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COMMONWEALTH PENNSYLVANIA v. MARY JANE MISER (11/16/87)

filed: November 16, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
MARY JANE MISER, APPELLANT



Appeal from the Judgment of Sentence entered March 26, 1986 in the Court of Common Pleas of Clearfield County, Criminal Division, No. 77-904-CRA.

COUNSEL

John R. Ryan, Clearfield, for appellant.

Joseph A. Curcillo, III, Clearfield, Assistant District Attorney, for Com.

Brosky, Tamilia and Kelly, JJ.

Author: Kelly

[ 368 Pa. Super. Page 312]

Appellant, Mary Jane Miser, appeals from an order dated March 26, 1986 revoking probation and sentencing appellant to incarceration for a period of five to ten years. We vacate judgment of sentence and remand.

Appellant was charged and plead guilty to criminally conspiring to violate the Controlled Substance, Drug, Device and Cosmetic Act. 35 Pa.S.A. § 780-113(a)(30). The maximum penalty for such offense is five years incarceration. Appellant was sentenced on May 15, 1978 to a term of three years probation.

Appellant's probation was revoked on February 15, 1979, upon a finding that she had violated the terms of her probation by committing a subsequent violation of the Act. She was resentenced on June 25, 1979 to a term of ten years probation. On February 20, 1985, appellant was charged with a third violation of the Controlled Substance Act. On February 25, 1986, appellant, acting pro se, filed a motion to modify and/or vacate sentence of June 25, 1979 nunc pro tunc. Court-appointed counsel then filed a motion for reconsideration of both the revocation and the sentence imposed on June 25, 1979. The sentencing judge, on March 26, 1986, issued an order denying the motion and stating that one of the reasons for the imposition of the ten year probation sentence of June 25, 1979 was application of the enhancement provision of the Act, which the court construed as authorizing a new maximum sentence of up to

[ 368 Pa. Super. Page 313]

    ten years imprisonment. 35 Pa.S.A. § 780-115.*fn1 The court then proceeded to find appellant in violation of probation, revoked probation, and resentenced appellant to a term of five (5) to ten (10) years incarceration. This sentence was also based upon the court's construction and application of the enhancement provision of the Act.

This appeal was filed by appellant, acting pro se, on April 22, 1986. On July 3, 1986, the trial court heard argument on the motion for reconsideration of both the order and the sentence filed by appellant's counsel; on August 12, 1986, the court dismissed that motion. The matter is now properly before this Court for disposition.

Appellant argues that the sentence of June 25, 1979 was illegal in that it imposed an excessive and impermissible period of probation as the court did not state its use of the enhancement provisions on the record at sentencing; she also argues that the court erred in imposing an enlarged sentence on June 25, 1979 where the bill of information failed to contain allegations of appellant's prior offenses.

These arguments constitute a collateral challenge to the 1979 sentence which we will not entertain. Appellant failed to challenge the June 25, 1979 imposition of sentence by filing a timely motion to modify. Pa.R.Crim.P. 1410. Thus, appellant's right to challenge on direct appeal the alleged illegality and excessiveness of the sentence imposed and the sentencing court's failure to state sufficient reasons for ...


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