*1 92 the ac- a crime committed and facie that has been
prima
it.’
and citation
[Emphasis
cused
the one who committed
prob-
establish ‘sufficient
..
. the
must
prosecution
omitted]
offense.”
able cause’
the accused has committed the
Prado,
Pa. 485 at
v.
481
JACOBS, Judge, participate former President not case. or decision of this the consideration 421 1163 A.2d Pennsylvania, COMMONWEALTH Hodges, Appellant. RUSH, a/k/a Janet Linda Johnetta Pennsylvania. Superior Court 6, 1979. Dec. Submitted 22, 1980. Aug. Filed *2 Defender, Norristown, J. Arthur Assistant Public King, for appellant. Williamson, T.
Ronald Assistant District Norris- Attorney, town, Commonwealth, for appellee. BROSKY, ROBERTS,
Before JJ.* WICKERSHAM PER CURIAM: 1979, Rush,
On appellant, March Johnetta was sen- imprisonment tenced to term of two to and one-half five years of a following probation previously the revocation * Supreme Pennsylvania, Justice Samuel J. Roberts Court of sitting by designation. Term, Thereafter at No. 5437 October 1975.1
granted lower court petitioned the April to Pa.R.Crim.P. pursuant modification that sentence 9, 1979 as 14102; however, was dismissed on same filed. untimely been having (1) following raises issues:
On appeal, appellant the motion dismissing whether the lower court erred sentence since it had failed instruct same requirement filing the time of of the was imposed the sentence (2) within ten whether days; by of the mandated sufficiently guidelines reflective code; the sentence (3) imposed whether excessive. error, contention of we with first agree appellant’s
Since others. us to consider unnecessary it becomes at the in relevant provides, part, Pa.R.Crim.P. 1405 *3 the (c) “. . . advise judge time of the shall: sentencing the to file motions (2) right on record: ... of defendant the resentencing as preceding are 1. said revocation and The events 1976, guilty April 7, plea appellant of at No. entered a follows: On 5437 October and, Term, charges in to of retail theft 1975 three bargain arrangement, to a plea was sentenced with a accordance year imprisonment and five 6 to 23 months on one count a term of of 26, 1976, paroled. probationary period she was on another. On months, appellant on a new retail theft five was rearrested Within entry guilty plea Following charge January on No. 1976. the at 4411 of 25, 1977, appellant to 5 to 23 months court sentenced the imprisonment and, additionally, the her in of both found violation parole charges. probation granted The court on the earlier and sentence, yet original of her directed recommence service in-patient parole eligible both to an her on sentences determined drug facility. March, 1977, paroled to In was admission However, July facility program. in from the such a she absconded Philadelphia for in several times thereafter 1977 and arrested 29, theft, January recently on 1979. retail most 6, followed, February respectively hearings Gagnon I and II latter, 23, appellant to At the found March 1979. the court 1979and parole both her be in probation basis, at No. 4411 of 1977 and violation of her and, Term, parole on that No. 1975 5437 October probation. imposed in lieu of the the aforementioned sentence paroles were not revoked. provides: be 2. motion to sentence shall 1410 “A Pa.R.Crim.P. (10) writing in court within ten be filed with the shall days imposition after of sentence.”
95 .;. (3) the of the sentence . of the ten challenging propriety ” filed; time limit within which such motion must be . . . day “(t)he said rule following comment indicates (c) advice mandated under in to the paragraph part refers procedure under . . . Rule 1410.” fails
Though
reported
our research
to reveal a
case on a
trial
judge’s obligation to advise
right
defendant
his
to
petition for modification of
ten days,
sentence within
our
Supreme Gourt has
discussed the
advise
previously
duty to
of other rights
set forth in
similarly
(c)
subsection
Wilson,
v.
Commonwealth
1,
rule. See
430 Pa.
In one, silent, cases as the record the burden is to placed upon Commonwealth show that the defendant waived or abandoned a mandated See right. ex Commonwealth rel. Mullins v. 428 Pa. Maroney, 236 781 (1968); Commonwealth ex rel. Robinson Myers, A.2d 427 Pa. course, A.2d 220 (1967). Of the court must first conclude that the defendant was actually aware of such right. can, however,
We no benefit be perceive gained to from remanding matter enable the court receive evidence for the purpose determining whether appellant was, fact, but, right nonetheless, aware of such chose to waive same.
While the judge’s opinion acknowledges the oversight failing advise her fully rights, it that even the suggests petition were have been filed, However, have timely same would been denied. since the order the for dismissing request modification merely untimeliness,3 cites the the petition’s record does not fully NOW, by 3. The order the “AND issued court read as follows: review, appearing petitioner complied on it that not with has reconsideration, petition having Pa.R.Cr.Proc. the been filed case will be an inference. support Accordingly, such to entertain remanded with instructions for the lower court of sentence nunc appellant’s pro for modification petition tunc. mindful, course, may are that the lower court well
We event, the merits. In such choose to deny request counsel, an appeal this court will motion of permit, upon raised, decided, herein. those issues but not upon remaining is we believe Notwithstanding possibility, entitled to the court’s consideration of such since to same was denied as petition right previously her its result of the court’s failure to advise her of properly availability. lower court to
Case remanded with directions to the entertain motion for modification of sentence appellant’s nunc pro tunc.
WICKERSHAM, J., files dissenting opinion. WICKERSHAM, Judge, dissenting: I dissent from the decision in this case to remand majority with appellant’s direction to the lower court to entertain motion for nunc tunc. pro modification of sentence
Rule 1410 of a defendant to file a requires Pa.R.Crim.P. writing (10) days motion to sentence in within ten after should imposition sentencing judge of sentence. call this rule to the attention of the defendant at the same time of was not done in case sentencing.1 Such dismissed defendant’s Judge petition Tredinnick it was filed more than ten modification of sentence because (10) days after sentence. however, which the of this point, majority panel
overlooked, gave fact that Tredinnick in fact Judge full for modification of petition consideration to defendant’s sentencing, days BY THE
more than after is dismissed. COURT ten Tredinnick, /s/. J.” 1405(c)(3). 1. Pa.R.Crim.P.
sentence, merits, disposed it on its and discussed it fully his Opinion June 1979.2
The remand under these circumstances pure folly; waste of judicial manpower one the reasons we have almost 5000 After remand, unresolved cases. appeal necessarily will come back the unresolved issues and take the time of the other appellate judges court once again.
Argued Dec. 1979. Sept. 5,
Filed 1980. given by Judge considering 2. reason Tredinnick the motion of merits, late, although defendant on its filed avoid a future alleged P.C.H.A. issue of ineffectiveness counsel.