Commonwealth v. Tomlin

336 A.2d 407, 232 Pa. Super. 147, 1975 Pa. Super. LEXIS 1368

• Court: Superior Court of Pennsylvania
• Decided: February 27, 1975
• Docket: Appeal, 182
• Status: Published

Opinions

Opinion by

Hoffman, J.,

On 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.

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

It 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.)

In 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 Scheetz that an increased sentence after a probation violation was improper and that the court was limited to a reinstatement of the originally imposed sentence.

The instant case is controlled by Silverman and 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

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

1 Soheetz was decided when it was the rule that a sentencing judge could alter sentence within a term of court or within thirty-days thereafter. The issue is now framed in terms of double jeopardy. See, e.g., Commonwealth v. Davy, 218 Pa. Superior Ct. 355, 280 A. 2d 407 (1971). In Commonwealth v. Silverman, 442 Pa. 211, 275 A. 2d 308 (1971), decided on double jeopardy grounds, the Supreme Court reversed the trial judge who pronounced sentence on February 20, 1969, and then attempted to increase that sentence the next day.

2 Commonwealth v. Cole, 222 Pa. Superior Ct. 229, 294 A. 2d 824 (1972) is inapposite because in Cole tbe court imposed probation in “lieu” of sentencing. See also, tbe Act of May 7, 1925, P.L. 554, No. 297, §1, 19 P.S. §1051, wbicb provides, in part: “Whenever any person shall be convicted in any court of this Commonwealth of [a] crime, . . . and it does not appear to the said court that the defendant has ever before been imprisoned for crime, either in this State or elsewhere, . . . the said court shall have power to suspend the imposing of the sentence, and place the defendant on probation for a definite period, on such terms and conditions, . . . as it may deem right and proper ...” Likewise, the Act of August 6, 1941, P.L. 861, §25, 61 P.S. §331.25 provides, in part: “Whenever any person shall be found guilty of [a] criminal offense . . . the court shall have the power, in its discretion, . . . instead of imposing such sentence, to place the person on probation for such definite period as the court shall direct, not exceeding the maximum period of imprisonment allowed by law for the offense for which suoh sentence might be imposed.”