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08/22/97 COMMONWEALTH PENNSYLVANIA v. JOSEPH WAYNE

August 22, 1997

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH WAYNE ANDERS, JR., APPELLANT



Appeal from the Judgment of Sentence, August 1, 1996, Docketed August 6, 1996, in the Court of Common Pleas of Huntingdon County, Criminal Division, No. 95-504 CA. Before KURTZ, J.

Before: McEWEN, P.j., Del Sole, Beck, Tamilia, Kelly, Hudock, Ford Elliott, Saylor, And Eakin, JJ. Ford Elliott, J. files a Concurring and Dissenting Statement which is joined by McEwen, P.j. and Kelly, J.

OPINION PER CURIAM:

Filed August 22, 1997

We certified this case for en banc review to address the following question: Does Pa. R. Crim. P. 1405 ("Rule 1405") require that a defendant who is not sentenced within sixty days of conviction or the entry of a plea of guilty or nolo contendere be discharged? We hold that Rule 1405 does not mandate discharge for untimely sentencing.

The facts and procedural history of the case are not complex. On April 26, 1996, appellant Joseph Wayne Anders, Jr. pleaded guilty to one count of driving under the influence of alcohol. *fn1

Rule 1405(A) governs the timing of appellant's sentence. It reads, in relevant part, as follows:

RULE 1405. PROCEDURE AT TIME OF SENTENCING

A. Time for Sentencing.

(1) Except as provided by Rule 1403.B [regarding psychiatric or psychological examinations], sentence in a court case shall ordinarily be imposed within 60 days of conviction or the entry of a plea of guilty or nolo contendere.

(2) When the date for sentencing in a court case must be delayed, for good cause shown, beyond the time limits set forth in this rule, the Judge shall include in the record the specific time period for the extension.

The Huntingdon County court administrator originally scheduled appellant's sentencing hearing for May 23, 1996. Pursuant to Rule 1405(A) (1), absent good cause for delay, the trial court was to sentence appellant within 60 days of appellant's April 26 guilty plea -- that is, by June 25, 1996. The court ordered a presentencing report to be completed by June 25.

The court administrator then rescheduled appellant's sentencing hearing for August 1, 1996. We cannot clearly discern a reason for this rescheduling. Testimony at the sentencing hearing suggests that the delay may have been in response to appellant's request to reschedule a certain meeting with a probation officer. *fn2 Yet that probation meeting took place on May 31, 1996, well within the 60-day limit imposed by Rule 1405(A). In short, the trial record provides no satisfying explanation for the 37-day delay from June 25, 1996 (the ordinary 60-day limit imposed by Rule 1405) to August 1, 1996 (the sentencing date).

On the sentencing date, appellant moved for discharge, arguing that he had not been timely sentenced under Rule 1405 and that no good cause was stated for the delay. The trial court denied the motion without comment. The court then sentenced appellant to imprisonment for thirty (30) days to twenty-three (23) months, as well as various fines, tests, completion of a rehabilitation program, and a period of probation. This appeal followed.

Appellant argues that (1) he was not timely sentenced under Rule 1405(A), and (2) pursuant to Commonwealth v. Thomas, 449 Pa. Super. 646, 674 A.2d 1119 (1996), the proper remedy for a Rule 1405(A) violation is to ...


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