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COMMONWEALTH PENNSYLVANIA v. DAVID R. NIXON (05/04/84)

filed: May 4, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID R. NIXON, APPELLANT



No. 637 Pittsburgh, 1983, Appeal from Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Beaver County, No. 201 of 1981, 276 of 1981 and 370 of 1981.

COUNSEL

Dennis M. DiMartini, Monaca, for appellant.

Anthony J. Berosh, Assistant District Attorney, Beaver, for Commonwealth, appellee.

Wieand, Johnson and Hester, JJ.

Author: Wieand

[ 328 Pa. Super. Page 252]

David R. Nixon entered a plea of guilty to burglary and pleas of nolo contendere to two charges of escape. On the burglary charge, he was sentenced to serve a term of imprisonment for not less than two and one-half nor more than ten years and was ordered to make restitution. On the escape charges, he was sentenced to two concurrent terms of imprisonment for not less than two and one-half nor more than seven years to be served consecutively to the sentence for burglary. On direct appeal from the judgments of sentence,*fn1 Nixon argues that his sentences for escape were contrary to law and that the total time to be served was excessive. We conclude that one of the sentences for escape exceeded the maximum authorized by statute and must be vacated. In all other respects appellant's sentences are proper. His contention of excessiveness is lacking in merit.

[ 328 Pa. Super. Page 253]

The crime of escape is graded by Section 5121(d) of the Crimes Code, 18 Pa.C.S. ยง 5121(d), as follows:

(d) Grading. --

(1) An offense under this section is a felony of the third degree where:

(i) the actor was under arrest for or detained on a charge of felony or following conviction of crime;

(ii) the actor employs force, threat, deadly weapon or other dangerous instrumentality to effect the escape; or

(iii) a public servant concerned in detention of persons convicted of crime intentionally facilitates or permits an ...


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