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COMMONWEALTH PENNSYLVANIA v. KEVIN PITTMAN (07/02/87)

decided: July 2, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
KEVIN PITTMAN, APPELLANT



Commonwealth's Brief in Support of an Order of the Superior Court of Pennsylvania, 01880 PHL 1984, filed July 19, 1985 affirming the the Order of the Court of Common Pleas of Lackawanna County of Walsh, J., Criminal No. 84 CR. 25, dated July 31, 1984. 348 Pa. Super. 634, 501 A.2d 293 (1985).

COUNSEL

Thomas P. Kennedy, David Cherundolo, Charles Witaconis, Scranton, John W. Packel, Benjamin Lerner, Leonard Sosnov, Philadelphia, for amicus -- Def. Assoc. of Phila.

Ernest D. Preate, Jr., Dist. Atty., for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., files a dissenting opinion which is joined by Papadakos, J.

Author: Flaherty

[ 515 Pa. Page 274]

OPINION OF THE COURT

The firearms-related mandatory sentencing provision of Pennsylvania's Sentencing Code provides that a person who visibly possessed a firearm during the commission of certain enumerated felonies shall be sentenced to at least five years of confinement, provided that after conviction but before sentencing the Commonwealth gives notice of its intention to proceed under the mandatory sentencing provision and the sentencing court determines that the mandatory sentencing provision is applicable. Act of Dec. 30, 1974, P.L. 1052, No. 345, § 1 as amended by Act of March 8, 1982, P.L. 169, No. 54, § 2, 42 Pa.C.S.A. § 9712.*fn1

[ 515 Pa. Page 275]

The issue presented in this case is whether a five year minimum sentence must be imposed pursuant to Section 9712 whenever an enumerated felony is committed with a firearm, or whether the mandatory minimum sentence provision of Section 9712 is applicable only when the Commonwealth gives notice of intent to proceed under the section.

On April 9, 1984 appellant Pittman pled guilty to robbery, 18 Pa.C.S.A. § 3701. Pursuant to the plea bargain agreement, the Commonwealth did not give notice that it intended to proceed under the mandatory sentencing provision, 42 Pa.C.S.A. § 9712. In fact, even though Pittman admitted at the guilty plea hearing that he aimed a gun at the victim, the Assistant District Attorney told the court that the Commonwealth was not requesting the court to impose the mandatory minimum sentence:

THE COURT: Now I don't see it listed here in the presentence report, but I'm sure this falls within the armed robbery mandatory provisions, I think, where you have to have a minimum of five years.

MR. WALKER [Assistant District Attorney]: It's up to the District Attorney's office to petition the Court for that, and I don't believe we did.

THE COURT: So the District Attorney is not requesting the five years?

MR. WALKER: No, Your Honor, we are not.

THE COURT: The legislature of the State of Pennsylvania came up with the law stating that if a weapon is used in an armed robbery, they said no matter what the judge thinks about it or anyone else, if it's requested by the District Attorney, that we have to send you to a minimum

[ 515 Pa. Page 276]

    of five years in prison. That's how strongly the state legislature feels about using a gun in the commission of a crime.

However, the District Attorney, of course, under their plea bargain arrangement said they would stand mute at sentencing, and have indicated that they have not requested the imposition of that penalty, and under that law, they have to request that imposition.

N.T. May 25, 1984, 7-8. On May 25, 1984 Pittman was sentenced to two-to-four years of imprisonment.

However, on June 1, 1984 the court, acting on its own motion, vacated its original sentence on the grounds that it did not conform to the mandatory sentencing provision of the Sentencing Code, and the court notified Pittman that the provisions of 42 Pa.C.S.A. § 9712 applied to his case. Apparently the court reconsidered its earlier understanding of Section 9712 and ultimately determined that whenever a defendant is convicted of an enumerated crime and a preponderance of evidence indicates also that he used a firearm in committing that crime, the mandatory provisions of Section 9712 require that he be sentenced to at least five years imprisonment, regardless of whether the Commonwealth requests that the mandatory minimum sentencing provision be invoked to impose sentence. Accordingly, on June 14, 1984, at a resentencing hearing, the court sentenced Pittman to five-to-ten years of imprisonment plus the cost of prosecution.

Petition for reconsideration of sentence was denied and thereafter an appeal was taken to Superior Court. On July 19, 1985 Superior Court affirmed the judgment of sentence. 348 Pa. Super. 634, 501 A.2d 293. Pittman then filed a petition for allowance of appeal to this Court and we granted allocatur.

Pittman's sole claim in this appeal is that his double jeopardy rights were violated when his original sentence was vacated and an increased sentence was substituted. Because of our disposition of the case, and because we will ...


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