Commonwealth v. Colding
352 A.2d 554
Pa. Super. Ct.
1975
Check Treatment

*1 that may, as it the Act however, makes clear that itself it is not trespass a bar to the (Emphasis action.” Id. added). escape

I cannot this statement. Nor could the Court of Appeals for the Third Circuit in Hartwell Allied Corporation, supra: Chemical “The disease from which plaintiff in Perez suffered was not nor did it listed, fall just within the quoted. clause Since it therefore ‘occupational meaning disease’ loithin the Act, Supreme exclusivity held Court clause Occupational Diseases Act could not constitute a bar to the (Emphasis common law added) action.” F.2d

I concede Supreme that neither the Court Perez nor Appeals expressly Court of in Hartwell ruled argument they not, raises here: did is, expressly interpret given the effect to be “any clause method of thereof,” determination in Section 303, 77 perhaps P.S. I also concede that on allo- §1403. catur, appellant persuade Supreme will able to holding retreat from its However, even Perez. persuaded if I were -and, that the Court should retreat — said, as I have I am not —until it we must follow does, it. I would court, therefore affirm the order the lower denying appellant’s judgment pleadings. motion for on the Colding, Appellant.

Commonwealth v. *2 Watkins, J., March Submitted Before 1975. P. Jacobs, Hoffman, Cercone, Voort, der and Price, Van Spaeth, JJ. Benjamin Defender, Packet, Assistant

John W. Lerner, appellant. Defender, for

Hugh Colihan, Sendrow, and Mark Steven H. Gold- Gafni, blatt, Attorneys, District Abraham Assistant J. Fitzpatrick, Deputy Attorney, and F. Emmett District appellee. Attorney, Commonwealth, District Opinion by Jacobs, J., December 1975: aggra- 1972, appellant pled guilty December On robbery Term, vated on Bill No. 1938 October date, the same he was sentenced to a term of confine- On years.”2 15,1972, ment1 for “time in December to four On hearing held to The trial reconsider sentence. court vacated the sentence of December *3 placed appellant years probation the on four with same 5, 1974, appellant condition as restitution. On June proba- the of found have violated conditions appellant’s The trial court revoked probation, tion. sentenced him to a term of confinement of one and one- computed half to three years, sentence to be from Janu- ary 8,1974. This followed. appellant imposed contends that sentence

after revocation of is violative of the double jeopardy proscription3 in that the minimum of sentence Appellant

1. to the was also ordered make restitution complainant. appellee agree

2. Both that the sentence of days years. imposed was two months seven to four confinement prohibi- the Fifth Amendment 3. It is now established jeopardy applies against through tion to the states double Maryland, (1969). Fourteenth Amendment. Benton 395 U.S. 784 Moreover, clearly Pennsylvania the law that a ‘modifi- “[i]t imposed on a criminal defendant in- cation of a sentence which years one and one-half exceeds the minimum sentence originally imposed.

Initially, we must decide appel- whether or not the lant properly has proscription against invoked the double jeopardy; many we must determine how sentences have imposed. been See Commonwealth v. Foster, 229 Pa. Superior 269, (1974). Ct. 324 A.2d 538 case, original the instant sentence was "va- cated.” In Commonwealth Tomlin, Superior 232 Pa. Ct. 147, 150, 336 A.2d (1975), 407, we stated effect vacating of indistinguishable a sentence is from cases in suspended.4 which a Vacating definite sentence is original sentence does render the sentence void purposes of jeopardy. Therefore, double our attention is properly original focused on two sentences, sen- punishment creases jeopardy.’ or further constitute[s] Silverman, 211, 215, Commonwealth v. (1971); 442 Pa. 275 A.2d 308 see Davy, Superior 355, also Commonwealth v. 218 Pa. Ct. (1971); Jackson, A.2d 407 Superior Commonwealth v. 218 Pa. Ct. 357, (1971).” A.2d 422 Commonwealth v. 232 Pa. Superior 407, (1975). Ct. A.2d Cole, In Commonwealth v. important considering A.2d 824 distinction was made in whether or not a of a modification after revocation of probation, was violative the double clause of Fifth We drew a distinction between modification of a Amendment. “suspended period probation” pending a sentence which was (Act May 7, 1925, §1, §1051) P.L. 19 P.S. and the modifi- sentencing (Act in lieu of cation of an order August §25, §331.25). held 61 P.S. P.L. We period judge suspend pending when . . chooses may probation, if re-sentence the defendant he trial *4 period the probation. maximum re-sentence is violates that The limited, however, which the to the term under maximum defendant Cole, 231, supra originally at sentenced.” Commonwealth v. was added.) However, (emphasis the trial when 294 A.2d at 825-26. period statutory option imposing a . the exercises sentencing sentencing, probation lieu of the court defers words, imprisonment. ... In other term of defendant fixed 616 subsequent sen- years,” and the “time in to four

tence of years.5 three tence of one and one-half jeo- involving claim of The seminal case (1969), Pearce, pardy 395 U.S. 711 is v. North Carolina resen- problem and of reconviction dealt with which original by defendant, tencing appeal on where in North Carolina been set aside. The Court sentence had the double supra that neither Pearce, held . . v. at 723 “. im- provision Equal Protection Clause nor the sentence poses to a severe an absolute bar more due concluded that the Court However, reconviction.” against defend- process requires that vindictiveness .. conviction having successfully his first attacked ant for new part he receives after a play must no sentence may vindictiveness the fear such And since trial. unconstitutionally exercise of deter a defendant’s conviction, collaterally attack his right to or first freed of process requires that a defendant due also part retaliatory motivation on apprehension of such supra Pearce, judge.” v. sentencing North Carolina “ n (footnote omitted). The then held [i] at 725 setting term of is not a of the term of impose a may on the court not act a limitation as probationary period, not in years greater a term than particular offense.” Id. fixed law for of the maximum excess 232, A.2d at 294 826. 147, 150 Tomlin, Superior n. Ct. v. In again the distinction (1975) articulated we A.2d n. Cole, supra. in Commonwealth v. made Superior holding 232 Pa. The in Commonwealth controlling. case is factu (1975) A.2d Ct. Tomlin, supra, after ally distinguishable. In Commonwealth court increased appellant’s revoked the trial case, the instant minimum the maximum and the sentence. both decreased, only in the minimum was the maximum was Scheetz, Superior Ct. 217 Pa. creased. refused, l dis A.2d allocatur tinguishable for the reason. same

617 motivation, we have of such the absence to assure order imposes judge a more severe concluded that whenever the reasons trial, new defendant after affirmatively appear.” North Caro- doing must his so for added). Pearce, supra (emphasis lina supra in the Considering Pearce, North Carolina v. appellant’s reject appeal, the the we context of instant sentence is in minimum that the increase his contention “legal” sen- constitutionally appellant’s proscribed. The sentence, “legal” severe,” fact, “more tence is not sentence, was decreased. the maximum Superior Ct. Diamond, 225 Pa. Commonwealth v. appellant (per curiam), was the 53, 308 A.2d 137 than five months originally to a term of not less sentenced years penitentiary. in the Several more than five state nor judge imposed, the trial hours after this sentence escape attempted while appellant that the had learned The trial being transported to the sheriff’s van. for the courtroom returned ordered the resentencing, a harsher minimum. and placed in appellant contended that he was twice imposed. affirmed minimum was We the harsher when opinion. per judgment curiam without the of sentence is stated a sentence that “. . whether It is well settled . purely for a or is in terms of minimum and maximum the real term, is the maximum sentence indeterminate Daniel, sentence.” Supreme our (1968). Further, A.2d 533, 541-42, Kalck, stated (1913) (construing the Act of June A. requiring for §6, sentences §1057, P.L. 19 P.S. pur “Assuming, do, term): as we indeterminate constitutional, pose statute, it interpreting that necessarily sentence is it follows that maximum only legal validity, portion and sentence which has merely minimum sentence is an administrative calling department, notice court to the executive man’s legislative policy when a attention to ques- expire, minimum sentence is about so-called grace mercy ought be considered tion of propriety granting qualified pardon be determined.” (emphasis added.) imposition minimum conclude of a cannot

We “legal validity,” . a sentence that has no *6 freedom unquestionably on the defendant’s a restriction meaning liberty deprivation his within the and a of of Vivian, Amendment.” v. the Fourteenth Commonwealth (emphasis (1967) A.2d 305 added) .6 significance have

While the minimum sentence does parole until eligible defendant, for in is not for a that he expiration term,7 restric- there is no of the minimum constitutionally protected defendant tion of a A freedom. right parole. not Commonwealth does have an absolute to (1971).8 Brittingham, v. A.2d 83 Pa. Vivian, 231 A.2d v. 6. placing (1967) placing person probation a on was it was held that in the Fourteenth “. . . in as that term is used him Amendment.” Id. at 231 A.2d at 306. August 24, 1951, 1401, §4, Act P.L. 61 P.S.

7. of §331.21. Brewer, Morrissey language v. are mindful of the We liberty parolee, (1972) of a that “. . . the 408 U.S. indeterminate, many un- although the core values of of includes ‘grievous qualified liberty loss’ on termination its inflicts try longer hardly any parolee to on It useful and often others. is liberty parolee’s problem in of whether the to deal with this terms liberty name, By ‘right’ ‘privilege’. is or a whatever is protection of the Fourteenth must be seen as within valuable and process, orderly however termination some Amendment. Its calls for appli- However, language (emphasis added.) this informal.” parole. involving right The a defendant’s initial cable issues Morrissey Brewer, supra, requirement v. extended liberty. process procedural to the termination of a conditional due Burson, (suspension of a Bell v. 402 U.S. 535 also See Kelly, (1970) (termi- license); Goldberg v. 397 U.S. 254 motorist’s benefits). of welfare nation supra,

Further, Pearce, North unlike Carolina right exercise where a defendant’s not a situation might collaterally attack first conviction or supra Pearce, at 725. North Carolina be deterred. imposed, Instantly, minimum was new when probation viola- appellant the trial court as a before was appealed not, prior claim- thereto, had tor. improperly ing are that his revoked. We pattern procedural a factual nor confronted with neither right “chilling” evidencing potential of a defendant’s having appeal, consequent “vindictiveness” for nor pursued appeal. successfully nothing constitutionally suspect trial in a findWe after discretion, to exercise its and, court’s decision revoking probation, the minimum term which increase mercy serve of “. . question a defendant must before . grace ought considered. .” or . originally imposed

Kalck, supra. The minimum sentence was a function the trial court’s assessment appellant’s prospect Violation rehabilitation. light upon the “. new conditions of casts . . *7 ‘life, health, habits, conduct, and mental and defendant’s propensities’ moral Williams New U.S. York, North 93 L.Ed 69 S. Ct. 1079.” Carolina Burson, supra, relevant In Bell v. the Court considered the power entitle- constitutional restraints on “. . . state to terminate an ‘right’ ‘privi- the entitlement a or a ment whether is denominated lege’.” (emphasis However, specifi- added.) Id. at the Court cally stated that the statute directed that licenses “[i]f [which suspended accidents, they post involved in be for motorists unless security] barred the issuance of licenses to all who did motorists carry. liability post security, or who insurance did not not, cases, under our violate the Fourteenth Amend- statute would added). (citations (emphasis omitted) ment.” Id. at 539. restricting impediment person’s

There no is constitutional in a eligibility although, parole, paroled, once the “conditional lib- erty” protection procedural cannot be terminated without of due process, regardless parole “right” of whether is or a considered ' “privilege.” supra Pearce, a defendant violates the 723. When probation, court, light

conditions in trial subsequent imposition events to the first may its re-assess initial determination of the defendant’s prospect for rehabilitation. There is constitutional no impropriety in increasing the minimum sentence in order effectuate re-assessment. judgment of sentence is affirmed.

Concurring Opinion Voort, Van der J.: fully by my I concur in colleague the result reached Judge disagree theory I with which the Jacobs. result it, is reached. As I see issue involved in this vacating is whether or not the sentence of imprisonment impose in probation order to a sentence of completely original (hereinafter nullifies the sentence sentence). opinion referred to as the first The lead states the first where sentence is a term of vacated and probation imposed upon probation violation of the may sentence which for such violation is specified limited to the maximum in the sentence. first As I wrote vacating (1975), 336 A.2d 407 imprisonment impose period

of a sentence of in order to nullify completely should the first sentence any and the subsequent court should not be limited in sentence in event of violation of the (now nullified) what was stated the first sentence. vacating I of the believe first sentence renders including purposes void for all that of a jeopardy. claim of sentencing

The reason for this of mine belief great depth art requiring knowledge, is a delicate *8 profound understanding, ability to firm be at one time, compassionate competency at another and to know when be the one when to be the There other. many are of con- cases when line between a sentence probation imposed upon per- finement one guilty Judges extremely son found of a crime is fine. imposing frequent- sentences of confinement in such cases ly make the sentence less Then of the severe. because subsequent pleas prisoner, of counsel on behalf of the or family prisoner pleas prisoner of the of the himself or judge persuaded change proba- the sentence to many right. tion. In it cases this works out all But where right judge does not work out all and the is faced with imposing a sentence for violation of he now “booby trapped”. longer finds he is He can no exercise discretion; sentencing longer his thus is no As an art. consequence of this current rule of I believe the law first sentence to confinement will now tend to be unneces- sarily judge unduly severe because the will be afraid of limiting change sentencing himself should he probation. Furthermore, sentence to one of will change now hesitate to sentences from confinement change in cases such a much the better where society. for by opinion encouraged

I am the fact the lead regards the first sentence as ineffective insofar as hope minimum sentence is I can that the law concerned. day one be that the insofar will first sentence is ineffective any part as of the sentence is concerned.

Dissenting Opinion J.: Spaeth, appellant’s majority holds that an increase in following parole, minimum revocation of his pose problem jeopardy. rationale does of double Its position only is that the maximum sentence has legal us, and in the case before the maximum validity, disagree. sentence was I decreased. my view, an increase in the sentence is minimum significant deprivation liberty, mini- even if “..

622 purpose mum sentence the of serves sole administrative parole the to notice court authorities.” Commonwealth Brotan, 274, 279, v. Pa. 314 A.2d 509 change in J., concurring). The effect the (Roberts, substantially appellant’s minimum to increase sentence is days (from one one-half two and seven and months prison years) period the time in he must remain being parole. for v. before considered Commonwealth (1971), Silverman, 442 Pa. 275 A.2d Supreme that of a sen- said a modification “. . . tence which increases on criminal defendant eligi- Delaying punishment jeopardy. is double . .”. thereby bility parole punishment,” “increases and for against punishing bar violates Fifth Amendment’s a defendant for the same twice offense.1 Supreme in v.

The discussion Court’s (1974), mini- Butler, of the 328 A.2d 851 Pa. parole supports ana- mum it relates this sentence as lysis. sub- There said: interests are more the Court “Few lawfully-imposed than from confinement stantial freedom pub- Indeed, parole is a fundamental [citations omitted]. (1964). policy of lic §331.1 Commonwealth. P.S. may opportunity society, in Parole mean an start anew person’s may step 'rehabilita- be a determinative in a and economic tion, adjustment, restoration to social and ” 296-297, at 856. life.’ 458 at 328 A.2d Pa. holding Butler, Although the constitutional parole predicating eligibility for of sex on basis immediately the case relevant unconstitutional, is not analysis significance parole us, of the before Court’s in estab- importance minimum eligibility parole for is relevant. lishing a defendant’s is'no Here, majority has concluded “[t]here against made prohibition has been 1. The through Ben- applicable Amendment. to the States Fourteenth Maryland, (1969). ton v. U.S. 784 eligi restricting person’s impediment constitutional 618-619, 8.n. Majority opinion bility parole. . However, Butler, context read may such says there well be Silverman, supra, impediment. distinguishes majority both Commonwealth (1975), Superior 147, 336 A.2d 407 Ct. 232 Pa. Superior Scheetz, Ct.

and Commonwealth I refused, allocatur 268 A.2d judge had in- the trial in those cases (1970), because *10 I and minimum sentences. the maximum both creased only. Both cases estab- factual regard distinction as sentence after principle that an increased “. . . lished court improper and that the was violation originally sen- limited to a reinstatement supra, tence.” v. They require trial did not A.2d at increasing only sen- the maximum refrain from theory to me identical Rather, their seems

tence. any supra: new sentence Silverman, punishment violates represents an increase jeopardy. prohibitions against and Federal State Pearce, 395 case like This is not a North Carolina reversal (1969), in the defendant had won which U.S. 711 and resen- subsequently reconvicted and was on held majority states, the Court There, as tenced. provision nor the double “. . that neither more imposes to a protection an absolute bar equal clause Carolina reconviction.” North severe sentence being punished Pearce, supra Here at 723. severely having reconvicted. been more without judgment reasons, reverse the I would For these resentencing court for and remand to the lower opinion. consistent with this opinion. J., joins in this

Hoffman,