*1 Appellant. v. Brown, 1973. Before Submitted November C.J., Jones, Nix and Man- O’Brien, Roberts, Pomeroy, Eagen, JJ. DERINO, Public Assistant
D. III, Benjamin Yansteenburgh, Defender, John It. Public Merrick, Defender, *2 appellant. Melody, and M. Porter, Jr., Joseph Gordon
James Lamb, H. and Assistant District William Attorneys, for Commonwealth, appellee. District Attorney, January Opinion Justice Jones, Me. Chief 1974: of the Unit- the order
Pursuant to October Eastern District of District Court for the ed States Criminal Action No. 71-1811, appel- at Pennsylvania on a 1965 murder second-degree lant was resentenced Quarter of Court Sessions of Chester the conviction that on December 1971.1 At sentence County time, one-half to ten was and years and eight returned to with a commitment prison was appellant duration. Three the days order for the same later, the court amended this increasing making term thus sentence twenty years, to This twenty years. appeal and one-half is from that order. that asserts lower court’s action
Appellant
his maximum sentence constituted double
raising
jeop-
the Fifth Amendment
and thus violated
ardy
and
Constitution
Article
Section
I,
United States
10 of
Constitution.
Pennsylvania
Commonwealth,
that
the imposition of the
contends
however,
longer
merely corrected a prior
maximum sentence
“slip resentencing
District
order
for the
Court’s
The basis
County
finding
court
the Chester
had
that
considered a subse
its
imposing
twenty year
quently
conviction
a ten
voided 1956
conviction.
on
therefore
sentencing judge
the tongue”
theory,
of this factual
In support
permissible.
factors.2
convinсing
to several
points
Commonwealth
and particu-
for
reasons
below
given
Nevertheless,
v. Allen,
Commonwealth
of our decision
view
larly
we are of the view
Pa.
The present
an
not with
increase over the orig-
sentence,3
existing
retrial
as was the case in
following
inal sentence
prior
Apparently,
resentencing,
to the initial
there was a
sentencing .iudge
in which the
chambers
indicated
conference
impose
going
twenty year
an
he was
and one-half to
promptness
Commonwealth also stressed the
sentence.
with
changed (three days)
illegality
wаs
the sentence
and the
which
originally
(eight
ten)
as
and
of the
one-half to
sentence cannot
minimum
exceed one-half the
since the
September 26, 1951,
1460, §1,
of
P.S. §1057.
See Act
original
was,
course,
case,
an
sentence in
There
this
but
present
to our
discussion
is irrelevant
as
fact
we аre here
only
subsequent
those events which occurred
with
concerned
resentencing
the federal
order of
district court
significant
not
however,
distinction,
Pearce. That
Court
Supreme
States
since
the United
here
both
court is without
held that a
this Court have also
defendant
once the
existing sentence,
to increase an
parte
See Ex
Lange,
sentence.
has
to serve that
begun
v. Sil
(18
(1873)
85 U.S.
Wall.)
;
308 (1971).
442 Pa.
275 A. 2d
verman,
our
of the instant
More
for
resolution
important
Al
in Commonwealth v.
is our decision
case, however,
an
inter
that even
len, supra,
held,
alia,
wherein we
increаse in
cor
merely designed
sentence which is
an
rect
mistake
be scrutin
judicial
inadvertent
must
ized as
as an increase which results from
carefully
reconsideration of
factors
from a judicial
or
change
dispute
of mind.4 The Commonwealth would
this
since
that an
reading
it feels
Allen, howevеr,
increased sentence to correct a
“slip
tongue”
there approved.
it is
noted
While
true
we
factors
which
negated
“slip
tongue”
in that
theory
we never indicated
case,5
that the establishment of such
a “slip” would have altered our result. On
con
trary, we there exprеssed our “agreement with those
jurisdictions holding there is no
exception
Lange
the situation where the increase is
designed
allegedly
to reflect
the judge’s true intent.
. . .”
4 Although
possible exceptions where,
there was some hint of
example,
(1)
original
below the minimum
mandatory
sentence and the mistake is cured within a few hours
(2)
where the mistake was due to a clerk’s erroneous docket
*4
entry,
opinion
prophylactic
the
of
thrust
that
indicated that a
rule
104-05,
would be more desirable.
There is, hоwever, the the one- below, of court opinion after half ten year initially imposed is federal court order is unlawful since minimum one-half Act September than the maximum. greater 19 P.S. The method of §1, §1057. however, this is not to increase correcting illegality, until the sentence comports thе maximum with as did the lower court this case; rather, statute of our ac- light foregoing discussion, appropriate tion must be to reduce the minimum term until there compliance is and under no circumstances statutory either increase minimum or term. Hence, ten is the most five to severe yeаr punishment can be on at appellant which time. this Quarter the order of the Court of Accordingly, Ses- County sions Chester is reversed, judgment and the case sentence is remanded for vacated, resen- in accordance with this tencing opinion.
Concurring Opinion Mr. Justice Roberts: I readily join opinion Court and wish on the briefly impermissible comment trial court. employed It procedure admitted
279
legal
only
has
that the
is the
sentence which
maximum
validity.
v.
Pa.
243
Daniel,
642,
(1968)
rel.
A.2d
Commonwealth ex
Carmelo
;
(1943).
it
Pa.
This case does not a issue. The years trial court a maximum ten sentence of eight years. with a Faced minimum and one-half impermissible with the minimum of and one-half years, sought later court to correct error doubling increasing thereby more than the minimum, doing years twenty. the maximum term from ten In proper the court so, misconstrued its role the sen- tencing function. In this it the maxi- is Commonwealth, legal mum term which has effect as the the minimum must conform to the maximum. See supra. may Commonwealth v. Daniel, The mаximum not be increased an mini- to accommodate excessive mum. controlling
Here trial court overlooked the fea- original namely, ture of sentence the maxi- years—is entirely legal mum—ten an sentence degree pre- conviction of second murder. The sentence degree scribed statute for murder the second is imprisonment twenty years.2 for not more than The initially imposed clearly maximum sentence falls with- statutory in limits. impossible
It is as the trial assume, court did, an statutorily- minimum excessive affixed to a illegal allowed maximum created an 19, 1911, amended, Aсt June P. L. § as 19 P.S. (1964.) Generally, § 1057 the minimum is less than one-half maximum. Act of amended, June § as 18 P.S. (1963). § excessive minimum ineffec- “nullity”. Only thus not be may The legal tive. disturbed. reason nor to believe authority
There neither half when the exceeds the maximum minimum maxi- legal entire sentence is without effect. legal *6 mum sentence nоt increased more may merely by be minimum.3 than the doubling impermissible Mr. Justice and Mr. Justice Manderino O’Brien in join opinion. this concurring 3 Project Justice, ABA on See Minimum Standards for Criminal Relating Sentencing Standards Alternatives and Procedures (Approved Draft, 1968). 6.1(b), 6.2 no §§ “Under circumstances the court be authorized to increase a term of should imprisonment imposed.” 6.1(b). once it has been § Id. Commentary Advisory Id., See also at 279-80. “The Committee clear, however, the court should not be authorized to in- imposed.” crease a sentence once it has been Concurring Dissenting Opinion by Mr. Jus- tice Nix:
Thеre can be no serious question that a sentence once not be imposed may modified or altered, amended, within even the though statutory period of thirty days1 the effect of such where modification, alteration or amendment constitutes a violation of the double jeоp- clauses of the ardy federal and state constitutions. My difference arises from the belief that this principle of has no applicability law facts of the instant In the appeal. my view distinguishing factor here is the to 10 year direct contra- 8% of the Act of September vention 26, 1951, 1460, 19 P.S. 1057.2 1,§ § L. (Supp. Act of June P. § 12 P.S. § 1032
1973-74). pertinent part: any The statute states person, “Whenever any punish
convicted in court of this Commonwealth of crime imprisonment by penitentiary, able a State shall be sentenced assign and to criminal conduct to define power of the legis the is a prerоgative sanction to be Fur lature and not the branch of judicial government. implementa may delegate thermore, legislature limita tion of to the courts and power proscribe grant. tions the exercise of the under power A. 266 Commonwealth v. 281 Pa. Sweeney, A. 61 Kalck, Commonweаlth v. 239 Pa. (1924); ex 52 Pa. rel. Bates v. (1913); McKenty, Ct. The Act 1951 directs Superior (1913). to a sentence which seeks to commit a male offender State mini must contain a maximum and Penitentiary mum sentence. force With equal provision requires that the maximum not exceed the punishment set for the crime that the lеgislature charged minimum not exceed half of one maximum imposed the court. direc Non-compliance with express tions the act to sentence can conferring only result in an ineffective and futile to exer attempt *7 cise that power.
That we
held that
have
it
is the maximum term
which has legal effеct as the
sentence,
v. Daniels, 430 Pa.
in Bozza v. United States,
This
v.
Allen,
our Court
cases. Commonwealth
prior
аnd Commonwealth
443 Pa.