Commonwealth v. Horst , 332 Pa. Super. 401 ( 1984 )

POPOVICH, Judge:

This is an appeal by the appellant, Charles R. Horst, Sr., from the aggregate sentence of two to ten years entered on July 6, 1982, following a negotiated plea of guilty to theft by deception, issuance of a bad check, attempted homicide, unlawful restraint and criminal conspiracy. We reverse.

Appellant’s sole contention on appeal concerns the lower court’s “out of hand” denial of his motion to modify sentence for failing to set forth therein “reasons” warranting reconsideration.

A review of the record indicates that the appellant filed a written motion on July 16, 1982, the last day under Pa.R. Crim.P. 1410. “Because he was transferred to the State Correctional Institution at Camp Hill just two days after sentencing [the appellant] claimfed] he was unable to tell his legal counsel what reasons to insert in his motion. Thus, he asked[,] in effect, for leave to file reasons late. [The lower court] refused his motion .... ” (Lower Court Opinion at 2-3) The lower court did so because it perceived no provision in the law or in any rule which permitted the granting of an extension to the appellant beyond the 10-day period fixed in Rule 1410.

We believe that the lower court gives an overly strained reading to a Rule which merely requires that, in effectuating its purpose of affording the court below the first opportunity to modify a sentence, a motion be filed within 10 days after sentence. This is exactly what occurred here.

We fail to perceive how appellant’s request for an “extension” in his motion, without the presentation of any reasons therein justifying a modification of the sentence, somehow did violence to, or perverted the objective sought by, the Rule. In other words, we find that the lower court could have very easily set a period within which the motion to modify could have been ruled upon and still have avoided any jurisdictional time constraints. See Pa.R.App.P. 1701. Such action would have comported with the intent of the Rules of Criminal Procedure to achieve “simplicity in procedure” and “fairness in administration” of justice, without any undue delay. See Pa.R.Crim.P. 2; 1 Pa.C.S.A. § 1921(c)(6).

The cases are too numerous to cite in which the Commonwealth’s petitions for an extension under Pa.R.Crim.P. 1100 have been filed on the 180th day, with a hearing on said petition held days or even weeks after the run-date. Yet, there has never been a requirement engrafted upon Rule 1100 precluding a review of such timely petitions absent a showing of prejudice on the part of the accused. See, e.g., Commonwealth v. Walls, 303 Pa.Super. 284, 449 A.2d 690 (1982); Commonwealth v. Fairley, 298 Pa.Super. 236, 444 A.2d 748 (1982) (POPOVICH, J.).

Should we do any less when we speak in terms of a defendant’s petition, which in the case at bar happens to be a timely filed motion to modify sentence? We think not, for to do so would be a reversion to a practice long since done away with, i.e., placing form over substance. Further, to adhere to the position espoused by the lower court would be to disregard the clear letter of Rule 1410 under the pretext of pursuing its spirit. See 1 Pa.C.S.A. § 1921(b).

We cannot approve of a ruling that borders on the picayune, especially when neither law nor logic supports such a result. Since we believe that the appellant’s motion to modify should have been granted, with appropriate time constraints on a ruling thereon set by the sentencing court, we reverse the actions of the court below and remand to allow the appellant the opportunity to supplement his timely filed motion. If the motion is thereafter denied, the judgment of sentence initially entered by the sentencing court may be reinstated and the appellate process can be utilized by the accused to seek review of the lower court’s actions.

Accordingly, we reverse and remand for proceedings consistent with this Opinion. Jurisdiction is relinquished.

ROBERTS, J., files a dissenting opinion.