Commonwealth v. Tomlin

¶1Opinion by

¶2On June 29, 1972, appellant was tried and convicted on two bills of indictment charging him with aggravated robbery and aggravated assault. The trial court sentenced him to one to five years’ imprisonment on the bill charging aggravated robbery and suspended sentence on the bill charging aggravated assault. The trial court, however, vacated a.nd deferred sentence pending motions in arrest of judgment and for a new trial which were filed on July 5, 1972. On January 4, 1973, the motions were withdraAvn. After the reception of psychiatric reports, the trial court sentenced appellant to seven years’ probation. Ten months later, appellant appeared before the original trial court for violation of probation. The court revoked probation and imposed a sentence of three and one-lialf to seA^en years imprisonment.

¶3The appellant contends that the sentence of three and one-half to seven years subsequent to an initial *149imposition of a one to five year term is improper.

¶4It is clearly the la,w in Pennsylvania that a “modification of a sentence imposed on a criminal defendant which increases the punishment constitute [s] further or double jeopardy.” Commonwealth v. Silverman, 442 Pa. 211, 215, 275 A. 2d 308 (1971) ; see also Commonwealth v. Davy, 218 Pa. Superior Ct. 355, 280 A. 2d 407 (1971) ; Commonwealth v. Jackson, 218 Pa. Superior Ct. 357, 280 A. 2d 422 (1971). If a trial court suspends imposition of a sentence and places the defendant on probation, the court is not limited by a term of probation in sentencing the defendant who has violated a condition of probation. Commonwealth v. Cole, 222 Pa. Superior Ct. 229, 294 A. 2d 824 (1972). Cole, however, articulates a caveat to that power: “If a defendant is sentenced, but the judge chooses to suspend sentence pending a period of probation, the trial judge may re-sentence the defendant if he violates that probation. The maximum period of the re-sentence is limited however, to the maximum term under which the defendant was originally sentenced.” 222 Pa. Superior Ct. at 231. (Emphasis added.)

¶5In Commonwealth v. Scheetz, 217 Pa. Superior Ct. 76, 268 A. 2d 193 (1970), the appellant received a sentence of eight months to three years which was changed a month later to a three year period of probation. Subsequent to a probation violation, the appellant was sentenced to a term of two to five years.1 We held in *150Scheetzthat an increased sentence after a probation violation was improper and that the court was limited to a reinstatement of the originally imposed sentence.

¶6The instant case is controlled by Silvermanand Scheetz. Sentence was pronounced, subsequently “vacated”, and substituted by a probationary period. The sentence imposed after the violation of probation, therefore, could not exceed the original term of one to five years. Nor can the appellation of “vacating” sentence be a basis to distinguish the instant case from cases in which a definite sentence is “suspended”. We have held that jeopardy attaches regardless of technical defect or judicial inadvertence. Commonwealth v. Allen, 443 Pa. 96, 277 A. 2d 803 (1971) ; Commonwealth v. Jackson, 218 Pa. Superior Ct. 357, 280 A. 2d 422 (1971). The infirmity of increasing a previously imposed sentence is that the trial Judge has evaluated the evidence and on that basis has assessed a proper sentence. Because the trial court pronounced sentence upon the appellant, the court was bound by the terms of the original sentence.2

¶7*151The case is remanded to the lower court for re-sentencing consistent with this opinion.

¶10Dissenting Opinion by

¶11I respectfully dissent.

¶12The Opinion of the majority in this case theorizes that the action of a lower court in vacating a sentence is identical with that of suspending a sentence. I cannot agree with that position, especially in light of the factual and procedural history in the instant case.

¶13The record shows that on June 29, 1972, following his conviction, the appellant was immediately sentenced by the trial court to imprisonment for one to five years. Shortly thereafter, on the same day, the Court entered the following Order: “Sentence vacated pending filing of motions within seven days. Sentence is deferred, same bail to stand;” By this action, and with the particular circumstances of the instant case I believe the lower court completely nullified its earlier pronouncement of sentence. Moreover, the appellant himself made the initial sentencing a nullity when he filed post-trial motions. This is so since a trial court may not enter a valid sentence until the time for post-trial motions have expired or until such motions have been argued and decided. See Commonwealth v. Young, 223 Pa. Superior Ct. 447, 302 A. 2d 402 (1973) (footnote l).1

¶14*153In United States ex rel. Starner v. Russell, 378 F. 2d 808 (1967), cert. denied, 389 U.S. 889, 88 S. Ct. 166, 19 L. Ed. 2d 189, rehearing denied, 389 U.S. 997, 88 S. Ct. 488, 19 L. Ed. 2d 501, the United States Third Circuit Court of Appeals passed on a somewhat analogous situation. There the Court held that it was not improper for a State court to increase punishment following a new trial where the first sentence imposed on the prisoner’s plea of guilt was vacated.2 Surely, this Court would not have found the cases of Commonwealth v. Silverman, 422 Pa. 211, 275 A. 2d 308 (1971), and Commonwealth v. Scheetz, 217 Pa. Superior Ct. 76, 268 A. 2d 193 (1970), to be controlling had the appellant pursued successful post-trial motions, only to he sentenced more harshly following a new trial. I think the loAver court’s action in vacating its initial sentence in the instant case should be accorded similar treatment.

¶15In reaching my conclusion, I also find it interesting to note that in this case, unlike the cases cited by the majority, the court did not more harshly sentence the appellant following his withdrawal of post-trial motions. Rather, the lower court sentenced appellant to probation rather than imprisonment.3 I also deem it significant that the lower court had no psychiatric report at the time of its initial sentencing on June 29, 1972; such a report, however, was considered when the probationary sentence was imposed.4

¶16Based upon all of the above, I would affirm.

¶17Watkins, P. J., joins in this dissenting opinion.