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.
[ 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 ...