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COMMONWEALTH PENNSYLVANIA v. JASON MYSNYK (06/29/87)

filed: June 29, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
JASON MYSNYK, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Erie County, Criminal Division, at No. 600 of 1986.

COUNSEL

Jack E. Grayer, Bethlehem, for appellant.

Paul Susko, Assistant District Attorney, Erie, for Commonwealth, appellee.

Brosky, Johnson and Montgomery, JJ.

Author: Brosky

[ 364 Pa. Super. Page 264]

This appeal is from the judgment of sentence entered on July 9, 1986. Appellant was convicted in a bench trial of theft by unlawful taking. Appellant now contends: (1) that the sentence imposed below is violative of double jeopardy, and hence unlawful;*fn1 and (2) that the sentencing court abused its discretion in imposing a sentence within the aggravated range of the sentencing guidelines. Upon consideration of the arguments raised, we now affirm the judgment of sentence.

Appellant was arrested on February 11, 1986, for siphoning gasoline from a flatbed truck. At the time of the arrest, appellant was on parole and probation from two previous theft convictions. Appellant pled guilty to the current offense in the July 1, 1986 bench trial before Judge Connelly, and was sentenced on July 9,*fn2 1986, to six (6) to twelve (12) months confinement, which was to run concurrently

[ 364 Pa. Super. Page 265]

    to the sentence of probation imposed in 1984 on the conviction at bill of information No. 297.*fn3

On July 18, 1986, a hearing was held before President Judge Pfadt, who had sentenced appellant on the 1984 convictions. Judge Pfadt revoked appellant's parole for No. 296, and ordered that he serve the remainder of the original sentence of confinement. With respect to No. 297, Judge Pfadt revoked the order of probation, and sentenced appellant to a six (6) to twelve (12) month period of confinement, to run consecutively to the remaining confinement time on the sentence for No. 296.

Appellant's initial contention is that the revocation of parole and probation for the 1984 convictions illegally increased the 1986 sentence of confinement he was given by Judge Connelly, thereby violating his constitutional protection from double jeopardy. We disagree.

Appellant places reliance upon Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971). In Silverman, the Pennsylvania Supreme Court was faced with an unusual scenario, in which a trial judge, following the imposition of the defendant's sentence, had "second thoughts" about its leniency, and called the defendant into court once again to increase the sentence. Our Supreme Court determined this to be violative of double jeopardy, and based its rationale upon the landmark United States Supreme Court case of Ex Parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873). However, the U.S. Supreme Court abandoned the reading given Lange by the Silverman Court, in the later decision U.S. v. DiFrancesco, 449 U.S. 117, 101 ...


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