No. 447 January Term, 1979, Appeal from the Judgment of the Superior Court (October Term, 1978, No. 1924) Affirming the Judgment of Sentence at Information No. 718, August Term, 1975, of Philadelphia County, Court of Common Pleas, Criminal Division
John W. Packel, Chief, Appeals Div., Asst. Public Defender, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Maxine Stotland, Asst. Dist. Atty., for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ.
On July 18, 1975, appellant, Raymond Pierce, was arrested in connection with the robbery of Dr. Jeffrey Myers. On
January 2, 1976, appellant entered a guilty plea to the robbery charge before the Honorable Berel Caesar, who deferred sentencing pending a pre-sentence evaluation. On February 20, 1976, Judge Caesar sentenced appellant to eleven and one-half to twenty-three months imprisonment to be followed by eight years probation.*fn1 Appellant was paroled after he served the minimum prison term, and successfully completed parole on November 7, 1977. On June 7, 1978, while serving his eight year probationary term, appellant was convicted of another crime. On June 29, 1978, a probation revocation hearing was held before Judge Caesar, and as a result of his conviction of a crime committed while on probation, appellant's probation was revoked and a sentence of four to eight years imprisonment was imposed. The Superior Court affirmed the lower court's judgment of sentence, Commonwealth v. Pierce, 273 Pa. Super. 626, 422 A.2d 1164 (1979),*fn2 and this Court granted allocatur.
Appellant contends that the revocation of his probation and imposition of incarceration after his completion of eleven and one-half to twenty-three month term of imprisonment violates the Sentencing Code, 18 Pa.C.S.A. § 1301 et seq.*fn3 and the double jeopardy provision of the Fifth Amendment of the Constitution of the United States. Based on its prior decision in Commonwealth v. Nickens, 259 Pa. Super. 143, 393 A.2d 758 (1978), the Superior Court held that revocation of probation after completion of a previous term of imprisonment is authorized by the Sentencing Code and does not violate the Fifth Amendment double jeopardy clause. We agree.
18 Pa.C.S.A. § 1321(a) states:
General rule. -- In determining the sentence to be imposed the court shall, except where a mandatory minimum sentence is otherwise provided by law, consider and select one or more of the following ...