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submitted: February 24, 1984.


No. 317 Harrisburg, 1983, Appeal from the PCHA of July 14, 1983 in the Court of Common Pleas of Franklin County, Criminal Division, No. 467 of 1970


Blake E. Martin, Public Defender, Chambersburg, for appellant.

John F. Nelson, Assistant District Attorney, Chambersburg, for Commonwealth, appellee.

Spaeth, President Judge, and Cirillo, and Cercone, JJ.

Author: Per Curiam

[ 333 Pa. Super. Page 459]

This is an appeal from an order dismissing, after a hearing, appellant's petition filed under the Post Conviction Hearing Act. 42 Pa.C.S.A. § 9541 et seq. On appeal appellant raises several issues, only one of which is properly before us.

Appellant first argues that the sentence imposed was illegal. On March 17, 1971, the defendant was sentenced to a period of incarceration of ten (10) years flat; no minimum being stated. Appellant contends that he is entitled to resentencing at which time both a minimum and maximum sentence must be stated on the record.

At the time of sentencing 19 P.S. § 1057 controlled the sentencing and provided, in part:

Whenever any person, convicted in any court of this Commonwealth of any crime punishable by imprisonment in a state correctional penitentiary, shall be sentenced to imprisonment therefor in any penitentiary or other institution of this state . . ., the court, instead of pronouncing upon such convict a definite or fixed term of imprisonment, shall pronounce upon such convict sentence of imprisonment for an indefinite term: stating in such sentence the minimum and maximum limits thereof; and the maximum limit shall never exceed the maximum time

[ 333 Pa. Super. Page 460]

    now for such offense; and the minimum limit shall never exceed one-half of the maximum sentence prescribed by any court.

The sentencing court found that Commonwealth v. Ulbrick, 462 Pa. 257, 341 A.2d 68 (1975) was "factually on all fours" with the current controversy. In both Ulbrick and the current case the defendant was sentenced to serve a "flat" sentence. The Supreme Court, in Ulbrick, by Per Curiam Opinion, held that a minimum of one day could be presumed from the imposition of the flat sentence and accordingly, resentencing was not necessary.*fn1

Appellant however argues that this case should be controlled by Commonwealth v. Craig, 311 Pa. Superior Ct. 533, 457 A.2d 1310 (1983); Commonwealth v. Shoemaker, 303 Pa. Superior Ct. 242, 449 A.2d 669 (1982);*fn2 and Commonwealth v. Aeschbacher, 276 Pa. Superior Ct. 554, 419 A.2d 596 (1980).*fn3 In all three cases a flat sentence was imposed in spite of the sentencing code, 42 Pa.C.S.A. § 9756(b) (formerly 18 Pa.C.S.A. § 1356(b)) which reads:

"MINIMUM SENTENCE. -- The court shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence imposed."

In those cases we held that the failure to state, on the record, a definite minimum required resentencing.

These two separate lines of cases demonstrate that while resentencing is required under the current sentencing code where a court fails to state a minimum, such is not

[ 333 Pa. Super. Page 461]

    required under the old sentencing statute pursuant to which this appellant was sentenced. In spite of the criticism of Ulbrick, supra, offered by both Justice Pomeroy's concurring opinion in Ulbrick and that offered by our court in Aeschbacher, supra, Ulbrick remains controlling precedent. Therefore, we are bound by such and we hold that resentencing is not required as the minimum sentence is presumed to be one day.

Appellant's remaining contentions were not raised in his petition or before the lower court. Instead, appellant raised them, of record,*fn4 for the first time in his pro se notice of appeal.*fn5 Counsel incorporated the additional contentions into his Rule 1925(b), Pa.R.A.P., statement.*fn6

It is axiomatic that neither a trial court nor an appellate court may consider issues which are not properly presented in a PCHA petition. Commonwealth v. Carrier, 494 Pa. 305, 308 n. 3, 431 A.2d 271, 273 n. 3 (1981); Commonwealth v. Zillgitt, 489 Pa. 189, 192 n. 3, 413 A.2d 1078, 1079 n. 3 (1980); Commonwealth v. Stokes, 294 Pa. Superior Ct. 529, 440 A.2d 591 (1982); Commonwealth v. Stanton, 294 Pa. Superior Ct. 516, 440 A.2d 582 (1982). As appellant attempts to raise here, on appeal, issues not

[ 333 Pa. Super. Page 462]

    previously directed to the hearing court, we may not review the remaining contentions.*fn7

Order affirmed.

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