*3 KELLY, Before HESTER, POPOVICH and JJ. POPOVICH, Judge:
This is an from the judgment of sentence entered 31, 1988, on March the York Court of County Common Pleas, following conviction on the charges of rape robbery March The con- *4 tends we should vacate his sentence due to the inexcusable delay of over and seven one-half years between the denial of his post-verdict motions and sentencing. In the alterna- tive, the appellant contends that we should the compel court lower to enter the same sentence as that originally imposed. disagree We and affirm the judgment of sen- tence.
The record following procedural reveals the history: On 21, 1980, March after a trial the jury, appellant was convicted of rape robbery, and at 1009 Criminal Action on argued were filed and motions Timely post-trial 1979. denied, sentencing and was 8, His motions were July 1980. 8, E. Erb 8, Judge Joseph August 1980. August for On set ten to imprisonment of of appellant the to a term sentenced a term of charge on and consecutive rape the twenty years charge. robbery ten on the years to five counsel, Pell, was Attorney new August On September On represent appellant. to the appointed counsel, and prepare would be unable fearing he 1980. 8, 1980, Pell the petitioned appeal by September file an sentence, the sen- reimpose appeJant’s the court vacate for entertain a motion at a later date and then tence Hearing a and Post Conviction reconsideration of sentence Judge granted Erb the motion Act at that time. petition hearing sentencing another following day, scheduling the hearing, actually sentencing At the for October 1980. requested postponement counsel a held on October transcription that grounds complеted. proceedings had not been subsequent and sentencing until agreed postpone Judge Erb the record It is from transcript completed. apparent was by April completed filed transcript was for was inexplicably, date filed. set, never and no burglary Meanwhile, rape, was convicted appellant in a similar but unrelated aggravated factually assault case, day Action 1979. Later at 1060 Criminal A. sentenced 16, 1980, Judge Emanuel Cassimatis October twenty of ten to of incarceration term term of five a consecutive on the conviction and years rape conviction; an aggravated years burglary to ten on the rape conviction merged into assault conviction was record, it clear that From sentencing purposes. consecutively run sentence to Judge Cassimatis intended (and ap- subsequently vacated imposed to that previously Judge knowledge) by Judge parently without Cassimatis’ Erb. *5 April
Subsequently, counsel for the appellant, Pell, filed a Attorney petition alleging PCHA the ineffec- counsel, tiveness Oare. Attorney Simultaneously, pro se a appellant filed petition PCHA alleging ineffectiveness counsel, of current Pell. Attorney Conse- counsel, new quently, Attorney Kelly, appointed, was hearing PCHA postponed was order to allow new counsel to file petition. 25, 1983, an amended On May hearing held, PCHA support was briefs in in opposition filed, and, to petition 20, 1985, finally, were on March the appellant’s petition post-trial for relief was denied. On 19, 1983, April notice of from the appeal denial of PCHA relief However, 30, 1985, was filed. on July the appeal was quashed due to the failure file a brief.
Following appellant’s petition appointment for of new counsel, present counsel, Vedder, Attorney appointed was on January Thereafter, 1987. counsel filed another petition PCHA requesting appellant’s appellate rights concerning his PCHA be restored. A hearing date was set May record is silent as further any concerning information petition. that PCHA event, court, In any on following November counsel, discussion with the Commonwealth and defense ordered the appellant appear for on sentencing January 25, 1988. After several delays, sentencing place took (now) March 1988 before President Judge Erb. sentencing hearing, At this counsel moved the con- agаinst C.A.1979, appellant, victions at 1009 dis- or, alternative, missed in the that the instant sentences be made to run with concurrently imposed by the sentences Cassimatis, that, at Judge Judge C.A.1979. Erb noted Judge Judge the time Cassimatis sentenced the appellant, he Cassimatis believed consec- utively imposed (and to the sentences which Judge Erb had vacated). Judge Erb, subsequently realizing Judge Cassi- matis’s run sentences could not the sen- consecutively impose, questioned tences he would soon his sen- whether *6 imposed to those some consecutively should run tences Judge earlier years by and one-half Cassimatis? seven case, Judge decided reviewing Erb After which he had impose he the same sentences that would begin sentences would vacated and that previously Judge Cassimatis. expiration imposed by run at the of those in the noted that do see how Judge Erb “[w]e of this Court detrimental sentencing Defendant] [was the re- but removed at sentencing prompt since the was been incarcer- quest of counsel and since the Defendant has in the case tried court other matters ated since was protected regard any appeal with since Defendant (Sentencing Transcript, he with which wishes to take ...” 1988, 8-9). 31, March p. in framing his terms argument
While not expressly
in
rights,
appellant,
of his constitutional
violations
trial,
his
effect,
1)
right
he was denied
claims:
provided
applica
as
the Sixth Amendment and made
under
Amendment,
Klopfer
through
to the states
Fourteenth
ble
Carolina,
988,
213, 87
L.Ed.2d 1
v. North
386 U.S.
S.Ct.
18
2)
(1967);
protection
he
denied
under
the Due
was
regard
Amendment
Process
of the Fourteenth
with
Clause
v.
387,
Lucey,
Evitts
469
105
appeal
right,
to his
as
U.S.
Illinois, 351
v.
830,
(1985),
83
821
U.S.
S.Ct.
L.Ed.2d
Griffin
See also Burkett v.
12,
585,
(1956).
76
Glover,
This
Supreme
first
our
Court
Pounds,
Commonwealth
490 Pa.
Now that we have determined that the appellant’s right to a trial is speedy implicated presently, we our begin analysis. determining whether defendant’s constitutional right
speedy
violated,
has
it
first
been
must
determined
the delay
trig-
whether
itself is sufficient
inquiry. Barker v.
ger
further
407
Wingo,
U.S.
92
v.
(1972);
33
Jonеs
Common
S.Ct.
L.Ed.2d 101
wealth,
(1981).
495
delay
Pa.
Instantly, sentencing hear- of the second appellant’s the date between is most certain- sentencing. his ultimate That ing and The extreme inquiry.2 to warrant further ly sufficient analysis, factor in our delay, of the which is thе first length in the favor. weighs heavily appellant’s of the is the cause The second factor be considered for the possible explanations record offers delay. The First, continued to numerous counsel appellant’s delay. Act, Hearing the Post erroneously under Conviction proceed petitions.3 such permitted continuously and the lower court present Second, similarities between the seemingly have those at 1060 C.A.1979 convictions and explanation of confusion, lengthy as our much caused *8 Since the would indicate. history of the case procedurаl delay entire throughout been incarcerated appellant has cases, length delays following respective were of sufficient 2. In the Pounds, years; supra, approximately two trigger inquiry: further months; months; Tillia, Glover, forty-nine supra, nineteen supra, Atkinson, years. supra, five and one-half eligible the PCHA. for relief under Obviously, appellant was not 3. eligible post-conviction is person Under Pa.C.S.A. § crime"; 2) "he is 1) only convicted if: "he has been relief of death or under a sentence incarcerated this Commonwealth imprisonment parole probation.” or or on petitions when the incarcerated While it true that the filed, was the conviction which on the he was not incarcerated were petitioner Clearly, Legislature intended the petitions. basis of his a PCHA attack when under incarcerated on the conviction to be action is initiated. on a similar substantially set of convictions, appears it all concerned mistakenly believed that the appellant had actually been sentenced on the convictions now before us. reveal, Even the record does nor does counsel propose, brought what events the delay to light in November in Glover, As supra, record does not indicate that either the appellant or the Commonwealth at- deliberately tempted to cause the delay. However, Atkinson, as in supra, the record demonstrates that the seven and one-half year delay was caused by the negligence of the appellant’s counsels in their erroneous pursuit of PCHA claims prior to sentencing. Since the delay was attributa- ble, at least in part, to the negligent stewardship appellant’s attorneys, the responsibility for the delay does not weigh heavily upon the Cоmmonwealth. Glover, 458 937-938; Atkinson, A.2d at 218; A.2d at Barker v. Wingo, supra.
The next factor for our consideration is whether
appellant made a
assertion
timely
of his right to a speedy
trial.
Instantly,
appellant made no attempt prior to the
actual sentencing to allege an infraction of his speedy trial
rights. Moreover, after his oral motion to dismiss the
charge was denied
sentencing proceeding,
appel-
lant did not file a written motion to reconsider sentence
which advanced the claim in detail. Clearly, the appellant
did not make a
assertion
timely
of his spеedy trial rights.
Atkinson,
See e.g.,
(motion
The final factor for consideration is whether the *9 in resulted any prejudice to the protected interests by the
137 Glover, supra, our Supreme In trial. right speedy to a stated: Court Amendment was interests that the Sixth
The particular protect following: prevent oрpres the to are designed con incarceration; anxiety to minimize and pre-trial sive accused; possibility to limit the that the cern of the and Ewell, v. U.S. impaired. will be U.S. defense S.Ct. L.Ed.2d 627 Atkinson,
Glover, 458 A.2d
218;
938;
at
528 A.2d at
Pounds,
Instantly,
impairment
incarceration or
of his
pre-trial
from oppressive
trial
after the
delay
since the
occurred
defense
he
claim is that
suffered
possible
conviction. His only
prison term.
anxiety
potential
he faced a
because
light
merit
in
are without
any claims
dolorous effect
years
appellant
that
waited seven and one-half
the fact
Glover,
See
at 938.
assert his
458 A.2d
right.
Moreover,
serving
eighth
is
appellant
currently
for the unrelated
thirty year
of a fifteen to
sentence
year
Thus,
at
C.A.1979.
rape
charged
burglary
anticipation
in
forego
opportunities
did
appellant
any
in
fact,
it
clear
the record
quite
future
sentencing.
Judge
Erb and
Cassima-
Judge
that
knew that
appellant
and 1060 C.A.
at 1009 C.A.1979
tis intended the sentences
note
We also
that
consecutively.
1979 to run
minimum sentence
did not exceed the collective
See
judice.
sub
cause
he
sentenced
to which
218; Pounds,
Atkinson, 528 A.2d
600-601;
417 A.2d at
Button,
Giovengo,
Commonwealth
348;
481 A.2d at
(1958),
U.S.
cert. denied 361
Pa.Super.
Having determined that the appellant’s
rights
trial
speedy
violated,
were not
turn
process
we
to the due
issue. The
Court
Supreme
of the United States has held that the Due
Process clause
protects
right to direct
when
appeal
that
right
guaranteed
Evitts,
is
state. See
e.g,
U.S.
at
105 S.Ct. at
at
L.Ed.2d
827.5 In Pennsylva
nia, sentencing
the gatekeeper
acts as
to the criminal appel
Thus,
late
a
in
process.
sentencing correspondingly
an
delays
appeal. Since the convicted criminal has an
Court,
as
appeal
right
Superior
of
to the
appeal
to this
is,
effect,
in
court
the final
in the
step
adjudication of an
Evitts,
individual’s criminal status.
Burkett
826
F.2d at
Cunningham,
sentencing
can
denied
process
While due
be
simultaneously
appellate process,
delays
which
delay
case,
an
in the
of a
even
inordinate
every delay
not
Burkett, 826
1221;
F.2d
one,
at
process.
violates due
Rheuark,
appellant
628
at 303. Not
must
only
F.2d
he must
delay,
his
but
prejudiced by
cause was
prove
causing
allowing
action in
or
that the state’s
prove
also
undesirable,
unfair,”
merely
“fundamentally
violation. United States
process
a due
in order
establish
Lovasco,
790,
2044, 2048-29,
v.
783,
97 S.Ct.
431 U.S.
(1977); Burkett,
Since both the ap federal has post-verdict delay, judiciary constrain v. Wingo Barker as a means of four factors plied process due has been violated. See determining whether Burkett, DeLancy, 1225; applied at at F.2d Rheuark, at 302-304. The 1247-1248; 628 F.2d F.2d at in the the test used difference between only significant process one in the due employed analysis Barker of the prejudice prong to the analysis relates Wingo Circuit, Third in their and Tenth test. Both recognized three inter prong, adaptations prejudice of the appeal: in promoting prompt ests pending appeal; incarceration (1) oppressive prevention of those convicted (2) anxiety and concern minimization of awaiting the outcome of (3) their appeals; limitation of the possibility that a person’s convicted grounds for appeal, and his or her defenses case of reversal and retrial, might impaired.
Burkett,
826 F.2d
quoting Rheuark,
Applying first, the test instantly, we recognize that the appellant has been incarcerated for seven and one-half years without having appellate rights exercised. How- ever, period that of imprisonment is unrelated to the instant rаther, charges; has been incarcerat- properly ed based on the sentences from the appellant’s unrelated rape and burglary convictions.
Second, to that the say appellant has suffered anxiety and concern awaiting while the outcome of appeal, an is absurd. appellant, The after the postponement of his resentencing occur, October never demanded sentencing and, not until in March of was a motion to dismiss The lodged. appellant, counsel, misadvised by con- to proceed tinued under the Post Hearing Conviction Act. PCHA, Even under the the appellant did not diligently *12 pursue his of appeal petition the denial of his filed in April of appeal and the was dismissed for failure to file a addition, brief. the appellant still has at least seven years Thus, of his other sentence to protracted serve. appeals period charges on the instant would be of little the consequence appellant’s plans. to future Third, and most the important, appellant’s grounds for in appeal and defenses case of a reversal and retrial are not impaired. complete Thе record is and the transcripts are ripe for Fair and of just appellant’s review. review the case hampered by not While cannot delay. say we with that his defenses in the certainty event a reversal and retrial impaired, appellant have not been has not offered Moreover, any possible impairment. reasons for even if he assertion, made such an the results of the in our delay, opinion, to have not arisen the level of “fundamental unfair- ness,” and, therefor, discharge is not warranted. test, we find that Barker v. Wingo the modified
Applying violated, rights have not bеen process due appellant’s passed and one-half have years that seven the fact despite displeasure our While we reiterate since his convictions. appel- certain that delay, we are an inordinate with such to sufficiently violated rights were process due lant’s appel- him. If the charges against dismissal warrant conviction, certainly most appeal his his lant were of his sentence prior expiration completed would be to raise If, on is able appeal, appellant 1060 C.A.1979. trial, result in a new ultimately issues which substantive extent, tо determine to what be better able that court would damaged by the defense has been appellant’s if any, of time. passage has not appellant determined that the that we have
Now process to a trial and due deprived been Constitution, must determine whether under the we law allegedly an imposing its discretion by lower court abused sentence was original after the appellant’s harsher sentence court, The asserts appellant vacated. consecutively sentences served ordering C.A.1979, imposed a effectively at 1060 imposed those years ago. and vacated imposed sentence than was harsher record that it is clear from the abundantly effect, harsher sentence. court, impose did not the trial it was the intention original sentencing, time of the At the sentences at 1009 to have the judges of the consecutively. Instantly, run and 1060 C.A.1979 C.A.1979 run present sentences decision have Judge Erb’s Judge merely imposed by to those Cassimatis consecutively Simply put, scheme. original sentencing to the gives effect imposed by the sentences first serve will serve the and then will Judge C.A.1979 Cassimatis than visa versa as Erb, Judge rather imposed by sentenсes intended. originally *13 assuming arguendo
Moreover,
the
sentence,
court did
sentencing
the
a harsher
has received
consecutively to all
its sentence to run
by imposing
not err
currently being
Instantly,
ap-
other sentences
served.
that the
court
his sen-
pellant requested
sentencing
vacate
it at a later date in order to
him
reimpose
tence and
allow
de novo
to file a
motion for reconsideration
opportunity
sentence.6
Pearce, North Carolina v.
U.S.
Instantly,
Pearce,
(1969)
In
dispositive.7
In order to assure the absence such we a more judge imposes concluded that whenever a have trial, a defendant after a new upon severe sentence Those doing affirmatively appear. reasons for so must modify Rule 1410 motion to sentence 6. In the case of a Pa.R.Crim.P. defendant, sentencing increase the sentence court cannot sponte. issue of sentence enhancement sua since it cannot raise the Broadie, Pa.Super. 402 n. A.2d v. Commonwealth (1985); Pa.Super. Murphy, 222 n. 5 Commonwealth However, presently this is not the case since the A.2d 514 request modify not enhanced because of the sentence was sentence. hearing Rather, sentencing de sentence was enhanced at a novo appellant's request upon to have his sentence occasioned vacated. Pearce, present Procedurally, supra, and the action are different. Pearce, imposed following the defen- supra, the harsher sentence Instantly, appellate rights. the harsh- his dant’s successful exercise of er sentence was following request his imposed the defendant’s to have reimposed to allow him to file a de in order sentence vacated and then proсedural dif- their novo motion to reconsider sentence. Pearce, supra, applicability of since the ferences do not vitiate Pearce, protect, preventing the fear of supra, interest which seeks may part court which deter on the of the vindictiveness collaterally exercising attack his or defendant from conviction, implicated presently.
143
information con-
upon objective
reasons must be based
of the defendant
part
conduct on the
identifiable
cerning
sentencing pro-
original
the time of the
occurring after
the increased
upon
And the factual data
which
ceeding.
record,
so
part
must
made
is based
be
sentence
increased sen-
of the
legitimacy
the constitutional
that
fully
appeal.
reviewed on
may
tence
2080-2081, 23
Pearce,
At Erb and sentences at C.A.1979 rape bcrglary intended consecutively to to each other and consecutively to run addition, In Judge Erb. imposed by Judge sentence original extensive criminal appellant’s made reference to the Erb far as the anticipated “there is no record and noted that —аs In- this Defendant.” concerned —rehabilitation of court is not motivat- sentencing find that the court was we stantly, sentence, appellant’s imposing ed “vindictiveness” when by the desire to effect rather the court was motivated but and Judge Judge which Erb sentencing arrangement The court’s rea- impose. intended to originally Cassimatis to those consecutively a sentence to run imposing sons for clear, persuaded are being served are we currently Broadie, See legal appropriate. such a sentence 221-222.8 A.2d at challenge a this could also be considerеd
Finally,
Assuming that
of his sentence.
discretionary aspects
of the
v. Tu
with Commonwealth
complies
brief
ladziecki,
(1987) and Pa.R.A.P.
“Imposition
proper
court,
exercise thereof
of the trial
whose
sound discretion
Broadie,
jeopardy
clause
United
supra, we held that the double
modify-
prohibit
from
court
States Constitution does not
punishment.
petitioner
increase his
ing
of a
so as to
the sentence
Anderson,
220-221;
Broadie,
see also Commonwealth
489 A.2d at
DiFrancesco,
(1982);
Pa.Super.
United Statеs v.
Judgment Affirmed.
KELLY, J., files a Concurring Statement. KELLY, Judge, concurring: I join Judge Popovich’s opinion. well-reasoned Appel- lant has attempted paint himself as a victim of court delay, racked uncertainty arising from the failure of impose court to sentence until seven and one half years after post-verdict motions were denied. His silence during however, that delay, proves the illusory tragic nature of the image paints. he Appellant had but to assert his speedy and sentence would have im- undoubtedly been posed.
Here, (like either appellant counsel) court and was ignorant the fact sentence had not imposed been no therefore suffered or anxiety, he knew sentence had been but elected to imposed stay silent, thus not to deciding from the case, borrow trouble future. In either he made no speedy assertion his trial right and established no actual prejudice arising from lengthy but understandable Hence, sentence. imposing trial claim must Glover, See Commonwealth v. fail. Pa. A.2d Likewise, I agree that slightest there is not the appear- ance of arising vindictiveness from imposition sentence consecutive to the one already serv- Rocco, Commonwealth v. ing. 375 Pa.Super. Cf. (1988)
A.2d 496 (discussing in sentencing vindictiveness generally).
Hence, I join the majority opinion.