NO. 80-3-621, Appeal from the February 29, 1980 Judgment of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, Imposed on Indictment 1166, July Session, 1970
John W. Packel, Chief, Appeals Div., Elaine DeMasse, Asst. Defender, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Stuart Haimowitz, Philadelphia, for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, J., files a concurring opinion in which Larsen and Zappala, JJ., join.
Appellant directly appeals a 1980 judgment of sentence of 1 1/2 to 5 years imposed by Philadelphia Court of Common Pleas (Durham, J.) for a probation violation on his 1971 sentence for voluntary manslaughter.*fn1 Appellant, represented by the Defender Association of Philadelphia, contends the Department of Corrections erroneously interpreted his sentence on the probation violation to run consecutive to his 1977 sentence for burglary and assault despite the
absence of any language to that effect in the written sentence endorsed on the bill. The District Attorney contends the clear intention of the sentencing judge should prevail despite Pa.R.Crim.P. 1406(c), which provides that sentences not expressly said to be consecutive are concurrent. Since appellant has incorrectly challenged the Department of Corrections' interpretation of his sentence by way of a direct appeal the appeal is dismissed without prejudice to appellant's right to raise the issue against the proper parties in a habeas corpus proceeding.*fn2
In 1970 Judge Cavanaugh convicted appellant of voluntary manslaughter and unlawfully carrying a firearm without a license. His sentences were one to two years (precisely 363 days to 729 days) on the weapons conviction, followed by twelve years probation on the manslaughter.*fn3 In 1977, while on this probation, appellant was arrested and charged with robbery and simple and aggravated assault. Philadelphia Common Pleas (Lord, J.) found him guilty of attempted robbery and aggravated assault following a bench trial and, after denying post-trial motions sentenced him to concurrent terms of five to ten years imprisonment on March 9, 1978. The minimum date on that sentence was March 9, 1983.
On March 21, 1978 appellant came before Judge Cavanaugh for a hearing on the probation violation resulting from his 1977 conviction. At his request that hearing was continued pending resolution of his appeal from the 1977 judgment of sentence imposed by Judge Lord on the 1977 charges. That continuance was granted upon appellant's agreement not to raise the requirement applying to probation violation hearings under Pa.R.Crim.P. 1409 that "a hearing be held as speedily as possible." In May, 1979
Superior Court affirmed the judgment of sentence imposed by Judge Lord. Commonwealth v. Isabell, 268 Pa. Superior ...