 1979, Appellant again appeared for a violation of probation hearing. Appellant's probation was revoked and consecutive terms of imprisonment of one to ten years on Bill Nos. 1368 and 1370 were imposed. This appeal followed.

In this appeal from his sentence for probation revocation, Appellant argues that the legality of his sentence is properly before this court either because his original sentence for his convictions of attempted burglary and criminal conspiracy

[ 293 Pa. Super. Page 262]

    was illegal and this issue cannot be waived or because trial counsel was ineffective for failing to object to Appellant's improper sentence for his conviction of both criminal conspiracy and attempted burglary.

Although Appellant failed to raise the issue of the illegality of sentence on direct appeal from his original sentence,*fn4 we will consider it at this time because it is not a waivable issue. Commonwealth v. Turner, 290 Pa. Super.Ct. 428, 434 A.2d 827 (1981); Commonwealth v. Welch, 291 Pa. Super.Ct. 1, 435 A.2d 189 (1981).

Instantly, Appellant was convicted and sentenced for criminal conspiracy and attempted burglary, a result clearly illegal under 18 Pa.Cons.Stat.Ann. ยง 906 (Purdon 1976).*fn5 See Commonwealth v. Jackson, 280 Pa. Super.Ct. 522, 421 A.2d 845 (1980); Turner, supra. Section 906 prohibits a conviction for more than one inchoate crime when the conduct engaged in is designed to end in the commission of only one crime. Here, Appellant's criminal conspiracy to commit burglary and his subsequent attempted burglary clearly constituted "conduct designed to culminate in the commission of the same crime" -- burglary. Section 906, supra; Turner, supra. Accordingly, Appellant should not have been sentenced for both attempt and conspiracy, but only for one or the other. We shall therefore vacate the judgments of sentence for attempt and conspiracy and remand the case to the lower court so that it may resentence Appellant for either attempt or conspiracy.*fn6 Jackson, 280 Pa. Super.Ct. at 524, 421 A.2d at 846.

[ 293 Pa. Super. Page 263]

Judgments of sentence vacated and case remanded for proceedings consistent with this opinion. Jurisdiction is not retained.

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