*2 WICKERSHAM, WATKINS, Before POPOVICH and JJ. WATKINS, Judge: appeal judgment
This is a direct from the of sentence appellant’s after revocation of Ter- probation. Appellant, Gallagher, rence filed reconsideration timely petition was We of his sentence which denied. affirm the decision of the court below.
Two raised issues are out of the follow by appellant set facts. On after II ing February Gagnon hearing,1 appellant’s probation of seven was revoked. During colloquy, following exchange oc *3 between appellant curred and the sentencing court: You [Appellant] know, you “MR. GALLAGHER: just making mockery a out of justice.
THE COURT: I am?
MR. Yeah. GALLAGHER: Well, THE COURT: just minute. Come back here. I add a little time it. will more on to gave you years I three and I will revoke that sentence. I will make it three and a half to seven years. Attorney] MR. O'DRISCOLL [Appellant’s Honor, : Your I might if I that think client is in say my a distraught I state. would ask the Court to reconsider not adding to his anything additional sentence.
I think he is all and I raught (sic) don’t think up that upon reflection he would some of the say things perhaps he said that to the Court. revoking probation, “(1) to preliminary
1. Prior a court must hold hearing probable to determine whether there was to cause believe probation (2). hearing violated has his and [a defendant] a final prior probation to the ultimate decision whether [to determine] his preliminary hearing probable be should revoked. The to establish Gagnon hearing hearing is I cause known as a and the final is known Gagnon Williams, hearing.” Pa.Super. as a II Commonwealth 308, 310, A.2d THE COURT: That is a matter for him to decide and not I Mr. O’Driscoll. am sure would not you, you say them. ask, I would Your Honor— just
MR. O’DRISCOLL: Honor, Your I think that the bitter- MR. GALLAGHER: know, I feel I justice you ness that towards system can’t that. I can’t bitter about the I help help being way feel towards you people. That is all right.
THE COURT: The justice
MR. GALLAGHER: system. THE COURT: I I gave you probation. grave made a mistake then but I am to correct it trying just now. MR. GALLAGHER: What it your opinion—is your honest is to opinion prison going me? help No, THE COURT: it isn’t. Well,
MR. GALLAGHER: don’t to find why you try something that is to me? going help THE I am to going keep you COURT: out society. MR. GALLAGHER: don’t me in a Why you put program five years long something? Something that is or that will be beneficial.
THE COURT: You will have a there. I program up understand do they program. have Oh, MR. GALLAGHER: work butt off. That yeah, your The is your program. program all and day, get up go is, work. That is all it Your Honor. call
Do that a you program? never, God, THE COURT: I don’t know. I have thank *4 in before. jail been see,
MR. GALLAGHER: You I ain’t to be a smart trying ass.
MR. GALLAGHER: The is that I can’t mockery part well, hell, can sit see—you honestly just there and oh say go ahead and take another three and a half of his years life or three or whatever.
THE I COURT: am to make an Order to make it trying perfectly clear to that when come out don’t you you you stealing— start
386
MR. All are you doing GALLAGHER: is making me more bitter and more hatred me. upon — THE COURT: Well Honor,
MR. take, GALLAGHER: Your what would it you know, for me get out and so damn get embittered with hatred I just get and gun just start at shooting people and say piss everybody.
THE COURT: I think that is true. But I probably would not recommend it to you. No,
MR. GALLAGHER: I wouldn’t recommend it either. know, You it could eventually happen. Yes,
THE COURT: I know. I am sir, very sorry, but you should have of all of this a thought long time ago. I gave probation. I on seven you put you years probation. What did do? You came out and you no sooner were out you you but were—
MR. Honor, GALLAGHER: Your just round about way, you just telling me to shut up. No,
THE I am COURT: not.” Appellant contends that he placed was in jeopardy twice. He contends that the court below revoked the initial sen- tence on the imposed probation violation and subsequently imposed a harsher sentence as a direct result of appellant’s criticism.
Our Court has Supreme held that modification of a on a criminal defendant which increases the punishment constitutes violation of the double jeopar clause. dy Commonwealth v. Pa. (1971); denied, A.2d 308 cert. U.S. 92 S.Ct. L.Ed.2d 794 The prosecution concedes that Silver- man stands for the principle herein cited but contends that this because principle inapposite there was only one sen tencing (i.e., order period incarceration of three and one half to seven which was years) docketed by Clerk of Courts of Montgomery County, the three year “sentence” having been and not orally imposed docketed was without effect. legal During colloquy court below initially *5 indicated that he sentence the appellant would to a term of However, of imprisonment three to seven after indi- years. this, the court a final cating imposed sentence of three and one-half to seven based the defendant’s conduct upon during the which sentencing colloquy clearly indicated the fact he appellant’s dangerous propensities, had no his remorse for crimes and his utter for the contempt legal process. Such factors became known to the during court attitude, A criminal sentencing colloquy. defendant’s in- cluding conduct, a lack of contrition for his criminal of one criteria which a proper upon exercise its may Therefore, discretion in sentencing. we hold that the court sentence, but one three being and one-half to seven years. also
Appellant
claims that
the sentence is unjustly
harsh and manifestly excessive under the circumstances
because
court failed
to state on the record
the reasons for the
of a sentence
imposition
of total confine
ment. Commonwealth v. Riggins,
474 Pa.
The colloquy reveals and the trial court’s ade- opinion manifest a quately balanced consideration of the relevant factors which the court to compelled a sentence impose total confinement. quote We from the court’s opinion:
“Defendant violated his flagrantly probation. Six months from the time he was released from Federal he prison, was arrested and charged with the same type criminal offenses for which he was originally placed probation. It is obvious he is not likely respond to further proba- tionary treatment. Defendant was given an unusual op- to be portunity decent but chose to continue his total disregard and laws. authority other Anything than total confinement would be inappro- priate. Defendant has a criminal long record. He has done nothing to show that he has even barely attempted to alter his behavior. Restrictive measures are required
order to protect society from being further victimized by his criminal conduct. Defendant’s long of criminal history activity and encounters with the law are the result of his confirmed, unchangeable criminal attitude towards society and its rules.
By pleading to a of the guilty felony third degree, defend- ant knew he could be sentenced to prison for a maximum seven, and fined $15,000.00. up 18 Pa.C.S. 3903(a), 1103(3),1101(2). Sections The sentence of three and one-half to seven years within the statutorily pre- scribed limits.
In light the considerations mandated for sentencing, defendant’s sentence excessive, is not and any sentence less than that imposed would have tended to depreciate the seriousness of the offenses committed.
The sentence was proper and the appeal should be dis- missed.”
The Court’s opinion and a thorough examination of the record thus manifest a consideration of the statutory guide- lines for and sentencing, because the sentence imposed was within the limits, statutorily prescribed this Court will not the disturb sentence as harsh or unduly manifestly exces- sive. of sentence
Judgment affirmed.
POPOVICH, J., files a dissenting opinion. POPOVICH, Judge, dissenting: I must dissent. Appellant was placed in twice jeopardy when the court revoked the initial sentence imposed on the probation violation and subsequently imposed a harsher sen- tence as a direct result of appellant’s (i.e., criticism “You know, you just making out mockery of justice”,) to the court; therefore, the additional period of incarceration should be vacated.
The majority concludes that the court imposed only one sentence, the sentence of three years was imposed orally and was without legal effect. This writer cannot agree. Taking would extension logical to its argument prosecution’s violation jeopardy no double se rule in which per create had been an orally ever occur where could Com- suggestion such rejected This Court increased. 272 n. 324 A.2d Foster, Pa.Super. monwealth Foster, we said: In 540 n. 4 do not a situation course, pose facts of this case “Of a sentence pronounced orally where some subsequently, and of the defendant presence in the more severe sentence entered a hearing, time after the to the facts of is much closer record. This situation we are not concerned is one with which and *7 added.) (emphasis here.” with, legality court’s review of appellate
To
an
begin
in the
limited to the
contained
language
a sentence is not
of
115,
474 Pa.
Riggins,
order. See Commonwealth
docketed
in
also must be
imposed
140
That sentence
377 A.2d
42
guidelines.
with certain
See
Pa.C.S.A.
accordance
and Id. One of
9725,
seq.,
Pa.R.Crim.P. 1401et
9721 and
§§
“trial court . . . state
is that the
requirements
the most basic
Id.,
record,
imposed”,
the reasons for the
on the
24,
24,
“[w]ithout
can discern
how an
court
perceive
appellate
difficult to
‘within
its discretion
the trial court has exercised
whether
of
the consideration
including
limits
certain procedural
” Id.,
Thus, contrary of the to an examination court is not restricted appellate docket entries as inserted on the we of sentence judgment sentence was to determine if that must examine the record guidelines. set within established that notion Common- rejected Court Supreme Our said: Riggins, In the Court Riggins, supra. wealth v. . . . against have warned judges and wise “Eminent [ ] judgment, they Our statement [requiring reasons]. And, to attempt reasons. it is vain is better than our say, explain to the exact attributable our inter- proportions to retribution, reform, deterrence, punishment, est in even But these valid? there vengeance. arguments For grave danger sentencing judge will allow his emotions or other transient The factors him. sway strongest is for act safeguard him to after formulat- only a statement of the ing considerations which he allows himself to take into account.” “A (Quoting Wyzanchi, Judge’s Trial and Responsibility, Freedom 65 Harv.L.Rev. 1281, added). 1292 (1952) (Emphasis Id., Pa. at n. 377 A.2d n. at 17. reasons Upon examining statement of in the record us, it before is clear that the court trial “allowed his emo- and, him”, thus, tions to he sway when an addition- al sentence of six months imprisonment violated the princi- forth ples Silverman, set in Commonwealth v. supra. In trial orally court imposed a sentence which would have been suspended if federal authorities committed the to a defendant for the program rehabilitation Id., narcotics users. 442 Pa. at A.2d at The day, next the trial said he had “second about thoughts” his actions of the because of a previous day he report had received in the meantime which informed him of other charges criminal currently pending against A Silverman. *8 imposed new sentence then was directing defendant to the of serve a definite term imprisonment. Our Supreme Court
reversed the trial
and said
court
that “a
modification
a
imposed
sentence
criminal defendant which increases
Id.,
the
is double
punishment
217,
442
jeopardy.”
Pa. at
275
311. Similarly,
A.2d at
this writer finds
the
that
trial
statement, “Well, just
court’s
a minute. Come
here.
back
I
will
(N.T.
add
little more time on to
39),
it”
which was
the
made after
court had
imposed
sentence of three to
seven
to the
analogous
“second
enter-
thoughts”
Silverman,
tained
the trial
in
by
hence,
court
and
the subse-
quent modification of that sentence which
appel-
increased
lant’s sentence to a minimum of three and one half years
violated double jeopardy. The fact
the “second
instead of on the next
occurred
thoughts”
instantaneously,
alter the applicabili-
in
does not
as did occur
day
stated.
principle previously
of the
ty
in a
case.
course,
proper
a sentence
may modify
Of
a court
However, where a sentence has
Pa.R.Crim.P. 1410.
See
which the
increased,
upon
“the factual data
increased
been
record,
of the
so that
part
is based must be made
data
[a]
of the increased sentence
legitimacy
may
the constitutional
Riggins,
Commonwealth v.
appeal.”
reviewed on
fully
be
added). The
126,
(Emphasis
at
392
The concludes that the could “the majority consider fact that had no for his [appellant] remorse crimes and his utter for the At While contempt legal process.” 822. this does issue writer not take with the a defend principle that attitude is a factor in proper ant’s to .be considered deter a mining sentence, is principle inapplicable where a been A sentence has defendant who en already imposed. in the gages presence behavior in the court contemptible of a already after sentence has been be imposed can held in however, is contempt; a and distinct separate legal proceeding which the court here could have easily Rubright, 356, invoked.2 See Commonwealth v. 489 Pa. 414 A.2d 106 this writer also must
Additionally, reject prosecution’s that because a implication consideration in court’s weighty of the double issue analysis jeopardy should be whether a sentence, to defendant has serve his begun different result obtain instant would in the case because appellant had not thirty prior day period light if the term of court terminated to 2056, Maryland, 395 of Benton v. U.S. 89 S.Ct. L.Ed.2d 23 707 ” Thomas, Id., (1969).... Pa.Super. v. Commonwealth 219 at Thus, added) (Emphasis A.2d at 653. the court disallowed the though controlling increased sentence even record is the it said in dictum that “the upon of endorsement the sentence the back of the indictment, signed Thomas, Id., by judge.” Commonwealth v. Pa.Super. A.2d at at 654. validity Secondly, appear of the Zelnick case to would be by supra, eroded v. Commonwealth and Commonwealth Zelnick, Riggins, supra. v. In this Court allowed the increase of a power original because a has full sentence “court reconsider the long during and to or so sentences the reduce increase them as the term original expired,” was had not and also be- firmly cause “it is that the of established extent sentence is a matter judge of within the discretion within at the trial and will not be disturbed if statutory Zelnick, Pa.Super. limits.” Commonwealth However, 195 A.2d 173. at since Commonwealth v. Silver- man, supra, supra, Riggins, authority and Commonwealth v. a court’s defendant, above, to sentence a as discussed has been circumscribed. Although ruling not whether the evidence in case this would supported contempt conviction, have power we note that a court has the to, summary punishments contempt “inflict of court” any which person restricted inter alia to a case “the where misbehavior court, presence thereby in the of the the adminis- obstructs] justice”. tration 42 Pa.C.S.A. 4131. § *10 was when the increased sentence to serve his sentence begun never been considered to be the a factor has Such imposed. is whether determining litmus test only Brown, 274, 277, Pa. v. infirm. See Commonwealth our Court said “More (1974) (where Supreme A.2d case, however, is of the instant for our resolution important held, alia, even an . . where we inter that our decision to correct an designed in sentence which is merely increase must be scrutinized as judicial carefully inadvertent mistake of sen- which results from a reconsideration as an increase mind.”) (foot- judicial change factors or from a tencing added). the instant omitted) (emphasis Similarly, note case, has scrutinized the record and determined this writer not with the re- comport the increased sentence did of this Court. quirements one would is disagree perhaps
No soul-searching judicial most difficult and of all functions. that such an function precisely important That reason cannot and should not be out of discharged impulsively, Because pique impatience. or See footnote infra. indicates that the instant sentence was imposed pre- record reason, I register for that must dissent. cisely my
Superior of Pennsylvania. Court May 1981.
Submitted Filed March