Com. v. Bogden

• Decision Date: 27 July 1987
• Citation: 364 Pa.Super. 300,528 A.2d 168
• Parties: COMMONWEALTH of Pennsylvania v. Alexander J. BOGDEN, Jr., Appellant. 01282 Pitts. 1986
• Court: Pennsylvania Superior Court

Page 168

528 A.2d 168

364 Pa.Super. 300

COMMONWEALTH of Pennsylvania v. Alexander J. BOGDEN, Jr., Appellant.

01282 Pitts. 1986

Superior Court of Pennsylvania.

Argued March 3, 1987.

Filed June 5, 1987.

Reargument Denied July 27, 1987.

David F. Pollock, Waynesburg, for appellant.

Charles J. Morris, Dist. Atty., Waynesburg, for Com., appellee.

Before CAVANAUGH, POPOVICH and MONTGOMERY, JJ.

POPOVICH, Judge:

This is an appeal from a judgment of sentence for driving under the influence of alcohol by the appellant, Alexander J. Bogden. We affirm.

On June 13, 1986, a jury found the appellant guilty of driving while intoxicated but not guilty of homicide by vehicle. No post-verdict motions were filed.

On June 24, 1986, the appellant was sentenced to one year less one day to two years less two days and fined $2,500. The next day, a Motion for Reconsideration of Sentence was filed and a hearing was conducted as a result thereof on July 1, 1986. Counsel for the appellant orally argued that (1) the sentence imposed exceeded the sentencing guidelines, (2) no pre-sentence report was ordered as required in first offense cases, as well as the absence of a contemporaneous statement as to the court's reasons for deviating from the Sentencing Guidelines, and (3) the fine was issued without inquiry into the appellant's ability to pay.

The appellant testified at the modification hearing concerning his age (60 years old), work history (coal miner for twenty-two years) and marital status (divorced). He also remarked about refraining from drinking and driving since the accident and regretting the loss of a life because of his actions.

Imprisonment at his age, offered the appellant, would impinge upon his ability to secure employment on his release from jail.

At the completion of the hearing, the court continued the appellant's bond and ordered a pre-sentence report to be prepared by the Greene County Probation Office.

On September 8, 1986, a second hearing on the appellant's Motion for Reconsideration of Sentence was held. Counsel for the appellant argued for the imposition of a sentence of probation in lieu of the one to two years imprisonment previously handed down.

The court, in consideration of the appellant's Motion, vacated its June 24, 1986 order imposing sentence and "resentenced" the appellant. In doing so, the court examined the appellant's financial circumstances in deciding to reinstate the $2,500 fine. Likewise, the court re-imposed the identical term of imprisonment as had been issued earlier.

Prior to the completion of the hearing, the appellant was advised of his rights to take exceptions to the sentence by filing a motion to that effect within ten days, and that an adverse ruling would have to be appealed within thirty days thereof to Superior Court.

No motion to modify the sentence was filed because of counsel's belief that:

... procedurally we no longer have the option of filing exceptions to this order since this is the order of sentence handed down in response to our first set of exceptions; therefore, the time has now begun to run for Mr. Bogden to decide whether or not to appeal.

To effectuate what transpired at the hearing, an order was issued on September 8, 1986 by the court vacating its June 24, 1986 sentence and imposing an identical sentence, but this time it was done with the benefit of a pre-sentence report. Also, an opinion in support of the sentence was filed on September 9 which responded to the allegations of impropriety as to the sentence. This was followed by a memorandum opinion by the same court supplementing its earlier opinion. This timely appeal followed.

In the appellant's "Statement Of The Questions Involved" appears the following:

A. WAS THE SENTENCE WITHIN THE SENTENCING GUIDELINES?--No.

B. WAS A CONTEMPORANEOUS WRITTEN STATEMENT FILED WHICH GAVE THE REASONS WHY THE SENTENCE EXCEEDED THE SENTENCING GUIDELINES?--No.

C. WAS ANY IMPERMISSIBLE FACTOR RELIED UPON IN PART OR IN WHOLE IN HANDING DOWN THE SENTENCE?--Yes.

D. WAS A SENTENCE OF TOTAL CONFINEMENT INCONSISTENT WITH THE FACTORS ENUMERATED IN 18 PA. C.S.A. § 1325 AND THEREFORE IN VIOLATION OF APPELLANT'S RIGHT TO DUE PROCESS?--Yes.

E. WAS THE FINE IMPOSED EXCESSIVE UNDER 42 PA. C.S.A. § 9725(b) AND WHEN COMPARED TO PRIOR SENTENCES IN THE SAME JURISDICTION.--Yes.

(Appellant's Brief at 4)

Before addressing the merits of the appellant's complaints, we must determine, as is our right and obligation, whether this Court has jurisdiction to hear the appeal, and we do so despite no objection from any of the parties involved. See Commonwealth v. Dorman, 272 Pa.Super. 149, 414 A.2d 713 (1979).

It is well-settled in this Commonwealth that a Court of Common Pleas retains jurisdiction over a case, in the absence of an appeal being taken, for a period of thirty days after the order in question has been entered. See 42 Pa.C.S. § 5505. This has been interpreted to mean that a sentencing court has only thirty days from the imposition of sentence within which to act to modify the sentence. See Commonwealth v. Thomas, 301 Pa.Super. 333, 447 A.2d 994 (1982); Comment to Pa.R.Crim.P 1410. The failure of the sentencing court to act within the thirty-day appeal period will normally result in the loss of jurisdiction to modify sentence and is exemplified by the remarks of this Court in Commonwealth v. Corson, 298 Pa.Super. 51, 444 A.2d 170 (1982), wherein we responded, for the sake of argument, to the timeliness of an appeal taken from the denial of a motion to modify sentence heard beyond the thirty-day period following the imposition of sentence where the sentence was not vacated prior to the expiration of the stated time period. We wrote:

It cannot be discounted that the lower court did not vacate the prior judgment of sentence, either in connection with granting the motion for modification or in order to have additional time within which to consider the motion. Such procedure would have had the same effect as an express order granting reconsideration under Pa.R.App.P. 1701.2 See Comment to Pa.R.Crim.P. 1410. Hence, the 30-day period for appeal ran continuously. Commonwealth v. Wilkinson, 260 Pa.Super. 77, 79, 393 A.2d 1020, 1021 (1978). As a result, the sentencing court had only 30 days from the imposition of sentence within which to act to modify the sentence. See Comment to Pa.R.Crim.P. 1410; see also 42 Pa.C.S.A. § 5505 (Pamphlet, 1980); Pa.R.App.P. 1701. Consequently, the lower court did not have jurisdiction over the case so as to conduct a hearing (on July 7, 1981) regarding the merits of appellant's motion for modification of sentence some four and one-half (4- 1/2) months after the Motion was filed (on February 20, 1981). Ibid.

298 Pa.Super. at 55 & n. 2, 444 A.2d at 172 & n. 2 (Emphasis in original).

Instantly, albeit a motion to modify and a hearing thereon all occurred in a timely fashion following the imposition of sentence on June 24, 1986, the court below neglected to vacate the sentence when it granted the motion to modify. This would normally be jurisdictionally fatal. See Commonwealth v. Lynch, 304 Pa.Super. 248, 450 A.2d 664 (1984). However, the particular facts of this case counsel against quashing the appellant's appeal on the ground of untimeliness.

In explaining, we observe that at the outset of the June 24, 1986 sentencing proceeding, the court advised the appellant:

You have a right, after this sentencing today, to take exceptions to the sentence by filing those exceptions in this Court within ten (10) days of sentencing. If after the Court disposes of those exceptions to your detriment, you then have 30 days to take an appeal to the Superior Court of Pennsylvania.

(Sentencing Hearing at page 2) (Emphasis added)

The appellant did as he was told in that he did not take an appeal until "after the Court dispose[d]" of his motion to modify, even though disposition of the motion did not occur until (September 8, 1986) more than two and one-half months following the imposition of sentence (on June 24, 1986).

It is obvious that the court below misinformed the appellant in not advising him that an appeal had to be taken within thirty days of the entry of sentence. See Pa.R.Crim.P. 1405(c)(1). Accordingly, we cannot fault the appellant for failing to act timely under our Rules of Appellate Procedure. See Pa.R.App.P. 903(a). Thus, the appeal will not be quashed for being untimely since it was perfected within thirty days of the court's vacation of the original sentence on September 8, 1986. See Thomas, supra.

An additional hurdle which we must clear prior to responding to the appellant's complaints relates to a determination of whether the issues raised have been preserved for appellate review.

It will be recalled that counsel for the appellant filed a motion to modify with regard to the initial sentence. Nonetheless, he was of the opinion that this procedure did not have to be followed a second time when the first sentence was vacated at the September 8, 1986 reconsideration hearing and a new (although identical) sentence was issued. This is erroneous.

As this Court held in Commonwealth v. Broadie, 339 Pa.Super. 394, 399, 489 A.2d 218, 220 (1985):

... Pa.R.Crim.P. 1410 requires that a motion to modify sentence be filed with the sentencing court within ten days after imposition of the modified sentence in order to preserve any sentencing issues.

This did not transpire below. Therefore, the failure to file a second motion to modify subsequent to the September 8 proceeding waives all sentencing issues by the appellant, except for those involving the legality of the sentence. Id.

With the preceding in mind, we conclude that all issues are waived for not being properly preserved for appellate review.

In Point A, the appellant questions whether "the sentence [was] within the sentencing guidelines[.]"

Because the offense for which the appellant was convicted (i.e., driving under the influence of...