Commonwealth v. Isabell

467 A.2d 1287, 503 Pa. 2, 1983 Pa. LEXIS 727
CourtSupreme Court of Pennsylvania
DecidedNovember 16, 1983
Docket80-3-621
StatusPublished
Cited by88 cases

This text of 467 A.2d 1287 (Commonwealth v. Isabell) is published on Counsel Stack Legal Research, covering Supreme 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. Isabell, 467 A.2d 1287, 503 Pa. 2, 1983 Pa. LEXIS 727 (Pa. 1983).

Opinions

OPINION OF THE COURT

HUTCHINSON, Justice.

Appellant directly appeals a 1980 judgment of sentence of 11/2 to 5 years imposed by Philadelphia Court of Common Pleas (Durham, J.) for a probation violation on his 1971 sentence for voluntary manslaughter.1 Appellant, represented by the Defender Association of Philadelphia, contends the Department of Corrections erroneously interpreted his sentence on the probation violation to run consecutive to his 1977 sentence for burglary and assault despite the [7]*7absence of any language to that effect in the written sentence endorsed on the bill. The District Attorney contends the clear intention of the sentencing judge should prevail despite Pa.R.Crim.P. 1406(c), which provides that sentences not expressly said to be consecutive are concurrent. Since appellant has incorrectly challenged the Department of Corrections’ interpretation of his sentence by way of a direct appeal the appeal is dismissed without prejudice to appellant’s right to raise the issue against the proper parties in a habeas corpus proceeding.2

In 1970 Judge Cavanaugh convicted appellant of voluntary manslaughter and unlawfully carrying a firearm without a license. His sentences were one to two years (precisely 363 days to 729 days) on the weapons conviction, followed by twelve years probation on the manslaughter.3 In 1977, while on this probation, appellant was arrested and charged with robbery and simple and aggravated assault. Philadelphia Common Pleas (Lord, J.) found him guilty of attempted robbery and aggravated assault following a bench trial and, after denying post-trial motions sentenced him to concurrent terms of five to ten years imprisonment on March 9, 1978. The minimum date on that sentence was March 9, 1983.

On March 21, 1978 appellant came before Judge Cavanaugh for a hearing on the probation violation resulting from his 1977 conviction. At his request that hearing was continued pending resolution of his appeal from the 1977 judgment of sentence imposed by Judge Lord on the 1977 charges. That continuance was granted upon appellant’s agreement not to raise the requirement applying to probation violation hearings under Pa.R.Crim.P. 1409 that “a hearing be held as speedily as possible.” In May, 1979 [8]*8Superior Court affirmed the judgment of sentence imposed by Judge Lord. Commonwealth v. Isabell, 268 Pa.Superior Ct. 597, 413 A.2d 1117 (1979).

On February 29, 1980 Judge Durham, sitting in place of Judge Cavanaugh who had become a member of Superior Court, held the continued hearing on appellant’s violation of probation. After the hearing Judge Durham revoked probation and sentenced appellant to a prison term of one and one-half to five years for probation violation. Although the record strongly suggests Judge Durham intended his sentence to be consecutive to those imposed by Judge Lord in 1977, the actual written sentence endorsed on the bill did not so state.

Defendant did not file a motion to modify his sentence. Instead he simply filed an appeal to Superior Court.4 Consequently, Judge Durham wrote an opinion responding to the only argument before him. That argument, apparently raised in a petition for habeas corpus filed in Common Pleas prior to the February 29, 1980 hearing, raised a single issue: undue delay in hearing his probation violation. Judge Durham rejected that argument in his opinion and it was abandoned here in favor of the argument that detainers lodged against appellant on the probation violation were improper because Judge Durham’s sentence, concurrent with Judge Lord’s, under Rule 1406, entitled him to release on March 9, 1983 at the expiration of his minimum on the sentence imposed by Judge Lord.5

It is well settled that this Court will not address issues raised for the first time on appeal. Commonwealth v. Wallace, 495 Pa. 295, 433 A.2d 856 (1981). Commonwealth v. Zillgitt, 489 Pa. 189, 192 n. 3, 413 A.2d 1078, 1079 n. 3 (1980). To conserve judicial resources and to prevent [9]*9the circumvention of appropriate lower authorities, an appellate court will not review issues that have not been presented to those lower authorities. See e.g. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).

We have held, however, that a challenge to a sentence which is unlawful per se is not waived where it is raised for the first time on appeal. Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982); Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976). Thus, where the sentencing court imposes two sentences for a single act we have held the issue may be raised for the first time on appeal. Commonwealth v. Walker, supra.6 However, where a lawful sentence is challenged because the trial judge considers an inadmissible arrest record or erroneously believed he was required to impose a consecutive sentence for a probátion violation, we have held that the issue must be preserved for review in the sentencing court. See Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978); Commonwealth v. Shoemaker, 462 Pa. 342, 341 A.2d 111 (1975).

In the present case, however, appellant has not challenged the lawfulness of the sentence, see Commonwealth v. Walker, supra, nor does he seek to modify the recorded sentence, for example, on the ground that it is excessive. See Commonwealth v. DeCaro, 298 Pa.Superior Ct. 32, 444 A.2d 160 (1982). Neither a motion challenging the propriety of the sentence nor a direct appeal from the judgment of sentence properly challenges the discrepancy between the signed sentence and the Bureau of Corrections’ interpreta[10]*10tion of it. Moreover, appellant has not maintained his sentence is invalid on procedural grounds, see e.g. Commonwealth v. Riggins, 478 Pa. 222, 386 A.2d 520 (1978), or because the sentencing judge imposed an otherwise lawful sentence on erroneous grounds. Instead he has challenged his detention under Judge Durham’s sentence as interpreted by the Bureau of Corrections.

Since this appeal is properly construed as a challenge to action by the Bureau of Corrections and is not a direct or collateral attack on the conviction or sentence imposed by the trial court it is not properly brought under the Post-Conviction Hearing Act. See 19 P.S. § 1180-3(e). Consequently, appellant may resort to the writ of habeas corpus ad subjiciendum.7 See Commonwealth ex rel. Woods v. Howard, 249 Pa.Superior Ct. 428, 378 A.2d 370 (1977) (opinion by Hoffman, J.); Commonwealth ex rel. Munyan v. Smith, 154 Pa.Superior Ct. 664, 36 A.2d 859 (1944).

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Bluebook (online)
467 A.2d 1287, 503 Pa. 2, 1983 Pa. LEXIS 727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-isabell-pa-1983.