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COMMONWEALTH PENNSYLVANIA v. MICHAEL H. CHILQUIST (06/08/88)

submitted: June 8, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL H. CHILQUIST, APPELLANT



Appeal from the Judgment of Sentence entered July 14, 1987 in the Court of common Pleas of Allegheny County, Criminal Division, No. CC87000979A.

COUNSEL

Howard B. Elbling, Assistant Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.

Cavanaugh, Rowley and Kelly, JJ. Cavanaugh, J., concurs in the result. Rowley, J., files a dissenting statement.

Author: Kelly

[ 378 Pa. Super. Page 56]

Appellant, Michael H. Chilquist, appeals from judgment of sentence entered following the acceptance of appellant's guilty plea to charges of robbery and related offenses. We grant allowance of appeal of the discretionary aspects of sentence, and affirm judgment of sentence.

FACTS AND PROCEDURAL HISTORY

On January 5, 1987, appellant robbed a Hills Department Store in Bethel Park, Pennsylvania. While the robbery was still in progress, an employee outside the manager's office where the robbery occurred noticed the robbery and called the police. The police dispatcher relayed the employees' description of appellant, his car, and his license plate number to officers on patrol in the area. As appellant attempted to flee he was trapped in stopped traffic and boxed in by an alert police officer in a patrol car. When the officer approached appellant's vehicle, appellant shifted his car into reverse and attempted to flee. Appellant stated to the officer that he would not be taken alive, and reached for a bag in the car. Nonetheless, the brave officer was able to thwart appellant's repeated efforts to flee until other officers arrived and appellant was forcibly removed from his car. During his removal, appellant grabbed one of the officer's guns and was shot in the leg in the ensuing scuffle. Following appellant's arrest, police seized from the car a sawed off shotgun and 9 millimeter caliber automatic pistol (both loaded) as well as the bullet proof vest appellant had been wearing. A large variety of other evidence linking appellant to the robbery was also seized.

On May 15, 1987, appellant entered a guilty plea to one count of Robbery, two counts of Violation of the Uniform Firearms Act, one count of Prohibited Offensive Weapon, one count Resisting Arrest, one count Recklessly Endangering Another Person, and three counts of Simple Assault.

[ 378 Pa. Super. Page 57]

The plea was accepted following an exhaustive and comprehensive plea colloquy. (N.T. 5/15/87 at 1-30). Sentencing was postponed pending completion of a presentence investigation report. (N.T. 5/15/87 at 30). Notice was given by the Commonwealth of its intent to seek the application of the mandatory minimum sentence provision of 42 Pa.C.S.A. ยง 9712.

Appellant's sentencing hearing was conducted on July 14, 1987. Appellant's counsel presented extended argument regarding mitigating factors and was permitted to summarize for the court uncontested mitigation testimony which would otherwise have been presented by defense witnesses. (N.T. 7/14/87 at 2-5). Appellant made a brief expression of his remorse. (N.T. 7/14/87 at 6). The Commonwealth then presented argument relating to items in the presentence investigation report and in rebuttal to parts of appellant's mitigation evidence. (N.T. 7/14/87 at 6-9). Appellant was then given a second opportunity to address the court, during which he denied that he had violent tendencies and that he had prepared for a violent conflict before the present robbery. (N.T. 7/14/87 at 9-10).

The trial court then indicated that, in light of great potential for further serious injuries during the commission of the present crime, an aggravated sentence was appropriate. (N.T. 7/14/87 at 11). The court sentenced appellant to a term of imprisonment of ten (10) to twenty (20) years on the Robbery conviction and a consecutive five (5) year term of probation on one of the Violation of the Uniform Firearms Act convictions. In light of the sentence imposed on the first two convictions, the trial court exercised its discretion to impose no further penalty with ...


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