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COMMONWEALTH PENNSYLVANIA v. JAMES TOLASSI (08/13/82)

filed: August 13, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES TOLASSI, JAMES SHIRLEY, ROBERT LAYTON, JR., JOSEPH TAYLOR, RICHARD MCCLAIN, JACK YOCUM, JOSEPH O'BRIEN, MICHAEL DOLINSKI, MICHAEL O'BRIEN, MAX HINKEL, III, AND RUSS COLUMBO, APPELLANTS



Nos. 2517 - 2527 PHILADELPHIA, 1980, Appeal from the Order of the Court of Common Pleas, Criminal Division of Montgomery County at No. 663 October Term 1972.

COUNSEL

Robert F. Simone, Philadelphia, for appellants.

David M. McGlaughlin, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Spaeth, Montgomery and Lipez, JJ.

Author: Spaeth

[ 303 Pa. Super. Page 178]

These appeals are from orders dismissing appellants' petitions to vacate their sentences as illegal. We affirm.

Appellants were tried together in 1974 on charges arising from a labor dispute. Eight of them were convicted of rioting, malicious destruction of fences, and conspiracy; the remaining three -- appellants Tolassi, Dolinski, and Michael O'Brien -- were convicted of rioting and conspiracy but acquitted of malicious destruction of fences. The eight were each sentenced as follows: for rioting, one to three years imprisonment, $1,000 fine, and one-eleventh of the costs of

[ 303 Pa. Super. Page 179]

    prosecution; for malicious destruction of fences, three to six months imprisonment, concurrent with the term of imprisonment for rioting, $50 fine, and one-eleventh of the costs of prosecution; and for conspiracy, two years probation, to follow the term of imprisonment, $500 for the use of the county, to be paid during the first three months of the probationary period, and one-eleventh of the costs of prosecution. The three were each sentenced, for rioting, to nine months to two years imprisonment, $1,000 fine, and one-eleventh of the costs of prosecution for rioting, and for conspiracy, to two years probation, to follow the term of imprisonment, $500 for the use of the county, to be paid during the first three months of the probationary period, and one-eleventh of the costs of prosecution.

On direct appeal the judgments of sentence were affirmed by this court and the Supreme Court. Commonwealth v. Tolassi, 258 Pa. Superior Ct. 194, 392 A.2d 750 (1978), aff'd, 489 Pa. 41, 413 A.2d 1003 (1980). On direct appeal, appellants did not challenge the propriety or legality of their sentences. However, within a matter of weeks after the record of their cases was returned by the Supreme Court to the lower court, and two days after they began serving their sentences, they filed petitions to vacate the sentences as illegal. These appeals are from the lower court's orders dismissing those petitions.

Appellants argue that their sentences are illegal because the lower court did not order pre-sentence reports or state of record its reasons for not doing so; because the sentences are uniform instead of individual, that is, appellants convicted of the same crimes received the same sentences, without reference to differences in their individual backgrounds; and because the lower court did not state of record its reasons for the sentences. We find no merit in these arguments.

It is true that under current law, when incarceration for one year or more is a possible sentence the lower court must state of record its reasons for not ordering a pre-sentence report. ...


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