*1 Pennsylvania COMMONWEALTH YOUNG, Joseph Appellant.
Superior Pennsylvania. Court
Submitted July Decided *2 Defender, Packel, Benjamin Assistant Public and John W. Defender, Lerner, for Philadelphia, appellant. Public Glass, Dis- and Deborah E. Assistant H. Goldblatt Steven District Attor- Fitzpatrick, trict and F. Emmett Attorneys, Com., appellee. ney, Philadelphia, JACOBS, WATKINS, Judge, Before President CERCONE, PRICE, VAN der VOORT and HOFFMAN, SPAETH, JJ.
PRICE, Judge: 26, 1976,
On April appellant was convicted of three counts assault,1 one count of aggravated a firearm on a carrying public street2 and one count of possessing an instrument filed, crime.3 No post-trial motions were and on July 1976, appellant was sentenced as follows: to twelve Six years imprisonment on the aggravated assault conviction at No. 75 March six to fifteen years imprisonment on the two other aggravated assault convictions at Nos. 76 Term, 77 March and two to five years imprison- ment on each weapons of the two offenses at Nos. and 79 1976. In this appeal (1) it is contended that the sentences on the aggravated assault convictions are illegal, (2) was not advised of his under rights (3) Pa.R.Crim.P. trial counsel was ineffective for failing post-verdict motions and failing *3 object to to the illegal sentences.4 We first find appellant’s two claims to be meritorious and do not reach the third. assault
Aggravated
is an offense which constitutes
under the indictments herein a
of the
felony
degree.
second
18
2702(b).
Pa.C.S.
The maximum term of imprisonment
§
which may be
on a
imposed
degree
second
felony conviction
is ten
18
years,
1103(2), and the
Pa.C.S.
minimum term
§
cannot
maximum,
1057,5
exceed half the
19
P.S.
or
this
§
years.
case five
Claims based on sentences which are unlaw
ful per se are not
to waiver.
subject
Commonwealth v.
Walker,
323,
(1976);
468 Pa.
2. 18 Pa.C.S. §
3. 18 Pa.C.S. § 4. The Commonwealth has not favored us with a brief. 19, 1911, 1055, (19 1057) 5. Act of June P.L. 6 P.S. as § § amended.
395 of the trial relief on the basis seeks also Appellant rights. post-conviction of his him failure to apprise court’s states: 1123(c) Pa.R.Crim.P. shall advise judge of the trial guilt, the finding
Upon file (1) right his to the record: of defendant on of the assistance of his to motions and any on of appeal of motions and filing such counsel in the therein; he must of the time within which (2) issues raised (a); (3) only that in paragraph do so as set forth on raised may be in such motions grounds contained appeal. follow- to imparted of information was
None to court’s total failure herein. The lower ing the verdict a that 1123(c) precludes finding appel- voluntary motions was to file post-trial lant’s failure v. Car- Commonwealth requires. as the law understanding, v. Commonwealth ter, 310, (1975); 846 344 A.2d 463 Pa. thus Schroth, (1974). Appellant 168 233, 328 A.2d 458 Pa. tunc. Com- motions nunc entitled to file post-verdict 446, (1978); Pa. Cathey, monwealth v. 477 Babb, A.2d 933 Pa.Super. v. 371 Commonwealth Miller, 335 A.2d (1977); Commonwealth Pa.Super. (1975). included in this appeal, other lower court proceeding The to a guilty plea is appellant’s No. 1150 May as to this convic- No claims are asserted charge escape.6 The judgment tion or the sentence thereon. imposed is, therefore, af- May sentence at No. 1150 *4 firmed. remanded the case is March
As to Nos. 75/79 appellant’s with Pa.R.Crim.P. 1123. Should compliance denied, he must be resentenced on motions post-trial be this 77 in accordance with 76 and convictions at Nos. opinion. J., the result.
CERCONE, concurs in § 18 Pa.C.S. HOFFMAN, J., files a concurring dissenting opinion VOORT, J., in which joins. VAN der WATKINS, former President Judge, participate did not the consideration or decision of this case.
HOFFMAN, Judge, concurring and dissenting: I agree with the Majority that the sentences on appel- lant’s assault aggravated convictions are patently illegal and However, be allowed to cannot stand. I do not agree that the trial court’s failure to with comply Pa.R.Crim.P. 1123(c); Appendix, P.S. automatically entitles appellant post-verdict motions nunc pro Instead, tunc. I believe that we should remand the (Nos. 75/79, instant case 1976) for an on evidentiary hearing whether know- ingly and voluntarily waived his to file post-verdict motions.
Our Court has decided two cases recently which compel us to remand the instant case for an evidentiary hearing rather than the filing of motions nunc tunc. See Rinier, Commonwealth v. 255 Pa.Super.
(1978); Commonwealth v. Pompey, 254 Pa.Super. A.2d 103 (1978). Pompey, in particular, identical to the case at bar: both Young our appellant failed to file any post-verdict motions. Because the lower court in Pompey failed to with Rule 1123(c), we remanded to allow determine, lower court to after an evidentiary hearing, whether appellant knowingly and voluntarily waived his right to file post-verdict motions. Rinier presented slightly Rinier, different facts. In the defendant filed initially post- motions, verdict but later withdrew them appealing. before However, Rinier did articulate a principle which, submit, I explains the result in Rinier and Pompey governs the instant case. When the record does not rule out the possibil- ity that trial counsel’s advice may have served as an effec- tive substitute lower for the court’s failure to comply 1123(c), we should remand for an evidentiary hearing to determine trial whether counsel in fact gave advice and whether his client made a knowing and intelligent
397 Here, as in rights.1 motions post-verdict of his waiver motion post-verdict tell what Pompey, Rinier and we cannot Accordingly, we advice, gave appellant.2 any, if counsel to determine hearing evidentiary remand for an must waived his voluntarily and knowingly whether appellant Tate, v. motions. Commonwealth post-verdict Schroth, v. v. Commonwealth supra; Commonwealth supra; v. Rinier, Pompey, supra.3 Commonwealth supra; J., concurring and dissent- VOORT, joins in this VAN der ing opinion. effectively advised that counsel could not have
1. If the record reveals
rights
proce
post-verdict
panoply
motion
and
the
of
his client of
dures,
remedy
appropriate
for
failure to
a trial court’s
then the
filing
post-verdict
1123(c)
comply
to
for
of
Rule
is
remand
the
Rinier, supra.
pro
v.
For
motions nunc
example,
tunc. See Commonwealth
1123(c)
the
fails to observe Rule
and
when
trial court
motions,
only boilerplate post-verdict
for
we remand
the
files
counsel
pro
filing
post-verdict
it is manifest
of
tunc because
motions nunc
operation
not
of Rule 1123
that
that counsel did
understand the
for the
his
have
as an effective substitute
advice could not
served
1123(c).
non-compliance
See Commonwealth v.
court’s
with Rule
28, 1978);
Cathey,
446,
(Filed
Commonwealth
Feb.
477 Pa.