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KRISTY L. WAGNER v. DAVID C. WAGNER (02/06/89)

submitted: February 6, 1989.

KRISTY L. WAGNER, APPELLEE,
v.
DAVID C. WAGNER, APPELLANT



Appeal from the Judgment of Sentence entered August 22, 1988 in the Court of Common Pleas of Lancaster County, Civil Division at No. 1344 of 1988.

COUNSEL

Vincent J. Quinn, Asst. Public Defender, Lancaster, for appellant.

Henry S. Kenderdine, Jr., Dist. Atty., Lancaster, for appellee.

Del Sole, Kelly and Hester, JJ. Kelly, J., files a dissenting statement.

Author: Del Sole

[ 387 Pa. Super. Page 247]

David C. Wagner, Appellant, was found in indirect criminal contempt and sentenced to six months imprisonment. Wagner appeals from the final order of the trial court raising whether the trial court was required to imposed a minimum sentence of one-half the maximum. We find this issue meritless and affirm the order of the trial court.

David Wagner was prohibited by court order from threatening, abusing or harassing, physically or verbally, his wife, Kristy Wagner. He was also excluded from her residence. This order was entered pursuant to the Protection From Abuse Act, 35 Pa.S.A. § 10181 -- 10190. Less than three months after this order was entered, David Wagner came into Kristy Wagner's residence and physically and verbally harassed her. David Wagner was arrested and charged with indirect criminal contempt in violation on 35 P.S. § 10181. Wagner was convicted of indirect criminal contempt

[ 387 Pa. Super. Page 248]

    and the trial court ordered him to serve six months in prison. Wagner appeals from this final order.

Wagner's sole issue is that his sentence was illegal. He argues that because indirect criminal contempt is a crime, those convicted of it must be sentenced under the Sentencing Code. The Sentencing Code provides that "the court shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence." 42 Pa.C.S.A. § 9756(b). The Protection From Abuse (PFA) Statute provides that "notwithstanding any provision of the law to the contrary any sentence for this contempt may include imprisonment up to six months or a fine not to exceed $1000 or both . . ." 35 P.S. § 10190(b). According to Wagner, he should have received a minimum sentence to go along with his maximum sentence of six months. Because the trial court failed to give him a minimum sentence, he claims his sentence was illegal and he should be resentenced.

We first note that this appeal is the first time that Wagner has challenged the legality of his sentence. A challenge to the legality of a sentence is an issue which cannot be waived. Commonwealth v. Cooke, 342 Pa. Super. 58, 492 A.2d 63 (1985). We will therefore consider Wagner's issue on its merits.

Wagner is correct in arguing that the indirect criminal contempt proceeding is criminal in nature. The Pennsylvania Supreme Court has held that finding an individual in contempt of a PFA order involved a proceeding that was criminal in nature and had double jeopardy implications. Commonwealth v. Allen 506 Pa. 500, 486 A.2d 363 (1984). But the court also wrote that because the PFA Act "has its roots in equity and is essentially civil, we hold that a court's use of its inherent power to enforce its orders under the Act through contempt ...


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