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.
[ 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. § 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 ...