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COMMONWEALTH PENNSYLVANIA v. STEPHEN J. GAMBAL (06/29/89)

decided: June 29, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
STEPHEN J. GAMBAL, III, APPELLANT



Appeal from the Order of the Superior Court of September 16, 1987 and November 30, 1987 at No. 3280 Phila. 1986 quashing the appeal from Judgment of Sentence of the Northumberland County Court of Common Pleas at No. CR-86-272, 273, 274, 275, and 276. Pa. Super , 536 A.2d 824 (1987).

COUNSEL

Elizabeth Beroes, Special and Conflicts Counsel, for appellant.

John W. Packel, for amicus-defender Assoc. of Philadelphia.

Robert B. Sacavage, Dist. Atty., Melissa Norton, Asst. Dist. Atty., for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Papadakos, J., files a concurring opinion which is joined by Zappala, J.

Author: Flaherty

[ 522 Pa. Page 281]

OPINION OF THE COURT

This is an appeal, by allowance, from an order of the Superior Court which quashed an appeal from an order of the Court of Common Pleas of Northumberland County denying a motion for modification of sentence filed by the appellant, Stephen J. Gambal, III. The factual background of the case is as follows.

In 1985, just prior to his eighteenth birthday, appellant was charged as a juvenile with two counts of burglary and a number of counts of theft and conspiracy. While these charges were pending, appellant turned eighteen years of age. Soon thereafter, in 1986, appellant became involved in another criminal incident, and, as a result, was charged with robbery, theft, and receiving stolen property. With respect to the latter charges, guilty pleas were entered pursuant to a plea agreement.

The agreement provided for a sentence of two to five years imprisonment, and stated that whenever the earlier juvenile charges were transferred to criminal court appellant

[ 522 Pa. Page 282]

    would waive certification hearings and enter guilty pleas. Appellant was accordingly sentenced, and, when the juvenile offenses were later certified, hearings were waived and guilty pleas were entered. However, when sentencing upon the certified offenses occurred, the presiding judge was not the same as the one who had imposed the earlier sentences under the plea bargain. The newly presiding judge rejected the plea bargain and its provision that a two to five year sentence should be imposed to run concurrent with the earlier sentences. Appellant nevertheless reaffirmed his pleas, and, after the judge referred to the Pennsylvania Sentencing Guidelines, concurrent sentences of thirty-three months to ten years were imposed for the two burglary charges, with lesser concurrent sentences for the theft and conspiracy charges.

A motion for modification of sentence was filed, challenging the propriety of the thirty-three month to ten year sentences. The motion was denied, and an appeal was taken to the Superior Court ...


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