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COMMONWEALTH PENNSYLVANIA v. ALEXANDER J. BOGDEN (06/05/87)

filed: June 5, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
ALEXANDER J. BOGDEN, JR., APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Greene County at No. 1 Criminal Session 1986.

COUNSEL

David F. Pollock, Waynesburg, for appellant.

Charles J. Morris, District Attorney, Waynesburg, for Com., appellee.

Cavanaugh, Popovich and Montgomery, JJ. Montgomery, J., concurs in the result.

Author: Popovich

[ 364 Pa. Super. Page 301]

This is an appeal from a judgment of sentence for driving under the influence of alcohol by the appellant, Alexander J. Bogden. We affirm.

On June 13, 1986, a jury found the appellant guilty of driving while intoxicated but not guilty of homicide by vehicle. No post-verdict motions were filed.

On June 24, 1986, the appellant was sentenced to one year less one day to two years less two days and fined $2,500. The next day, a Motion for Reconsideration of Sentence was filed and a hearing was conducted as a result thereof on July 1, 1986. Counsel for the appellant orally argued that (1) the sentence imposed exceeded the sentencing guidelines, (2) no pre-sentence report was ordered as required in

[ 364 Pa. Super. Page 302]

    first offense cases, as well as the absence of a contemporaneous statement as to the court's reasons for deviating from the Sentencing Guidelines, and (3) the fine was issued without inquiry into the appellant's ability to pay.

The appellant testified at the modification hearing concerning his age (60 years old), work history (coal miner for twenty-two years) and marital status (divorced). He also remarked about refraining from drinking and driving since the accident and regretting the loss of a life because of his actions.

Imprisonment at his age, offered the appellant, would impinge upon his ability to secure employment on his release from jail.

At the completion of the hearing, the court continued the appellant's bond and ordered a pre-sentence report to be prepared by the Greene County Probation Office.

On September 8, 1986, a second hearing on the appellant's Motion for Reconsideration of Sentence was held. Counsel for the appellant argued for the imposition of a sentence of probation in lieu of the one to two years imprisonment previously handed down.

The court, in consideration of the appellant's Motion, vacated its June 24, 1986 order imposing sentence and "resentenced" the appellant. In doing so, the court examined the appellant's financial circumstances in deciding to reinstate the $2,500 fine. Likewise, the court re-imposed the identical term of imprisonment as had been issued earlier.

Prior to the completion of the hearing, the appellant was advised of his rights to take exceptions to the sentence by filing a motion to that effect within ten days, and that an adverse ruling would have to be appealed within thirty days thereof to Superior Court.

No motion to modify the sentence was filed because of counsel's belief that:

[ 364 Pa. Super. Page 303]

    handed down in response to our first set of exceptions; therefore, the time has now begun to run for Mr. Bogden to decide whether or not to appeal.

To effectuate what transpired at the hearing, an order was issued on September 8, 1986 by the court vacating its June 24, 1986 sentence and imposing an identical sentence, but this time it was done with the benefit of a pre-sentence report. Also, an opinion in support of the sentence was filed on September 9 which responded to the allegations of impropriety as to the sentence. This was followed by ...


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