Commonwealth v. Walls

375 A.2d 125, 248 Pa. Super. 335, 1977 Pa. Super. LEXIS 1970

• Court: Superior Court of Pennsylvania
• Decided: June 29, 1977
• Docket: 232
• Status: Published

Opinions

PRICE, Judge:

On December 3, 1973, appellant was placed on probation for two years after being convicted of aggravated assault and battery. On September 15, 1975, appellant pleaded guilty to charges of criminal trespass, receiving stolen property, theft by deception, and burglary. On October 6, 1975, appellant’s probation was revoked and on October 14, 1975, appellant was sentenced on all of the above charges.

The sentences on the convictions for criminal trespass, receiving stolen property, theft by deception, and burglary were made to run concurrently. However, these sentences were all made to run consecutively to the sentence on the aggravated assault and battery conviction, for which appellant had originally been placed on probation. The lower court judge’s reason for imposing a consecutive sentence is revealed by his statement at the sentencing hearing:

“One thing I want to make sure you understand, Mr. Walls, is that according to the law we must sentence you on your old charge first, where the probation was revoked, and then we sentence you on your new charges, and the sentences on the new charges cannot begin until the sentence on the old charge is served. We cannot make them run at the same time — concurrently. That’s the law. We couldn’t make it otherwise if we wanted to, do you understand that?”

Appellant contends that this was error. The Act of June 19, 1911, P.L. 1055, § 10 (61 P.S. § 305), as amended, provides that if a person released on parole is convicted of a crime, the remainder of the sentence on the original crime must be served before commencement of the sentence on the second crime. Our court has interpreted this statute to mandate consecutive sentences for parole violators. Commonwealth v. Terry, 229 Pa.Super. 443, 323 A.2d 82 (1974); Commonwealth v. Draper, 222 Pa.Super. 26, 293 A.2d 614 (1972).

There is no statute, however, that prohibits a court from imposing concurrent sentences when a person violates probation by committing a crime. Therefore, the general discretion inherent in a lower court’s sentencing power would seem to apply. See also Pa.R.Crim.P. 1406; 18 Pa.C.S. § 1321(a); 18 Pa.C.S. § 1371(b).

We need not decide this issue, however, because appellant failed to object or otherwise bring the error to the lower court’s attention. Although we have held that a sentence which is unlawful per se cannot be waived, Commonwealth v. Richardson, 238 Pa. Super. 410, 357 A.2d 671 (1976); Commonwealth v. Lane, 236 Pa.Super. 462, 345 A.2d 233 (1975); Commonwealth v. Rispo, 222 Pa.Super. 309, 294 A.2d 792 (1972), it is also clear that some errors in sentencing may be waived. See Commonwealth v. McConnell, 470 , 368 A.2d 646 (1977); Commonwealth v. Strand, 464 Pa. 544, 347 A.2d 675 (1975); Commonwealth v. Piper, 458 Pa. 307, 328 A.2d 845 (1974); Commonwealth v. Donnelly, 233 Pa.Super. 396, 336 A.2d 632 (1975), cert. denied, 424 U.S. 974, 96 S.Ct. 1477, 47 L.Ed.2d 744 (1976).

The alleged error in this case is one that is subject to waiver, for it is no different than any other trial error which must be preserved for review by a prompt specific objection. Appellant admits that the sentence was not unlawful per se. To hold that no waiver occurred would place us in the position of ruling on important legal issues without the advantage of a trial court ruling. Such a procedure also deprives the lower court of an immediate opportunity to correct its own errors. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Therefore, appellant must be deemed to have waived the error.

Appellant also complains of the severity of the sentence. Appellant may serve a minimum of three years or a maximum of eight years in jail. If he had received the maximum sentence permissible, he would have received a sentence of up to 39 years in jail. Thus, the sentence is not excessive. The lower court was acting well within its discretion. Commonwealth v. Johnson, 235 Pa.Super. 185, 340 A.2d 515 (1975).

The judgment of sentence of the lower court is affirmed.

HOFFMAN, J., files a dissenting opinion in which CER-CONE and SPAETH, JJ., join.