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submitted: June 22, 1984.


No. 266 Harrisburg, 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lebanon County, Criminal at Nos. 37, 51 and 52 of 1982.


John C. Tylwalk, Assistant Public Defender, Lebanon, for appellant.

John E. Feather, Jr., Assistant District Attorney, Lebanon, for Com., appellee.

Del Sole, Popovich and Roberts, JJ. Roberts, J., files a dissenting opinion.

Author: Popovich

[ 332 Pa. Super. Page 402]

This is an appeal by the appellant, Charles R. Horst, Sr., from the aggregate sentence of two to ten years entered on July 6, 1982, following a negotiated plea of guilty to theft by deception, issuance of a bad check, attempted homicide, unlawful restraint and criminal conspiracy. We reverse.

Appellant's sole contention on appeal concerns the lower court's "out of hand" denial of his motion to modify sentence for failing to set forth therein "reasons" warranting reconsideration.

[ 332 Pa. Super. Page 403]

A review of the record indicates that the appellant filed a written motion on July 16, 1982, the last day under Pa.R.Crim.P. 1410. "Because he was transferred to the State Correctional Institution at Camp Hill just two days after sentencing [the appellant] claim[ed] he was unable to tell his legal counsel what reasons to insert in his motion. Thus, he asked[,] in effect, for leave to file reasons late. [The lower court] refused his motion . . . ." (Lower Court Opinion at 2-3) The lower court did so because it perceived no provision in the law or in any rule which permitted the granting of an extension to the appellant beyond the 10-day period fixed in Rule 1410.

We believe that the lower court gives an overly strained reading to a Rule which merely requires that, in effectuating its purpose of affording the court below the first opportunity to modify a sentence, a motion be filed within 10 days after sentence. This is exactly what occurred here.

We fail to perceive how appellant's request for an "extension" in his motion, without the presentation of any reasons therein justifying a modification of the sentence, somehow did violence to, or perverted the objective sought by, the Rule. In other words, we find that the lower court could have very easily set a period within which the motion to modify could have been ruled upon and still have avoided any jurisdictional time constraints. See Pa.R.App.P. 1701. Such action would have comported with the intent of the Rules of Criminal Procedure to achieve "simplicity in procedure" and "fairness in administration" of justice, without any undue delay. See Pa.R.Crim.P. 2; 1 Pa.C.S.A. ยง 1921(c)(6).

The cases are too numerous to cite in which the Commonwealth's petitions for an extension under Pa.R.Crim.P. 1100 have been filed on the 180th day, with a hearing on said petition held days or even weeks after the run-date. Yet, there has never been a requirement engrafted upon Rule 1100 precluding a review of such timely petitions absent a showing of prejudice on the part of the accused.

[ 332 Pa. Super. Page 404]

    appellant's motion was a request for entry of a proposed order stating:

"If [reasons for the motion to modify] are not set forth in detail on or before the ___ day of ___, 1982, it will be assumed by the Court that the Defendant no longer wishes to pursue said motions."

Appellant alleged that because of his transfer to a state correctional facility two days after sentencing, he was unable to convey his reasons for challenging the sentence to counsel. The sentencing court found this allegation to be incredible and summarily dismissed the motion for an extension.

The record reveals ample support for the sentencing court's determination that appellant was not, in fact, unable to convey to counsel his reasons for objection to the judgment of sentence. This determination alone, which the majority has overlooked, requires that appellant be denied relief.

More importantly, however, Pa.R.Crim.P. 1410 expressly mandates that a motion to modify a sentence "shall be filed with the sentencing court within ten (10) days after imposition of sentence," which was not done in this case. As is explained in the Comment to Rule 1410, the Rule is designed to afford the sentencing court "the first opportunity to modify the sentence" within the confines of existing practice, pursuant to which "the sentencing court is likely to have only thirty days from the imposition of sentence within which to act to modify the sentence." The Rule is not designed, as appellant would now design it, to permit the finality of a judgment of sentence to be delayed, and the orderly appellate process disrupted, for as long as it takes the complaining party to decide to gather objections to a judgment of sentence which by their very nature are not at all difficult to identify in the first instance.

Under the Rules, a motion to modify sentence must be filed within 10 days of judgment. That was not done in this case, and the judgment of sentence should be affirmed.


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