Commonwealth v. Dorian

450 A.2d 152, 304 Pa. Super. 163, 1982 Pa. Super. LEXIS 5193

• Court: Superior Court of Pennsylvania
• Decided: September 10, 1982
• Docket: No. 1197
• Status: Published

Opinions

WATKINS, Judge:

In this appeal by the defendant-appellant, Sheldon Dorian, it is claimed that the court below erred when it dismissed his P. C. H. A. petition, without a hearing. Defendant’s petition alleged the court erred in dismissing his petition because Pennsylvania law holds that a defendant who is presently serving a valid sentence, the term of which is computed from the date he completed a constitutionally invalid sentence may contest the invalid sentence by way of a P. C. H. A. proceeding.

The defendant pled guilty to rape and assault with intent to ravish in March of 1951. He was sentenced to an indefinite term in prison up to a maximum term of fifteen (15) years as the result of his plea.

In November of 1954, the defendant pled guilty to prison breach (for which he was sentenced to two and one-half to five [2V2-5] years and auto theft (for which he received three and one-half to seven [3V2-7] years), said sentences to run concurrently.

In 1965 a federal court invalidated his 1951 plea and sentence. The case was then remanded to the lower court. In August of 1965 the defendant pled guilty to assault with intent to ravish. The rape charge was nol prossed. He was sentenced to two and one-half to five (2V2 to 5) years.

On March 9, 1981 the defendant was sentenced to six to twelve (6 to 12) years on a burglary charge. He was then serving two other sentences, viz., a seven and one-half to fifteen (7V2 to 15) year term and a concurrent sentence of six (6) months to two (2) years (effective date of which was June 22, 1977). The first charge was as a result of an Armed Robbery conviction; the second for Prison Breach.

But for the burglary conviction (for the March 9, 1981 sentence) defendant’s maximum sentence on prison breach would have expired on February 2, 1981. His maximum sentence on the Armed Robbery conviction would have expired on December 12, 1982.

The defendant argues that the sentence imposed on the 1951 rape charge was invalid and that therefore his subsequent sentences are invalid as sentences affected by the invalid one. This claim is meritless, as the federal court vacated the invalid plea and sentence in 1965 and defendant subsequently pled guilty in 1965. Thus, his subsequent sentences were not based on an invalid one and any P. C. H. A. hearing would be futile and frivolous.

Order affirmed.

SPAETH, J., files a dissenting opinion.