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COMMONWEALTH PENNSYLVANIA v. MICHAEL MILLER (11/05/86)

filed: November 5, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
MICHAEL MILLER, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 81-06-2230, 2232, 2234 and 2235.

COUNSEL

Leonard N. Sosnov, Assistant Public Defender, Philadelphia, for appellant.

Kathleen A. McDonnell, Assistant District Attorney, Philadelphia, for Com., appellee.

Wieand, Beck and Johnson, JJ.

Author: Wieand

[ 358 Pa. Super. Page 222]

Having entered pleas of guilty to robbery and aggravated assault, Michael Miller was sentenced to serve concurrent terms of imprisonment for not less than six months nor more than twenty-three months and was placed on immediate parole. He was also sentenced to serve two probationary terms of five years each for unlawful restraint and possession of an instrument of crime. The probation was to commence upon completion of the sentences for robbery and assault and be consecutive thereto. While appellant was on parole but before the probationary period had commenced, he committed new offenses which included assault, recklessly endangering another person, possession of an instrument of crime and prostitution. Because of convictions on these new charges, Miller's parole and probation were revoked. He was ordered to serve the balance of his sentence of imprisonment for robbery and assault and was sentenced to serve consecutively two terms of imprisonment for not less than two and one-half years nor more than five years on the convictions for unlawful restraint and possession of an instrument of crime. On appeal, Miller concedes that he violated his parole but contends that the court erred in revoking his probation and imposing a sentence of imprisonment in lieu thereof. He could not have violated his probation, he argues, because he was not on probation when the new offenses were committed. He also argues that the new sentence violated principles of double jeopardy. We reject appellant's arguments and affirm the judgment of sentence.

Under similar circumstances, this Court held in Commonwealth v. Dickens, 327 Pa. Super. 147, 475 A.2d 141 (1984)*fn1 that "[t]he fact that appellant had not commenced serving probation when the new offense occurred did not prevent the court from revoking its prior order placing appellant on probation." Id., 327 Pa. Superior Ct. at 152, 475 A.2d at 144. The reason for the rule was explained in Commonwealth v. Wendowski, 278 Pa. Super. 453, 420 A.2d 628 (1980), where this Court said:

[ 358 Pa. Super. Page 223]

If, at any time before the defendant has completed the maximum period of probation, or before he has begun service of his probation, he should commit offenses of such nature as to demonstrate to the court that he is unworthy of probation and that the granting of the same would not be in subservience to the ends of justice and the best interests of the public, or the defendant, the court could revoke or change the order of probation. A defendant on probation has no contract with the court. He is still a person convicted of crime, and the expressed intent of the Court to have him under probation beginning at a future time does not "change his position from the possession of a privilege to the enjoyment of a right." Burns v. United States, 287 U.S. 216, 222, 53 S.Ct. 154, 156, 77 L.Ed. 266, 269 (1932).

Id., 278 Pa. Superior Ct. at 456, 420 A.2d at 630 (emphasis in original), quoting James v. United States, 140 F.2d 392, 394 (5th Cir.1944) (Waller, J., concurring). See also: Commonwealth v. Vivian, 426 Pa. 192, 231 A.2d 301 (1967); United States ex rel. Sole v. Rundle, 435 F.2d 721 (3rd Cir.1971); Annot., 22 A.L.R. 4th 755 (1983).

Appellant argues that both Dickens and Wendowski were incorrectly decided and that they should be re-examined in light of 42 Pa.C.S. ยง 9771(d), which provides:

Hearing required -- There shall be no revocation or increase of conditions of sentence under this section except after a hearing at which the court shall consider the record of the sentencing proceeding together with evidence of the conduct of the defendant while on probation. Probation may be eliminated or the term decreased without a hearing.

The purpose of this section of the statute is to require a hearing before a court revokes probation. It does not suggest that Dickens and Wendowski were incorrectly decided or that the holdings thereof should be overruled or ...


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