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filed: February 8, 1985.


No. 458 Harrisburg, 1983, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Cumberland County, No. 258 Criminal 1983.


Charles D. Daugherty, Carlisle, for appellant.

Theodore B. Smith, III, Carlisle, for Commonwealth, appellee.

Wickersham, Wieand and Hester, JJ.

Author: Wieand

[ 338 Pa. Super. Page 561]

William C. Rainey was convicted by a jury of having weapons or implements of escape in his possession while an inmate at the State Correctional Institution at Camp Hill.*fn1 He was sentenced to serve a consecutive sentence of imprisonment for not less than three nor more than twenty-six months. Both Rainey and the Commonwealth filed petitions requesting the court to reconsider the sentence. Upon doing so, the court determined that it had deviated from the sentencing guidelines without good cause.*fn2 Therefore, the

[ 338 Pa. Super. Page 562]

    court imposed an increased prison sentence of not less than six nor more than thirty months.*fn3 On appeal, Rainey argues that the increased sentence violated principles of double jeopardy. We disagree and, accordingly, affirm the judgment of sentence.

In United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), the Supreme Court of the United States considered a double jeopardy argument directed against provisions of the Dangerous Special Offenders Act, 18 U.S.C. § 3575 et seq., which permitted government appeals from sentences deemed too lenient. The Court held that the "Double Jeopardy Clause does not require that a sentence be given a degree of finality that prevents [review and] later increase."*fn4 Id. at 137, 101 S.Ct. at 437, 66 L.Ed.2d at 346. In so doing, the Court rejected contrary language in Ex Parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874) and United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931), to the effect that double jeopardy principles precluded a subsequent increase in a sentence already imposed.

Pa.R.Crim.P. 1410 makes provision for the Commonwealth to file a post-sentencing motion to modify a sentence. The allowance by the court of a modification petition filed by the Commonwealth is not proscribed by double jeopardy principles. Commonwealth v. Anderson, 304 Pa. Super. 476, 482, 450 A.2d 1011, 1014 (1982). "[N]o sentence," said the Court in Anderson, "is final until the right of appellate review has been exhausted or waived." Id. Thus, double jeopardy principles do not prevent a sentencing

[ 338 Pa. Super. Page 563]

    court from correcting, modifying, or increasing a sentence which the same court previously imposed. See: Commonwealth v. Adams, 333 Pa. Super. 312, 482 A.2d 583 (1984).

In Commonwealth v. Bossche, 324 Pa. Super. 1, 471 A.2d 93 (1984), the defendant had entered pleas of guilty to charges of theft by deception and writing bad checks. He affirmatively represented to the court that the offenses to which he was pleading constituted first convictions. The trial court, therefore, imposed a sentence of probation. Later the same day, the Commonwealth filed a petition to reconsider the sentence and, during a hearing on the following day, established that defendant had previously entered three separate guilty pleas to similar charges. The trial court then modified the sentence and imposed a sentence of imprisonment for not less than one nor more than two years. On direct appeal, this Court held that the increased sentence did not violate the defendant's double jeopardy rights. "[T]he prohibition against multiple punishment . . . is inapplicable when the sentencing guideline is explicit and any sentence imposed thereunder is specifically subject to prosecutorial appeal." Id., 324 Pa. Superior Ct. at 6, 471 A.2d at 95, quoting Commonwealth v. Love, 295 Pa. Super. 276, 284-285, 441 A.2d 1230, 1234 (1982)*fn5 (Hoffman, J., concurring).

In Pennsylvania, the Sentencing Code, at 42 Pa.C.S. § 9781(a) and (b), specifically provides for a prosecution appeal from an inappropriate sentence. Pa.R.Crim.P. 1410 requires, however, that the sentencing court must first be given an opportunity to reconsider any sentence which the prosecution alleges to be inappropriate. An inappropriate sentence may be modified thereafter without offending constitutional principles of double jeopardy.

The judgment of sentence is affirmed.

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