Com. v. Blair

• Decision Date: 30 July 1997
• Citation: 699 A.2d 738
• Parties: COMMONWEALTH of Pennsylvania v. Marshall BLAIR, Appellant.
• Court: Pennsylvania Superior Court

Page 738

699 A.2d 738

COMMONWEALTH of Pennsylvania v. Marshall BLAIR, Appellant.

Superior Court of Pennsylvania.

Argued June 10, 1997.

Filed July 30, 1997.

Charles J. Porter, Pittsburgh, for appellant.

Sally K. Kaye, Assistant District Attorney, Pittsburgh, for Commonwealth., appellee.

Before CIRILLO, President Judge Emeritus, and JOHNSON and FORD ELLIOTT, JJ.

CIRILLO, President Judge Emeritus:

Marshall Blair appeals from an order entered in the Court of Common Pleas of Allegheny County denying his motion to dismiss charges and vacate sentence. We affirm.

Blair was involved in a fight that took place in the Oakland section of Pittsburgh outside of a local college bar. As a result, Blair was tried by a jury and convicted of aggravated assault and simple assault. On February 24, 1993, Blair appeared for sentencing before the Honorable Joan Orie Melvin and was sentenced to twenty-four months to sixty months imprisonment, followed by a ten-year probationary term. ¹ On March 1, 1993, Blair filed a motion to reduce his appeal bond, which Judge Melvin had set at $50,000.00. This request was denied. The next day, March 2, 1993, bond was posted on Blair's behalf.

While free on bond, Blair filed a notice of appeal on March 19, 1993. In an unpublished memorandum opinion, this court affirmed Blair's judgment of sentence. See Commonwealth v. Blair, No. 460 Pittsburgh 1993, 435 Pa.Super. 641, 645 A.2d 885 (memorandum decision filed April 18, 1994). On May 31, 1994, the Superior Court remanded the record in this matter to the Court of Common Pleas of Allegheny County; its receipt was acknowledged on June 7, 1994. At this time, the trial court was under the impression that Blair had already begun to serve his prison sentence. According to the trial court, it was unaware that Blair remained free on bond because his bond papers, which would have alerted the court to the fact that Blair was at liberty and not incarcerated, were missing from the record.

Over two years later, in September of 1996, the Pennsylvania Department of Corrections contacted the trial court to inquire into the status of Blair's direct appeal. Upon investigation, the trial court determined that Blair was not incarcerated. A hearing was held on October 11, 1996, at which time Blair was ordered to begin serving his sentence pursuant to Pa.R.A.P. 1763 (vacation of supersedeas on affirmance of conviction). Additionally, the trial court orally denied a motion filed by Blair to dismiss or, alternatively, vacate his judgment of sentence. Blair then filed a motion to reconsider. On October 22, 1996, the trial court cited a lack of jurisdiction in the matter, and ordered that no action be taken on Blair's motion to dismiss or to vacate sentence. This appeal followed. Blair raises one issue for our consideration:

Whether the appellant is entitled to credit for time erroneously at liberty based on the trial court's failure to comply with the requirements of Pa.R.A.P. 1763?

Initially, we note that Pennsylvania Rule of Appellate Procedure 1763 reads as follows:

RULE 1763

. VACATION OF SUPERSEDEAS ON AFFIRMANCE OF CONVICTION

Unless otherwise ordered pursuant to this chapter, upon the remand of the record in any matter in which the judgment of sentence was affirmed a defendant who has been released pending appeal shall appear in the lower court at such time as the defendant may be there called, and shall be committed by that court until the defendant has complied with the original sentence, or any part thereof which had not been performed at the time the defendant was released pending appeal.

Pa.R.A.P. 1763 (emphasis added). Blair asserts that the trial court's delay of over two years and four months from remand of the record to the date that he was required to begin serving his sentence via Rule 1763 is egregious and warrants relief. Blair asserts that he has been seriously prejudiced by the delay; specifically, Blair contends that he had become gainfully employed, secured his own apartment, purchased an automobile, and was continuing his education when, on October 11, 1996, all of his gains "were ripped away from him ... when he was required to return to jail[.]" Blair argues that he is entitled to credit for the period of time that he erroneously remained free due to the trial court's failure to comply with Rule 1763. ² In the alternative, Blair requests that he be discharged.

We note that this is not a case where a court has failed to impose sentence within the requisite time period; ³ Blair was, in fact, sentenced. Rather, at issue is Blair's time at liberty between this court's affirmance of his judgment of sentence and the trial court's order to begin serving sentence. See Pa.R.A.P. 1763. We must determine whether this oversight justifies crediting Blair's sentence for his time at liberty. Rule 1763 specifies no time frame in which the trial court, upon receipt of a remanded record, must call a defendant to appear in court to begin his sentence. We found no Pennsylvania case law interpreting this rule. Additionally, there is no Pennsylvania authority allowing for either credit towards sentence or discharge under these circumstances, i.e., where a defendant has erroneously remained at liberty for an extended period of time before being ordered to commence sentence.

Historically, courts from various jurisdictions applied the rule that where a final sentence of imprisonment had been rendered, delay in executing such a sentence did not preclude a subsequent enforcement of the sentence. See 98 A.L.R.2d 687, ⁴ (where defendant was sentenced, began serving the sentence, procured a writ of habeas corpus, was at liberty under an appeal bond and, through an oversight, was not taken into custody for approximately two years from the affirmance of his judgment of sentence, the court held that the state's delay did not preclude the state from enforcing the judgment of sentence, reasoning that the defendant's sentence was interrupted with his consent in procuring a writ of habeas corpus and a subsequent appeal); Ex parte Silverman, 69 Ohio App. 128, 133, 42 N.E.2d 87, 89 (1942) (where defendant argued that he should be exonerated from serving his sentence where the sheriff failed to lodge him in the state penitentiary within five days after judgment of his conviction, the court stated: "[I]t certainly would be a novel construction to hold that the wrong, if any, of the sheriff cancelled the wrong of the convicted person."); Etheridge v. Poston, 176 Ga. 388, 168 S.E. 25 (1933) (where defendant was sentenced on November 3, 1931, and was not arrested for commitment until March 14, 1932, defendant was not entitled to discharge, notwithstanding the fact that no certiorari had been issued, no motion for a new trial was pending, and defendant had remained in the county and been accessible at all pertinent times); Volker v. McDonald, 120 Neb. 508, 233 N.W. 890 (1930) (where defendant was sentenced, judgment was affirmed on appeal, and no proceedings were had pursuant to the mandate issued to the trial court until 10 years later, it was held that since the defendant had knowledge of the status of his case he should have surrendered himself, that no estoppel could work against the state in such a case, and that the time that elapsed before defendant was actually imprisoned would not be regarded as part of his sentence); Middleton v. State, 160 Ark. 108, 254 S.W. 342 (1923) (where, after sentence and pending appeal, defendant was at liberty on an appearance bond, and no appeal was prosecuted, and one year later defendant was committed under the judgment, the court held that the commitment was legal, since the judgment had never been satisfied; a release on an appearance bond was not a discharge from the penalties imposed by the judgment and no presumption could be indulged that these penalties were satisfied while defendant was under bond).

Many of these early cases espoused a simple, logical approach that, regardless of the delay between sentencing and confinement, a judgment of sentence could only be satisfied with a term of imprisonment. See United States ex rel. Mayer v. Loisel, 25 F.2d 300 (5th Cir.1928) (where six months had elapsed before process was issued enforcing defendant's judgment of sentence, the court held that the mere lapse of time without defendant undergoing the imprisonment to which she was sentenced did not constitute service of the sentence); Ex parte Hill, 86 Okla.Crim. 318, 192 P.2d 849 (1948) (where defendant was sentenced and no commitment was issued for nearly four years, the court held that where the punishment is imprisonment the sentence may be satisfied only by the suffering of the actual imprisonment imposed, even though the defendant was a resident of the county, was listed in the phone book, operated a business, and had occasion to be in the courthouse at various times on business during the time period between the issuance of the mandate and the date of his confinement); Ex parte Riggert, 33 Okla. 303, 125 P. 485 (1912) (where, through no fault of defendant, six months had passed after defendant's appeal was dismissed, the court held that the imprisonment was legal, since the expiration of time without imprisonment was in no sense an execution of the sentence); Ex parte Eldridge, 3 Okla.Crim. 499, 106 P. 980 (1910) (where there was no statutory provision to the contrary, a defendant's judgment could only be satisfied by imprisonment); Riggs v. Sutton, 113 Neb. 556, 203 N.W. 999 (1925) (concluding that in the absence of a statute fixing the time when a sentence of imprisonment in a criminal action shall begin, it should not begin until a defendant is taken into custody; the time for executing a sentence of imprisonment is not an essential element of the sentence, rather, the essential part of the sentence is the punishment, including the time and amount thereof); State v. Cockerham, 24 N.C. 204 (1842) (where defendant was...