Commonwealth v. Ulbrick

341 A.2d 68, 462 Pa. 257, 1975 Pa. LEXIS 878

• Court: Supreme Court of Pennsylvania
• Decided: July 7, 1975
• Docket: 11
• Status: Published

Opinions

OPINION OF THE COURT

PER CURIAM.

The appellant filed a petition under the Post Conviction Hearing Act challenging the legality of his sentence after his conviction of two counts of murder in the second degree. The petition was denied and this appeal followed.

The trial court imposed a sentence of twenty years. No minimum sentence was stated by the Court as is required by the Act of June 19, 1911, P.L. 1055, § 6, 19 P.S. § 1057. Appellant contends that the failure to announce a minimum sentence makes the sentence illegal and justifies his discharge.¹ However, imposition of a flat sentence benefits the defendant for the minimum is then presumed to be one day and he thus becomes immediately eligible for parole. Commonwealth v. Butler, 458 Pa. 289, 294, 328 A.2d 851, 855 (1974); Commonwealth v. Daniel, 430 Pa. 642, 647 n.* 243 A.2d 400, 462 n. 6 (1968); Commonwealth ex rel. Kehl v. Myers, 194 Pa.Super. 522, 169 A.2d 117 (1961); Commonwealth ex rel. Clawges v. Claudy, 173 Pa.Super. 410, 98 A.2d 225 (1953); and Act of Aug. 6, 1941, P.L. 861, § 21, as amended, 61 P.S. § 331.21. Since the minimum is implied, the sentence is legal and the appellant has incurred no harm.²

Order affirmed.

ROBERTS, J., filed a concurring opinion. POMEROY, J., filed a concurring opinion.

1 . Assuming arguendo the sentence to be illegal, the proper remedy would be to remand for resentencing, not discharge. See, e. g., Commonwealth v. Swingle, 403 Pa. 293, 169 A.2d 871, cert. denied, 368 U.S. 862, 82 S.Ct. 107, 7 L.Ed.2d 59 (1961).

2 . The trial court modified the sentence to reflect this immediate parole eligibility. This formal modification occurred after the time permitted by statute. Act of June 1, 1959, P.L. 342, § 1, 12 P.S. § 1032. Appellant cites this late correction as an additional ground for the invalidation of his sentence. The modification, however, only verbalized that which the law already recognized.