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COMMONWEALTH PENNSYLVANIA v. WAYNE HOWARD (03/14/88)

submitted: March 14, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
WAYNE HOWARD, APPELLANT



Appeal from Judgment of Sentence entered January 20, 1987, in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section at Nos. 8306-1623 and 8306-1625 June Term 1983.

COUNSEL

John J. Garagozzo, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

Rowley, Kelly and Cercone, JJ.

Author: Kelly

[ 373 Pa. Super. Page 247]

Appellant, Wayne Howard, appeals from judgment of sentence of five to ten years imprisonment imposed after his original sentence of two concurrent terms of sixteen months to sixty months imprisonment was vacated pursuant to Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), affirmed sub. nom McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). Appellant contends that in light of his good behavior on parole from the vacated sentence, the new sentence is excessive and disproportionate and therefore constitutes cruel and unusual punishment. We affirm.

The relevant facts and procedural history may be summarized as follows. On March 17, 1983, appellant was arrested and charged with aggravated assault, simple assault, reckless endangerment, possession of an instrument of crime, and violation of the Uniform Firearms Act. Appellant had shot a bar employee in the leg during the course of an argument with the bar employee. The Commonwealth filed notice of its intent to proceed under 42 Pa.C.S.A. § 9712, which provides a five year mandatory minimum sentence for offenses committed with a firearm.

On August 25, 1983, a jury found appellant guilty of aggravated assault and possession of an instrument of crime. In accordance with a prior common pleas court opinion declaring 42 Pa.C.S.A. § 9712 unconstitutional, the trial court refused to impose the five year mandatory minimum sentence at sentencing. Two concurrent terms of sixteen months to sixty months imprisonment were imposed

[ 373 Pa. Super. Page 248]

    instead. The Commonwealth filed for reconsideration of sentence seeking compliance with 42 Pa.C.S.A. § 9712. When the motion for reconsideration was denied, the Commonwealth filed timely notice of appeal to our Supreme Court.

On November 10, 1986, sentence was vacated by our Supreme Court and the case was remanded for resentencing in accordance with 42 Pa.C.S.A. § 9712. During the interim period, appellant (whose sentence was not stayed pending the Commonwealth's appeal) served his minimum sentence (16 months) and was released on parole. Appellant appeared for resentencing and was sentenced to a term of imprisonment of five to ten years. This timely appeal follows.

On appeal, appellant contends that under the circumstances of his case the five year mandatory minimum sentence imposed at resentencing constitutes unconstitutional cruel and unusual punishment. We cannot agree.

Initially, we note that the contention that a sentence is unconstitutional as cruel and unusual punishment challenges the legality of the sentence, rather than a discretionary aspect of sentence. See 42 Pa.C.S.A. §§ 9781(a) and 9781(b). Just as no court has authority to impose a sentence violative of the double jeopardy clause, no court may legally impose cruel and unusual punishment. Cf. Commonwealth v. Campbell, 351 Pa. Super. 56, 505 A.2d 262 (1986) (double jeopardy claim is addressed to the legality of the sentence imposed). Therefore, appellant's contention that the sentence imposed ...


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