Commonwealth v. Gallagher

442 A.2d 820, 296 Pa. Super. 382, 1982 Pa. Super. LEXIS 3655
CourtSuperior Court of Pennsylvania
DecidedMarch 12, 1982
Docket2273
StatusPublished
Cited by26 cases

This text of 442 A.2d 820 (Commonwealth v. Gallagher) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Gallagher, 442 A.2d 820, 296 Pa. Super. 382, 1982 Pa. Super. LEXIS 3655 (Pa. Ct. App. 1982).

Opinions

WATKINS, Judge:

This is a direct appeal from the judgment of sentence after revocation of appellant’s probation. Appellant, Terrence Gallagher, filed a timely petition for reconsideration of his sentence which was denied. We affirm the decision of the court below.

Two issues are raised by appellant out of the following set of facts. On February 26, 1980, after a Gagnon II hearing,1 appellant’s probation of seven years was revoked. During the sentencing colloquy, the following exchange occurred between the appellant and the sentencing court:

[Appellant] “MR. GALLAGHER: You know, you are just making a mockery out of justice.
THE COURT: I am?
MR. GALLAGHER: Yeah.
THE COURT: Well, just a minute. Come back here. I will add a little more time on to it.
I gave you three years and I will revoke that sentence. I will make it three and a half years to seven years.
[Appellant’s Attorney] MR. O'DRISCOLL : Your Honor, if I might say that I think my client is in a distraught state. I would ask the Court to reconsider not adding anything additional to his sentence.
I think he is all raught (sic) up and I don’t think that upon reflection he would say some of the things perhaps that he said to the Court.
[385]*385THE COURT: That is a matter for him to decide and not for you, Mr. O’Driscoll. I am sure you would not say them.
MR. O’DRISCOLL: I would just ask, Your Honor—
MR. GALLAGHER: Your Honor, I think that the bitterness that I feel towards the justice system you know, I can’t help that. I can’t help being bitter about the way I feel towards you people.
THE COURT: That is all right.
MR. GALLAGHER: The justice system.
THE COURT: I gave you probation. I made a grave mistake then but I am trying to correct it just now.
MR. GALLAGHER: What in your opinion—is it your honest opinion that prison is going to help me?
THE COURT: No, it isn’t.
MR. GALLAGHER: Well, why don’t you try to find something that is going to help me?
THE COURT: I am going to keep you out of society.
MR. GALLAGHER: Why don’t you put me in a program that is five years long or something? Something that will be beneficial.
THE COURT: You will have a program up there. I understand they do have a program.
MR. GALLAGHER: Oh, yeah, work your butt off. That is your program. The program is all day, get up and go to work. That is all it is, Your Honor.
Do you call that a program?
THE COURT: I don’t know. I have never, thank God, been in jail before.
MR. GALLAGHER: You see, I ain’t trying to be a smart ass.
MR. GALLAGHER: The mockery part is that I can’t see—you can honestly just sit there and say oh well, hell, go ahead and take another three and a half years of his life or three years or whatever.
THE COURT: I am trying to make an Order to make it perfectly clear to you that when you come out you don’t start stealing—
[386]*386MR. GALLAGHER: All you are doing is making me more bitter and more hatred upon me.
THE COURT: Well —
MR. GALLAGHER: Your Honor, what would it take, you know, for me to get out and get so damn embittered with hatred that I just get a gun and just start shooting at people and say piss on everybody.
THE COURT: I think that is probably true. But I would not recommend it to you.
MR. GALLAGHER: No, I wouldn’t recommend it either. You know, eventually it could happen.
THE COURT: Yes, I know. I am very sorry, sir, but you should have thought of all of this a long time ago. I gave you probation. I put you on seven years probation. What did you do? You came out and no sooner were you out but you were—
MR. GALLAGHER: Your Honor, in a just round about way, you are just telling me to shut up.
THE COURT: No, I am not.”

Appellant contends that he was placed in jeopardy twice. He contends that the court below revoked the initial sentence imposed on the probation violation and subsequently imposed a harsher sentence as a direct result of appellant’s criticism.

Our Supreme Court has held that modification of a sentence imposed on a criminal defendant which increases the punishment constitutes a violation of the double jeopardy clause. Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971); cert. denied, 405 U.S. 1064, 92 S.Ct. 1490, 31 L.Ed.2d 794 (1972). The prosecution concedes that Silver-man stands for the principle herein cited but contends that this principle is inapposite because there was only one sentencing order (i.e., the period of incarceration of three and one half to seven years) which was docketed by the Clerk of Courts of Montgomery County, the three year “sentence” having been orally imposed and not docketed was without legal effect. During the colloquy the court below initially [387]*387indicated that he would sentence the appellant to a term of imprisonment of three to seven years. However, after indicating this, the court imposed a final sentence of three and one-half to seven years based upon the defendant’s conduct during the sentencing colloquy which clearly indicated the appellant’s dangerous propensities, the fact that he had no remorse for his crimes and his utter contempt for the legal process. Such factors became known to the court during the sentencing colloquy. A criminal defendant’s attitude, including a lack of contrition for his criminal conduct, is one of the proper criteria upon which a court may exercise its discretion in sentencing. Therefore, we hold that the court imposed but one sentence, that being three and one-half to seven years.

Appellant also claims that the sentence is unjustly harsh and manifestly excessive under the circumstances because the sentencing court failed to state on the record the reasons for the imposition of a sentence of total confinement. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Kostka, 276 Pa.Superior Ct. 494, 119 A.2d 566 (1980); Commonwealth v. Mallon, 267 Pa.Super. 163, 406 A.2d 569 (1979). We cannot agree.

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Cite This Page — Counsel Stack

Bluebook (online)
442 A.2d 820, 296 Pa. Super. 382, 1982 Pa. Super. LEXIS 3655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-gallagher-pasuperct-1982.