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COMMONWEALTH PENNSYLVANIA v. JOSEPH NIXON (03/18/83)

SUPERIOR COURT OF PENNSYLVANIA


filed: March 18, 1983.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
JOSEPH NIXON

No. 2310 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, Nos. 1432-35 January Term, 1980

COUNSEL

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Kalvin Kahn, Philadelphia, for appellee.

Spaeth, Montgomery and Lipez, JJ.

Author: Lipez

[ 311 Pa. Super. Page 452]

This is a Commonwealth appeal under section 5 of Act 319,*fn1 which provides for interim sentencing guidelines, pending adoption of guidelines by the Pennsylvania Commission on Sentencing.*fn2 Section 5(a)*fn3 of Act 319 provides a guideline sentence of at least four to eight years imprisonment for certain specified offenses, if the defendant has been previously convicted of any of the specified offenses. Section 5(b) requires that, if the sentence deviates from the section 5(a) guideline, "the court shall provide a contemporaneous written statement of the reason or reasons for the sentence."

[ 311 Pa. Super. Page 453]

Defendant pled guilty to several charges, one of which (No. 1434) is specified in section 5(a), "aggravated assault as defined by 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) involving the use of a firearm." At the sentencing hearing on September 9, 1980, the prosecutor claimed that defendant's prior aggravated assault conviction made Act 319 applicable. The judge refused to consider this claim, and imposed a two to five year sentence for aggravated assault, without stating any reasons.

At a hearing to reconsider the sentence on September 29, 1980, the judge did state reasons for the sentence.*fn4 He also purported to "reimpose" the two to five year sentence for aggravated assault, as well as the sentences which had been originally imposed on September 9 for the other offenses, although none of the sentences had ever been vacated. On October 9, 1980 the Commonwealth took this appeal.*fn5

Defendant contends that the appeal by the Commonwealth violates the double jeopardy clauses of both the United States and Pennsylvania Constitutions. We reject this contention for the reasons stated in Commonwealth v. Love, 295 Pa. Super.Ct. 276, 281-87, 441 A.2d 1230, 1232-36 (1982) (concurring opinion by Hoffman, J., joined by Cirillo, J.).*fn6

[ 311 Pa. Super. Page 454]

However, we do not review the merits of the Commonwealth's claim that the sentence was "unreasonable" under section 5(e)(3) of Act 319, because we find the issue waived. This court en banc has held unanimously that to preserve a claim under Act 319, the Commonwealth must file a motion to modify sentence in accordance with Pennsylvania Rule of Criminal Procedure 1410. Commonwealth v. Anderson, 304 Pa. Super.Ct. 476, 450 A.2d 1011 (1982).*fn7 There is no such motion contained in the record certified to this court under Rule of Appellate Procedure 1921, and

[ 311 Pa. Super. Page 455]

    there is no lower court docket entry indicating the filing of a motion to modify sentence by the Commonwealth.

The transcript of the September 29 sentencing reconsideration hearing contains a statement by the judge that a motion had been handed to him ten days after the September 9 sentencing hearing. What we have said with respect to post-verdict motions is equally applicable to motions to modify sentence:

[L]eaving motions in the judge's chambers, or even handing a copy to the judge in the courtroom or elsewhere, does not constitute filing. A document in any criminal matter must be filed in the office of the clerk of courts, 42 Pa.C.S. § 2756(a), who in Philadelphia is known as the Clerk of Quarter Sessions. 42 Pa.C.S. § 2751(c).

Commonwealth v. Lynch, 304 Pa. Super.Ct. 248, 252, 450 A.2d 664, 666 (1982), rearg. den'd. Thus the alleged motion referred to by the court below was never "filed in the lower court" within the meaning of Rule 1921, and is not part of the record on appeal.*fn8 We may therefore not consider it, because "'in Commonwealth v. Quinlan, 488 Pa. 255, 258, 412 A.2d 494, 496 (1980), our Supreme Court has unanimously condemned consideration by an appellate court of material outside the record.'" Commonwealth v. Lynch, supra 304 Pa. Super. at 255, 450 A.2d at 668, quoting Commonwealth v. Rini, 285 Pa. Super.Ct. 475, 483, 427 A.2d 1385, 1389-90 (1981) (footnote omitted). Since the Commonwealth filed no motion under Rule of Criminal Procedure 1410, its claim under Act 319 is waived. Commonwealth v. Anderson, supra. Therefore the judgment of sentence for aggravated assault (No. 1434) must be affirmed.

On its notice of appeal, the Commonwealth also listed the information numbers (Nos. 1432, 1433 and 1435) for the

[ 311 Pa. Super. Page 456]

    defendant's other offenses, as to which Act 319 gives the Commonwealth no right to appeal the sentence. Since those judgments of sentence are not appealable by the Commonwealth, the appeal will be quashed as to them.*fn9

Judgment of sentence for aggravated assault (No. 1434) affirmed; appeal quashed as to judgments of sentence for Nos. 1432, 1433 and 1435.


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