225 Pa. Super. 53 | Pa. Super. Ct. | 1973
Dissenting Opinion
Dissenting Opinion by
This appeal presents the question of whether or not the trial conrt erred in increasing appellant’s minimum
Appellant Michael Diamond was charged with fraudulent conversion, larceny by employee, and two counts of forgery. On May 22, 1972, he was tried before the Honorable John Justus Bodlby, sitting without a jury, in Bucks County. After the presentation of the evidence, the court found appellant guilty on all counts. On August 24, 1972, Judge Bodlby sentenced him to a term of not less than five months nor more than five years in the state penitentiary. Several hours later the judge learned that the appellant had attempted to escape while being transported to the sheriff’s van. The trial judge ordered that the appellant be returned to the courtroom for resentencing; Judge Bodlby then imposed a sentence of not less than one year nor more than five years upon appellant. Defense counsel was not present at this proceeding, but the court later reimposed the one to five year sentence in the presence of appellant’s counsel.
Appellant contends that his constitutional right not to be twice placed in jeopardy was violated when the trial judge imposed a harsher minimum upon him. The Commonwealth argues that double jeopardy does not attach where the court increased the minimum sentence because the minimum sentence is an administrative guideline and not a penalty imposed by the court. To bolster this argument, the prosecution cites Commonwealth v. Kalck, 239 Pa. 533, 87 A. 61 (1913) and its progeny: “ ‘. . . it necessarily follows that the maximum sentence is the only portion of the sentence which has legal validity, and that the minimum sentence is merely an administrative notice by the court to the executive department, calling attention to the legislative policy that when a man’s so called minimum sentence is about to expire, the question of grace and mercy
Although the parole board may deny appellant’s request for parole and require that he serve the maximum sentence, the imposition of a harsher minimum sentence herein deprives the appellant of the opportunity to request parole at an earlier date. Thus, the imposition of a harsher minimum is of vital importance to the appellant; it is more than an administrative guideline. It is a crucial factor in determining when the appellant can and will be released from prison. “[T]he liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a ‘grievous loss’ on the parolee and often on others. It is hardly usef ul a„ny longer to try to deal with this problem in terms of whether the parolee’s liberty is a ‘right’ or a ‘privilege’. By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment.” Morrissey v. Brewer, 408 U.S. 471, 472, 92 S. Ct. 2593, 2601 (1972). Just as the parolee’s liberty is valuable, the right to request parole at the earliest possible date is of vital importance to the prisoner. To say that the Fifth Amendment rights of appellant have not been violated by the trial court’s imposition of a harsher minimum sentence upon appellant is to disregard reality.
California and New York Courts have dealt with a similar issue and held that a minimum sentence may not be increased upon retrial.
The California and New York decisions set forth the principle that an increase in the minimum sentence imposed upon a man subsequent to the initial imposition
The order of the lower court should be vacated and the original sentence reinstated.
North Carolina v. Pearce, 395 U.S. 711 (1969) seta forth the instances in which a harsher penalty may bo imposed upon retrial. I'hese instances are not applicable herein. In Chaffin v. Stynchcombe, 411 U.S. 903, 93 S. Ct. 1977 (1973), the United Stales Supreme Court ruled that a harsher sentence may be imposed on retrial in states where the jury pronounces sentence; this may be
Lead Opinion
Opinion
Judgment of sentence affirmed.