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COMMONWEALTH PENNSYLVANIA v. JAMES A. BROADIE (03/01/85)

filed: March 1, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES A. BROADIE, JAMES H. BROADIE, JAMES BROADIE, APPELLANT



No. 00716 Pittsburgh, 1983, Appeal from the Judgment of Sentence of the Court of Common Pleas, Allegheny County, Criminal Division, at Nos. 8207468A/8207470A, 8209700A/8209701A and 8209703A.

COUNSEL

John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Wickersham, Brosky and Roberts, JJ.

Author: Brosky

[ 339 Pa. Super. Page 397]

This appeal is from the judgment of sentence imposed after appellant pled guilty to five counts of robbery and three counts of criminal conspiracy. Appellant contends that: (1) the double jeopardy clause of the United States Constitution was violated when the trial court increased his sentence; (2) the trial court erred by basing the increase in his sentence on uncorroborated statements by the prosecution; and (3) the trial court erred by increasing his sentence without a showing of any change in circumstances. We disagree with appellant, and, accordingly, affirm the judgment of sentence.

On March 21, 1983, appellant pled guilty to five counts of robbery and three counts of criminal conspiracy. He was sentenced to five concurrent terms of five to ten years imprisonment on May 10, 1983. The Commonwealth on May 12, 1983, filed a petition to reconsider the sentence. Following a hearing on the petition on May 19, 1983, the sentencing court vacated one of the concurrent sentences and made it consecutive to the other four sentences. Appellant did not file a motion to modify the new sentence. This appeal timely followed.

All of appellant's claims involve the propriety of the sentence imposed on May 19, 1983. We note that the

[ 339 Pa. Super. Page 398]

Commonwealth contends that all sentencing claims other than those involving the legality of the sentence have been waived by appellant's failure to file a motion to modify sentence under Pa.R.Crim.P. 1410.

Pa.R.Crim.P. 1410 requires that a motion to modify sentence be filed with the sentencing court within ten days after imposition of sentence. Failure to file such a motion waives all sentencing issues, except those involving the legality of the sentence. See Commonwealth v. Warden, 335 Pa. Super. 315, 484 A.2d 151 (1984); Commonwealth v. Fortune, 305 Pa. Super. 441, 451 A.2d 729 (1982). The purposes of this rule are to give the trial court the first opportunity to modify sentence and to give the appellate court the benefit of the trial court's views. Commonwealth v. Anderson, 304 Pa. Super. 476, 450 A.2d 1011 (1982).

The question that presents itself instantly is whether a second Rule 1410 motion must be filed if a party wishes to challenge a sentence that has already been modified pursuant to Rule 1410. This question could arise if a party is dissatisfied with a sentence that was modified pursuant to its own motion or, as in the instant case, pursuant to a motion by the other party. In either case, although Rule 1410 makes no express provision for the filing of an additional motion, we believe the purposes behind the rule require such a construction.

A modified sentence constitutes a new sentence from the date of which the time for filing a notice of appeal will begin to run anew. See Pa.R.Crim.P. 1410 (comment). The same reasons that supported the filing of a modification motion in regard to the original sentence support the filing of such a motion for the new sentence. If the party who filed the original motion is still dissatisfied with the sentence, a second motion gives the sentencing court the first opportunity to modify the new sentence. ...


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