Commonwealth v. Newton

875 A.2d 1088, 2005 Pa. Super. 150, 2005 Pa. Super. LEXIS 917
CourtSuperior Court of Pennsylvania
DecidedApril 26, 2005
StatusPublished
Cited by11 cases

This text of 875 A.2d 1088 (Commonwealth v. Newton) 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. Newton, 875 A.2d 1088, 2005 Pa. Super. 150, 2005 Pa. Super. LEXIS 917 (Pa. Ct. App. 2005).

Opinion

BOWES, J.:

¶ 1 Warren Newton appeals nunc pro tunc from the August 7, 2002 judgment of sentence imposed after the trial court revoked his parole and probation. We affirm.

¶ 2 The relevant procedural history follows: On December 6, 1999, Appellant pled guilty to receiving stolen property after he was arrested for operating an automobile that had been reported stolen three days earlier. On February 2, 2000, the trial court imposed a judgment of sentence of twenty-three months imprisonment with credit for time served followed by one year of reporting probation. Appellant immediately was paroled.

¶ 3 Thereafter, Appellant failed to report to his probation officer and ultimately was apprehended in New Jersey. During the August 7, 2002 Gagnon II revocation hearing, the revocation court determined that Appellant violated the terms of his parole and reinstated the balance of the original sentence. The court also revoked Appellant’s probation and imposed a one-to-two-year term of imprisonment.

¶ 4 On September 6, 2002, after the revocation court denied post-sentence relief, Appellant filed a timely direct appeal. However, on October 10, 2002, that appeal was discontinued. Thereafter, on July 10, 2003, Appellant mailed a timely pro se PCRA petition, which was docketed on August 4, 2003, asserting, inter alia, appellate counsel’s ineffectiveness for failing to perfect the appeal. Appointed counsel filed an amended petition, and on March 26, 2004, the PCRA court reinstated Appellant’s direct appeal right nunc pro tunc.

¶ 5 Appellant raises a single issue: “Is not a new sentencing hearing required where the sentencing court, in contravention [of] Pa.Crim.P[J 708(C)(1), and in violation of [Appellant’s state and federal [1090]*1090due process rights, failed to accord [Appellant his right to allocution,” Appellant’s brief at 3. Since the record demonstrates that Appellant was granted his right of allocution, we affirm the judgment of sentence.

¶ 6 The right of allocution prior to the imposition of sentence following parole or probation revocation is guaranteed by Pa. R.Crim.P. 708(C)(1), which provides that “[a]t the time of sentencing, the judge shall afford the defendant the opportunity to make a statement in his or her behalf and shall afford counsel for both parties the opportunity to present information and argument relative to sentencing.” See also Pa.R.Crim.P. 704(C)(1) (formerly Rule 1405(a)) (identical provision relating to al-locution during sentencing generally).

¶ 7 In Commonwealth v. Thomas, 520 Pa. 206, 553 A.2d 918 (1989), our Supreme Court held that pursuant to Rule 1405(a), a criminal defendant has an absolute right to address the trial judge before imposition of sentence and that the defendant has to be advised of his right of allocution prior to sentencing. Consistent with Thomas, this Court has adhered to the principle that a defendant who is not permitted to address the trial judge prior to sentencing is automatically entitled to a new sentencing hearing. See Commonwealth v. Hague, 840 A.2d 1018 (Pa.Super.2003); Commonwealth v. Barzyk, 692 A.2d 211 (Pa.Super.1997); Commonwealth v. Anderson, 412 Pa.Super. 527, 603 A.2d 1060 (1992).

¶ 8 As a preliminary matter, we address the Commonwealth’s argument that Appellant’s claim is waived because it was not raised at the sentencing hearing or in a post-sentence motion. See Pa. R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”). For reasons discussed infra, we hold that the issue is subject to appellate review, notwithstanding Appellant’s failure to raise it in the trial court, because it relates to the legality of his sentence.

¶ 9 With respect to sentencing issues, Pa.R.A.P. 302(a) is often cited in conjunction with Pa.R.Crim.P. 720, which provides, inter alia, that after sentencing, a defendant has the right to file a post-sentence motion to modify sentence. However, although Rule 720 characterizes such motions as optional, it states that if no post-sentence motion is filed, only issues raised in the trial court “before or during trial” will be deemed preserved for appellate review. Pa.R.Crim.P. 720(B)(1)(c). Thus, in Commonwealth v. Jarvis, 444 Pa.Super. 295, 663 A.2d 790 (1995), this Court held that an objection to a discretionary aspect of a sentence is waived if not raised in a post-sentence motion or during the sentencing hearing. In reaching that conclusion, the Jarvis Court observed:

The modifications to Rule 1410 [(presently Rule 720)] have not altered the requirement of Rule of Appellate Procedure 302 which states that “[ijssues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P., Rule 302(a), 42 Pa. C.S.A. See Commonwealth v. Krum, 367 Pa.Super. 511, 513-15, 533 A.2d 134, 135-36 (1987) (en banc) (issues not going to the legality of a sentence are waived if they have not been raised via oral or written motion to modify sentence prior to appeal). Because appellant never provided the trial judge with the opportunity to reconsider or modify sentence, this issue is waived. Appellant may not challenge the discretionary aspects of her sentence for the first time on appeal.

Id. at 791-92 (footnote omitted). In light of Jarvis, the relevant inquiry in the case [1091]*1091at bar is whether Appellant’s allocution claim relates to a discretionary aspect of his sentence; if so, then it is waived for failure to raise it in the trial court. However, if the claim implicates the legality of Appellant’s sentence, we can review it on the merits. Krum, supra; see also Commonwealth v. Redman, 864 A.2d 566 (Pa.Super.2004) (in general, challenges to legality of sentence cannot be waived).

¶ 10 Despite extensive research, we have been unable to locate any case law handed down after Commonwealth v. Thomas, supra, that supports the Commonwealth’s waiver position. Conversely, our decision in Commonwealth v. Barzyk, 692 A.2d 211 (Pa.Super.1997), suggests that a defendant can appeal a denial of his right of allocution as of right. The defendant in Barzyk appealed his harassment conviction, alleging, inter alia, that he had been denied his right of allocution. We addressed the claim on the merits without inquiring as to whether it had been raised in the trial court, noting that under Thomas, supra, the defendant had to be informed of his right of allocution and afforded an opportunity to speak on his own behalf prior to imposition of sentence. As suggested by the Barzyk Court, we conclude that Appellant’s claim is appealable as of right because the issue implicates the legality of his sentence.

¶ 11 A sentence may be deemed illegal for various reasons.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Com. v. Spada, Z.
Superior Court of Pennsylvania, 2014
Com. v. Hardy, K.
Superior Court of Pennsylvania, 2014
Commonwealth v. Hardy
99 A.3d 577 (Superior Court of Pennsylvania, 2014)
Commonwealth v. Williams
900 A.2d 906 (Superior Court of Pennsylvania, 2006)
Commonwealth v. Jacobs
900 A.2d 368 (Superior Court of Pennsylvania, 2006)
Commonwealth v. Clark
885 A.2d 1030 (Superior Court of Pennsylvania, 2005)
Commonwealth v. Raphael
879 A.2d 1264 (Superior Court of Pennsylvania, 2005)
Commonwealth v. Berry
877 A.2d 479 (Superior Court of Pennsylvania, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
875 A.2d 1088, 2005 Pa. Super. 150, 2005 Pa. Super. LEXIS 917, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-newton-pasuperct-2005.