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COMMONWEALTH PENNSYLVANIA v. DAVID WAYNE STALNAKER (05/23/88)

filed: May 23, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID WAYNE STALNAKER, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Cumberland County, Criminal at No. 155, 210, 348 and 433 Criminal 1987.

COUNSEL

James K. Jones, Carlisle, for appellant.

Merle L. Ebert, Jr., Assistant District Attorney, York, for Com., appellee.

Brosky, Montemuro and Johnson, JJ.

Author: Montemuro

[ 376 Pa. Super. Page 182]

Appellant, David Wayne Stalnaker, appeals from the judgment of sentence which was entered following the acceptance of his guilty pleas to five (5) counts of Robbery. The sentence imposed required appellant to serve a period of incarceration of two (2) to five (5) years less one day in a state correctional institution.

On February 6, 1987, appellant and several compatriots drove to a 7-Eleven convenience store. Appellant, who owned and operated the vehicle, remained in the vehicle while his two friends entered the store, pointed a pellet pistol at the clerk, and demanded cash. The two then fled

[ 376 Pa. Super. Page 183]

    the scene in appellant's vehicle with appellant driving. Shortly after the incident, the police stopped appellant and discovered ski masks, the pellet gun, and a bag containing cash. After waiving his Miranda rights, appellant confessed to being the driver of the vehicle involved in the 7-Eleven robbery as well as the driver in four other unsolved robberies. Appellant also supplied the police with information concerning three other robberies, in which he was not involved. The District Attorney's Office entered into an agreement with appellant under which the District Attorney agreed to recommend a sentence of two (2) to five (5) years in exchange for appellant's guilty pleas on the five counts of Robbery and his testimony against various criminal defendants. In addition, the District Attorney agreed not to seek the five (5) year mandatory minimum sentence for crimes committed with the use of a firearm. Appellant entered guilty pleas to the five (5) counts of Robbery and was sentenced to serve a period of confinement in a state correctional facility of not less than two (2) years nor more than five (5) years less one day. Appellant filed a timely petition to modify sentence which the court denied. This timely appeal followed. We affirm.

Appellant's sole contention on appeal is that the court abused its discretion in requiring him to serve his sentence in a state correctional institution rather than a county facility. Pennsylvania's Sentencing Code, 42 Pa.C.S.A. ยงยง 9701-9781, contains a provision which provides guidance to the courts of this Commonwealth in determining the appropriate facility for confinement based on the maximum term of confinement imposed. That section provides:

All persons sentenced to total or partial confinement for:

(1) maximum terms of five or more years shall be committed to the Bureau of Correction for confinement;

(2) maximum terms of two years or more but less than five years may be committed to the Bureau of Corrections for confinement or may be committed to a county ...


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