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[U] Commonwealth v. Powell

Superior Court of Pennsylvania

December 13, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
SAMUEL ELBERT POWELL, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Orders entered April 4, 2013, in the Court of Common Pleas of Westmoreland County, Criminal Division, at No(s): CP-65-CR-0002580-1988, CP-65-CR-0001558-1989 and CP-65-CR-0001559-1989

BEFORE: BOWES, ALLEN, and LAZARUS, JJ.

MEMORANDUM

ALLEN, J.

Samuel Elbert Powell ("Appellant") appeals from the orders which corrected the prior sentencing orders entered on January 22, 1990. We affirm.

The pertinent facts and procedural history are as follows: On November 30, 1988, Trooper Kevin Graham of the Pennsylvania State Police was contacted by the Westmoreland County Children's Bureau to investigate a report of sexual abuse against an eight-year-old girl ("victim"). N.T., 10/30/89, at 5-6. A physician at Latrobe Hospital examined the victim and found a very large laceration in the inner wall of the victim's vagina, which required suturing to stop the bleeding. Id. at 8; N.T., 1/22/90, at 32. The victim informed the police that for "as long as she could remember, " Appellant had sexually abused her, forcing her to perform oral sex, tying her down, and performing sexual acts on her himself, and with a dog. N.T., 10/30/89, at 11-13. Appellant was arrested and charged with a multitude of offenses. On October 30, 1989, Appellant pled guilty to the following:

At Docket No. 2580-1988 (2580 c 88): Count 1 - Attempted Rape; Count 2 - Attempted Statutory Rape; Count 3 - Corruption of Minors; and Count 4 - Indecent Assault.

At Docket No. 1558-1989 (1558 c 1989): Count 1 - Involuntary Deviate Sexual Intercourse; Count 2 - Indecent Assault; Count 3 - Indecent Exposure; Count 4 - Corruption of Minors; Count 5 - Incest; Count 6 -Endangering the Welfare of Children; Count 7 - Involuntary Deviate Sexual Intercourse; Count 8 - Corruption of Minors; Count 9 - Endangering the Welfare of Children; Count 10 - Unlawful Restraint; Count 11 - Corruption of Minors; Count 12 - Endangering the Welfare of Children; and Count 13 -Sexual Abuse of Children.

At Docket No. 1559-1989 (1559 c 1989): Count 1 - Involuntary Deviate Sexual Intercourse; Count 2 – Rape; Count 3 - Statutory Rape; Count 4 - Indecent Assault; Count 5 - Indecent Exposure; Count 6 -Corruption of Minors; Count 7 - Incest; and Count 8 - Endangering the Welfare of Children.

On January 22, 1990, The Honorable Gilfert M. Mihalich conducted a sentencing hearing and pronounced his sentence on the record. That same day, Judge Mihalich entered three written sentencing orders, one at each docket. The sentencing orders, which were typed forms and completed in handwriting, read in pertinent part:

DOCKET NO. 2580 C 1988:

ORDER OF COURT/SENTENCE
NOW 1-22, 1990 THE DEFENDANT IS ...
CT 1 INCARCERATED FOR A PERIOD OF NOT LESS THAN 3 yrs NOR MORE THAN 6 yrs.
No sentence at Ct 2, it merges with Ct 1. At Ct 3, 1 to 2 yrs. with Bureau of Correction, concurrent to sentence at Ct 1. At Ct 4, 1 to 2 yrs with [Bureau of Corrections], concurrent to sentence at Ct 1.

DOCKET NO. 1558-1989:

ORDER OF COURT/SENTENCE
NOW 1-22, 1990 THE DEFENDANT IS ...
CT 1 INCARCERATED FOR A PERIOD OF NOT LESS THAN 7 yrs NOR MORE THAN 14 yrs, consecutive to all sentences @ 2580 c 88
There is no sentence at Cts 2, 3, 5, they merge with Ct 1. Incarceration at Ct 4, 1 to 2 yrs., concurrent with sentence at Ct 1, with the Bur of Corr. At Ct 6, Incarceration 1 to 2 yrs., concurrent with sentence at Ct 1, with the Bur of Corr. At Ct 7, Incarceration of 7 to 14 yrs., consecutive to sentence at Ct. 1, with Bur of Corr. At Ct 8, 1½ to 3 yrs, consecutive to sentence at Ct 7, with Bur of Corr. At Ct 9, 1½ to 3 yrs., consecutive to sentence at Ct 8, with the Bur of Corr. At Cts 10 1112, 1 to 2 years inc at each, concurrent with sent at Ct 1 with Bur of Corr. At count 13, 3 to 6 yrs, consecutive to sentence at Ct 8 with Bur of Corrections. There is no further sentence at Cts 2, 3, 5, as they merge with Ct 1 for purpose of sentencing.

DOCKET NO. 1559 C 1989:

ORDER OF COURT/SENTENCE
NOW 1/22, 1990 THE DEFENDANT IS ...
CT 1 INCARCERATED FOR A PERIOD OF NOT LESS THAN 7 yrs NOR MORE THAN 14 yrs, consecutive to ...

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