DocketNumber: 1973
Judges: Spaeth, Cavanaugh, Brosky, Rowley, Wieand, McEwen, Sole, Beck, Tamilia, Cava-Naugh, Former
Filed Date: 1/31/1986
Status: Precedential
Modified Date: 10/19/2024
OPINION ANNOUNCING JUDGMENT OF THE COURT
This is an appeal from a judgment of sentence of ten to twenty years imprisonment imposed following revocation of a prior sentence of ten years probation for robbery. Appellant argues that the trial court improperly corrected a clerical error it had committed in recording the sentence of probation on the wrong bill of indictment. He also argues that his original sentences for aggravated assault and robbery,
Following entry of pleas of guilty, appellant was sentenced, on March 4, 1975, as follows:
Bill of Indictment 1792 Feb. 1974: aggravated assault: 11½ to 23 months imprisonment, credit for time served since January 15, 1974;
Bill of Indictment 1793 Feb. 1974: robbery: 5 years probation to run concurrently with Bill # 1792.
On February 17, 1978, following a revocation of probation hearing, the trial court made an order revoking appellant’s sentence of five years probation for robbery and imposing a sentence of ten years probation. The order, however, was not recorded on Bill 1793, the robbery bill, but instead was contained on a form signed by the trial court entitled “Supplement to Indictment No. 74 Feb. 1792,” which was the aggravated assault bill. Appellant’s sentence on Bill 1792, however, had expired at least a year earlier. Also on February 17, 1978, however, a second document entitled “Certification of Probation” was executed stating that the probation imposed on Bill 1793 (the robbery bill) was revoked and a new ten year sentence of probation was imposed. Thus, there were two conflicting records of the trial court’s order. No one questioned the Order, and appellant was again released on probation.
On June 10, 1982, appellant appeared before the trial court at a second probation violation hearing. This time the trial court entered an order revoking the ten year probation. At the same time, the court imposed a sentence of ten to twenty years in prison. This order and sentence were recorded on a form signed by the trial court entitled “Supplement to Indictment No. 74 Feb. 1793”, the Robbery bill. It is this order from which appellant has appealed.
Appellant argues that the trial court had no power, to revoke his probation in 1982 and sentence him to prison; His first argument is based solely upon an examination of the bills of indictment as they appear in the record, and may be stated as follows:
The trial court rejected appellant’s argument. The court found that the entry of the order of February 17, 1978, on Bill 1792 was a clerical error. The court identified several factors in support of this finding. First, the court noted that it could not have meant to revoke probation on Bill 1792 because appellant had completed his sentence on that bill; hence it could only have meant to revoke probation on Bill 1793. Second, the court stated that the court stenographer had correctly reported the sentence.
I.
a.
There are indeed cases permitting correction of a clerical error regarding a sentence. Commonwealth v. Liscinsky, 195 Pa.Super. 183, 171 A.2d 560 (1961); Commonwealth v. Meyer, 169 Pa.Super. 40, 82 A.2d 298 (1951). However, this Court has held that where a discrepancy exists between the sentence as recorded on the bill of indictment and the sentence as pronounced orally by the court, the sentence as recorded controls. See, e.g., Commonwealth ex rel. Middleton v. Banmiller, 195 Pa.Super. 45, 169 A.2d 343 (1961). In Commonwealth v. Allen, 443 Pa. 96, 277 A.2d 803 (1971) and Commonwealth v. Thomas, 219 Pa.Super. 22, 280 A.2d 651 (1971), the Pennsylvania Supreme Court and this Court applied this principle in cases similar to the present case.
In both Allen and Thomas, the sentencing court erroneously transposed two sentences on the bills of indictments. However, the Supreme Court in Allen and the Superior Court in Thomas, following Allen, refused to allow the trial courts, more than a year after the original sentence was imposed, to correct the errors. The decisions in these two cases rested, in part, on an interpretation of the United States Supreme Court’s decision in Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873) that once a defendant had commenced serving the sentence, the trial court could not increase the sentence without violating the Double Jeopardy Clause.
In United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), the United States Supreme Court rejected such a broad interpretation of the Double Jeopardy Clause.' In DiFrancesco, the Court held that a statute that permitted the government, after the defendant had been sentenced as a “dangerous special offender”, to
Although our Supreme Court has not had an occasion to re-evaluate its decision in Allen in light of DiFrancesco, this Court in Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983), has accepted a less expansive interpretation of the Double Jeopardy Clause. In Ford, the defendant was convicted and sentenced on charges of, inter alia, attempted murder, criminal conspiracy, and possession of an instrument of crime. The defendant also was convicted of aggravated assault and recklessly endangering another person, but he was not sentenced on those offenses because the trial court found that they merged with the offense of attempted murder. On appeal, this Court held that in sentencing the defendant for attempted murder, criminal conspiracy, and possession of an instrument of crime, the trial court had violated 18 Pa.C.S. § 906, because it had sentenced appellant to three inchoate offenses arising out of the commission of one ultimate crime. On remand, the trial court was instructed to sentence the defendant only on one of the three offenses. The Court also instructed the trial court that, if it chose not to sentence the defendant for attempted murder, it could resentence him for aggravated assault and recklessly endangering another person, even though it originally had not imposed sentences on those two offenses. Id., 315 Pa.Superior Ct. at 300, 461 A.2d at 1290. The Court reasoned that as long as the new aggregate sentence was not longer than the original sentence, the Double Jeopardy Clause would not be violated and the trial court would merely be substituting new sentences for the
Even prior to DiFrancesco, this Court had interpreted the Double Jeopardy Clause as we did in Ford. In Commonwealth v. Baily, 250 Pa.Super. 402, 378 A.2d 998 (1977), the trial court found the defendant guilty of two counts of theft by unlawful disposition and two counts of theft by receiving stolen property. It sentenced the defendant only on the former two counts, however, because it concluded that the offenses merged. On appeal, this Court held that there was no merger. It was also determined that the evidence was insufficient to support the convictions for unlawful disposition, but sufficient for receiving stolen property, and remanded for resentencing on the latter offense. The Court reasoned that by permitting the trial court to correct its previous mistake of law regarding merger, it would not increase the punishment but merely modify the sentence so as to base it on a valid conviction, and that as long as the aggregate sentence did not exceed that initially imposed, there was no violation of the Double Jeopardy Clause.
Because the interpretation of Lange upon which Allen and Thomas rely has been rejected by the United States. Supreme Court in DiFrancesco, we rely on Ford and Baily rather than Allen and Thomas. The same may be said here as was said of the appellant in Baily: he would receive an undeserved windfall if the court could not correct its sentence. It would be undeserved because it would be based on a clerical error — the trial court’s mistake in recording its order of February 17, 1978, on the aggravated assault bill of indictment instead of the robbery bill — the correction of which entailed no increase in aggregate sentence. Because no increase resulted from the court’s correction in the case before us — the correction only stating that appellant’s sentence of ten years probation was not, as recorded, for aggravated assault but for robbery — the trial court had the power under Ford and Baily to correct its clerical error without violating the Double Jeopardy Clause and record
b.
Approximately two months prior to oral argument in this case, the Pennsylvania Supreme Court filed its decision in Commonwealth v. Goldhammer, 507 Pa. 236, 489 A.2d 1307 (1985). There the Court held that, following the vacation of several of defendant’s convictions, his case could not be remanded for resentencing on related charges of which he had been convicted but had received only suspended sentences. It was held that the imposition of new sentences on the related charges would violate the Double Jeopardy Clause. Appellant also argues, on the authority of Goldhammer, that the trial court’s imposition of the sentence of imprisonment on June 10, 1982, likewise violates the Double Jeopardy Clause. However, on November 12, 1985, the United States Supreme Court, in a per curiam opinion, summarily reversed the decision in Goldhammer and remanded the case to the Pennsylvania Supreme Court for further consideration in light of United States v. DiFrancesco. Pennsylvania v. Goldhammer, — U.S. —, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985).
However, even if the Pennsylvania Supreme Court reaffirms its prior decision in Goldhammer, on the basis of state law, Goldhammer is distinguishable from the instant case. In Goldhammer, the defendant was convicted on 56 counts each of theft by unlawful taking and forgery. He was sentenced to a two to five year prison term for one theft count and a five year period of probation on one forgery count. Sentence was suspended on all other counts. On appeal, the Superior Court vacated 34 of the 56 theft convictions because they were barred by the statute of limitations. Included among the convictions vacated was the one and only count on which defendant had been sentenced to prison. The Commonwealth sought to remand the case for resentencing on the remaining 22 convictions. The
In the instant case, appellant’s original sentence of five years probation was increased to ten years probation which was increased to five to ten years imprisonment following violations of sentences of probation. Thus, the case before us does not involve resentencing on charges for which a suspended sentence was imposed, as in Goldhammer, but resentencing following violation of probation. As noted in Goldhammer, Id., 507 Pa. at 248, n. 5, 489 A.2d at 1313, n. 5, a sentence of probation may be followed by a subsequent prison sentence if the terms of the probation are violated. Appellant initially received a probationary sentence for robbery. When his probation was violated before it was satisfactorily completed, the court resentenced him to a lengthier period of probation. This period of probation in turn was violated, and the court sentenced appellant to ten to twenty years imprisonment. This the court had authority to do. Commonwealth v. Pierce, 497 Pa. 437, 441 A.2d 1218 (1982); Commonwealth v. Vivian, 426 Pa. 192, 231 A.2d 301 (1967); 42 Pa.C.S. § 9771(b).
II.
Appellant’s final argument is that the sentence imposed following the June 10, 1982 revocation of probation hearing was invalid because his original sentences for aggravated assault and robbery, imposed in 1975, were illegal. Specifically, he argues that the charges of aggravated assault and robbery arose out of one criminal act, and that they therefore merged for sentencing purposes and only one sentence should have been imposed.
In Commonwealth v. Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985), an en banc panel of this Court reconsidered the common law doctrine of merger. The court stated that to determine whether merger has occurred the court must first determine whether the separate statutory offenses arose out of the same criminal act, transaction or episode. If not, there is no merger. But even if the criminal conduct consisted of only a single physical act, the separate statutory offenses do not merge if the Commonwealth has substantially different interests at stake and each is injured by the defendant’s single act. Therefore, if the court determines that only one criminal act occurred which gives rise to the multiple statutory offenses, the court must then decide whether the statutes defining the crimes charged were directed to substantially the same harm. The latter part of the merger test requires an inquiry into the legislative intent in enacting the different statutory crimes as well as a consideration of the essential elements of the crimes.
In the case before us, the certified record is meager. Nevertheless, from the facts recited in the Complaint and the factual averments contained in the Bills of Indictment, we have determined that the crimes of aggravated assault and robbery merged. The Complaint recites that appellant took part in a robbery at a bar in which the bartender, Eugene Anderson, was shot. The third count of the robbery indictment recites that “in the course of committing a theft, [appellant] feloniously did commit or threaten to
It is also clear from the statutory language and the necessary elements of the aggravated assault and robbery offenses that the harm against which the legislature intended to protect by enacting the aggravated assault statute is part of the same harm against which the robbery statute is intended to protect: the infliction of bodily injury. See 18 Pa.C.S. §§ 2702(a)(1) and 3701(a)(1)(i)-(v). Although the elements of the crime of robbery and aggravated assault are not identical, those for the crime of robbery suggest that the purpose of the robbery statute is not only to protect private property interests, but also to protect against the infliction of bodily injury when one’s property interest is being jeopardized. Because the only harm against which the crime of aggravated assault protects is actual or threatened physical bodily injury, and because this is one of the harms against which the robbery statute protects, the aggravated assault statute protects against the same harm as the robbery statute. Appellant’s commission of both an aggravated assault and a robbery caused only one harm to the Commonwealth in this case and
When two crimes merge for sentencing purposes, the crime to which the legislature has attached the lesser possible maximum penalty merges into the crime to which the legislature has attached the greater possible maximum penalty. Commonwealth v. Kozrad, 346 Pa.Superior Ct. 470, 499 A.2d 1096 (1985); Commonwealth v. Sayko, 333 Pa.Super. 265, 482 A.2d 559 (1984); Commonwealth v. Boerner, 281 Pa.Super. 505, 422 A.2d 583 (1980). Therefore, although we agree with appellant that his crimes merged, we disagree with his conclusion that the crime of robbery merged into the crime of aggravated assault. Because a greater sentence could have been imposed for the robbery conviction than for the aggravated assault conviction, the aggravated assault crime merged into the robbery. Thus, only the aggravated assault sentence was illegal. The sentence for robbery, the one appealed from, is legal and will be affirmed.
Even though the sentence for aggravated assault expired approximately nine years ago, the illegality of the sentence is not moot. In Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d 465 (1971), the Pennsylvania Supreme Court held that when a criminal sentence has been fully satisfied, a collateral attack upon the underlying conviction is not moot and can be considered if it is shown that the criminal sentence may directly affect any subsequent criminal prosecution or conviction. In Commonwealth v. Doria, 468 Pa. 534, 364 A.2d 322 (1976), this rule was expanded to apply even if one could not show any criminal consequences but could show actual civil consequences. In Commonwealth v. Rohde, 485 Pa. 404, 402 A.2d 1025 (1979), the Supreme Court again expanded the rule to include those cases in which the appellant could show only the possibility of civil consequences. In each of these cases, the issue which was held not to be moot was the validity of the conviction.
This issue which we did not address in Kelly is now squarely before us. There can be no doubt that the legality of appellant’s sentence which has already expired has direct criminal consequences. Appellant may be entitled to credit for the time served on his illegal sentence. Therefore, following the rationale of Sheehan, Doria, Rohde, and Kelly, even though the sentence which was illegal has been fully served, the issue of the legality of the sentence is not moot in this case.
Although the prison sentence for aggravated assault which appellant has fully served was illegal, the longer sentence for appellant’s robbery conviction stemming from the same criminal act giving rise to the aggravated assault conviction was legal and has not yet been fully served. Because the two sentences — one for aggravated assault and one for robbery — were imposed for the same criminal act, only one of them, the robbery sentence, can legally be imposed. Because appellant has been required to serve an illegal sentence for the one act which gave rise to both the aggravated assault and robbery convictions, and because the legal sentence for the one criminal act has not yet expired, appellant should receive credit on the legal sentence for the time served on the illegal sentence.
We hold that the constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully ‘credited’ in imposing sentence upon a new conviction for the same offense. If, upon a new trial, the defendant is acquitted, there is no way the years he spent in prison can be returned to him. But if he is reconvicted, those years can and must be returned — by subtracting them from whatever new sentence is imposed.
Although the instant case does not involve a subsequent conviction for the same offense as in Pearce, it does involve the same question of double punishment for a single crime. Just as in Pearce, the years of imprisonment appellant was required to serve under the illegal aggravated assault sentence cannot be given back to him. But because he still must serve a term of imprisonment under the lawful sentence resulting from the same criminal act, those years can and must be given back to him as credit for time served.
We find additional support for this conclusion in Commonwealth v. Sayko, 333 Pa.Super. 265, 482 A.2d 559 (1984). In Sayko, appellant pled guilty to indecent assault, indecent exposure, and corruption of minors. He was sentenced to consecutive sentences of one to two years for indecent assault, one to two years for indecent exposure, and five years probation for corruption of minors. Three and one half years after being sentenced (i.e.) after 1¾ of his two prison sentences were satisfied, appellant questioned the legality of his sentences based on the merger doctrine. The Court agreed that either indecent assault or indecent exposure merged with corruption of minors and therefore remanded for resentencing on all counts. The Court also stated that appellant was to be given credit for time served.
Sayko is not directly on point with the case before us because in Sayko, the merger did not apply to all the crimes charged but only to two of the three and because not all of
Judgment of sentence for robbery affirmed.
. Although the aggravated assault bill contained four counts, it appears that the plea was entered to count one, 18 Pa.C.S. § 2702(a)(1), a felony of the second degree. The robbery bill contains three counts based on 18 Pa.C.S. § 3701(a)(1)(i), (ii), and (iii). Although the record is not clear which count the plea was entered to, it appears, from the meager facts available to us, that the first count, 18 Pa.C.S. § 3701(a)(1)(i) is not appropriate. However, since each count charges a felony of the first degree, the uncertainty in this regard does not affect our decision.
. We note, however, that we have never received a transcript of the February 17, 1978 hearing, and there is no indication in the record that such a transcript exists. Appellant asserts in his brief that he attempted to get a copy of the transcript but was informed that it could not be found. Brief for Appellant, at 12.
. Appellant does not assert that the separate sentences violate the Double Jeopardy Clause of the Pennsylvania or United States Constitution.