Appeal from the Order of Superior Court entered at No. 1795 PHL 85, dated June 1, 1987, affirming the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, entered at No. CP84-10-3569-3578, dated November 1, 1985. Pa. Super. , 531 A.2d 32 (1987)
James Edward Mugford, Sr., Leonard N. Sosnov, John W. Packel, Philadelphia, for amicus -- Defender Assoc. of Philadelphia.
Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., George S. Leone, Philadelphia, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Zappala, J., files a concurring opinion.
The issue of concern presented by this appeal is whether a sentencing court may correct an illegal sentence by increasing the maximum period of incarceration after service of that sentence has begun.
On September 30, 1984, appellant, David L. Jones, lured his victim, by means of a ruse, into a vacant house. Appellant then choked and robbed the victim, threatened to kill her with a hatchet, tied her and gagged her, injected amphetamines into her hands, and forced her to submit to oral and vaginal intercourse. Appellant was arrested and charged with rape,*fn1 involuntary deviate sexual intercourse,*fn2 robbery,*fn3 aggravated assault,*fn4 theft by unlawful taking,*fn5 theft by receiving stolen property,*fn6 terroristic threats,*fn7 recklessly
endangering another person,*fn8 unlawful restraint,*fn9 indecent assault,*fn10 indecent exposure,*fn11 simple assault,*fn12 and possessing instruments of crime.*fn13
On May 28, 1985, in the Court of Common Pleas of Philadelphia County, appellant, following an extensive colloquy, entered a negotiated plea of guilty to the charges of aggravated assault, possessing instruments of crime, involuntary deviate sexual intercourse, robbery, and rape. The remaining charges were nolle prossed. The Commonwealth, as part of the plea agreement, recommended that appellant receive concurrent terms of imprisonment within the minimum range of the sentencing guidelines and a consecutive period of probation to be determined by the sentencing court.*fn14 After adding the deadly weapon enhancement of twelve months to the appropriate minimum ranges set forth in the sentencing guidelines, the sentencing court imposed concurrent sentences of forty-eight to sixty-four months on the rape, involuntary deviate sexual intercourse, and aggravated assault charges; a concurrent sentence of twenty-four to forty-eight months on the possessing instruments of crime charge; and a consecutive three year term of probation on the robbery charge.
Immediately after appellant was sentenced and was on his way to Holmesburg to begin serving his sentence, the sentencing judge realized that the sentences of forty-eight to sixty-four months were illegal in that the minimum sentence imposed was not one-half of the ...