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COMMONWEALTH PENNSYLVANIA v. DAVID V. THOMAS (07/02/82)

filed: July 2, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID V. THOMAS, APPELLANT



No. 1381 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Pennsylvania, Criminal Division at Nos. 1763, 1764, 1765, 1777, 1845, 1838, 1873 and 1902, March Term, 1979 and Nos. 2138 and 2142, December Term, 1979.

COUNSEL

Colie B. Chappelle, Philadelphia, for appellant.

Michelle G. Lehr, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wickersham, McEwen and Popovich, JJ.

Author: Popovich

[ 301 Pa. Super. Page 334]

Appellant, David Thomas, entered pleas of guilty to seven counts of forgery, two counts of theft by deception, and one count of criminal conspiracy. No petition to withdraw the guilty pleas was filed, and appellant was sentenced to concurrent terms of imprisonment of not less than two years nor more than five years on each count. The court also indicated that it would consider appellant for a work release program upon presentation by the prison authority.

Subsequently, appellant filed a timely petition to reconsider his sentence which was denied. This appeal followed.

On appeal, appellant raises four issues concerning the legality of his sentence. He contends that the sentence was illegal: (1) due to the fact that it was based upon an impermissible sentencing factor (i.e., retribution); (2) since it was based upon vague and insufficient information; (3) because the trial court failed to provide a written statement of reasons for deviating from the Sentencing Code, 42 P.C.S.A. ยง 9721 et seq. ; and, (4) because the trial court improperly applied the applicable sentencing guidelines. Appellant also contends that his notice of appeal was filed timely because counsel complied with the instruction given by the trial court in open court. For the reasons herein stated, the judgment of sentence is affirmed.

Initially, this Court must respond to the prosecution's contention that the appeal should be quashed because it was filed untimely.

The facts pertinent to this aspect of the appeal are undisputed and reveal the following:

[ 301 Pa. Super. Page 335]

On April 15, 1980, appellant's sentence was imposed. A timely petition to reconsider appellant's sentence was filed. The trial court denied appellant's petition on May 9, 1980. Appellant then filed a notice of appeal on June 6, 1980, which was less than thirty days after the court denied appellant's reconsideration petition but more than thirty days from the date on which the judgment of sentence was imposed.

On October 31, 1980, the prosecution petitioned this Court to quash appellant's appeal as untimely filed. However, this Court denied the prosecution's petition without prejudice to argue the issue on appeal. Additionally, appellant's ...


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