HomeMy WebLinkAboutCP-21-MD-0000463-2012
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CP-21-MD-0463-2012
:
V. : CHARGE: PROTECTION FROM ABUSE –
: INDIRECT CRIMINAL CONTEMPT
:
PAUL WALTERS :
OTN: L713825-0 : AFFIANT: PTL. THOMAS DOLAN
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925(a)
EBERT, J., September 6, 2012 –
FACTS
On June 14, 2012, a criminal complaint was filed against the Defendant
charging him Indirect Criminal Contempt. A hearing was scheduled on the Indirect
Criminal Contempt charge and on July 3, 2012, the Defendant pled nolo contendere to
the charge. A presentence investigation was ordered. Defendant was directed to
appear for sentence on July 10, 2012. There was no plea agreement as to the
sentence the Defendant would receive.
On July 10, 2012, the Defendant appeared for sentencing. A pre-sentence
investigation prepared by the Cumberland County Probation Office recommended the
following:
1. Pay the costs of prosecution.
2. Undergo a period of incarceration – credit for 25 days
from June 15, 2012 – July 10, 2012.
3. Pay a fine up to $1000.00.
4. Participate in the AMEND program.
The Court sentenced the Defendant to pay the costs of prosecution, pay a fine of
$1000.00, and to undergo imprisonment in the Cumberland County Prison for 6 months.
The Court ordered the Defendant eligible for work release.
On August 1, 2012, the Defendant filed a Pro Se “Motion to Appeal and
Appointment of Counsel.” On August 6, 2012, the Court appointed counsel to
represent the Defendant and ordered him to file a concise statement of errors
complained of on appeal on or before August 27, 2012. On August 23, 2012, the
Defendant’s statement of matters of complained on appeal was filed and stated the
following:
1. Whether the trial court abused its discretion and committed
reversible error when it sentenced Appellant to six (6) months
imprisonment based upon Appellant’s nolo contendere plea to one count
of Indirect Criminal Contempt. Appellant’s sole issue on
appeal addresses the discretionary aspects of Appellant’s sentence.
This opinion is filed pursuant to Pa.R.A.P. 1925 (a).
DISCUSSION
A. Validity of the Sentence Imposed.
As noted, Appellant’s sole issue on appeal challenges the discretionary aspects
of his sentence. The sentence imposed upon the Defendantisclearly a legal sentence.
23 Pa.C.S.A. §6114 (b)(1) provides that “a sentence for contempt under this chapter
may include:
(i)(A) a fine of not less than $300.00 nor more than $1000.00
and imprisonment up to 6 months.
This offense is not listed in the Pennsylvania Sentencing Guidelines and accordingly
this is no “standard range” sentence for this crime. A copy of the Defendant’s pre-
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sentence investigation is attached. The Defendant received the maximum penalty
because the Defendant committed this offense while he was out on bail pending trial on
simple assault and resisting arrest. The victim of that simple assault charge was the
same victim named in this indirect criminal contempt charge. Additionally, the Court
noted that the Defendant had an extensive criminal history as noted by the probation
officer, and that the Defendant has consistently demonstrated an “unwillingness to
follow the rules.” Given the Defendant’s extensive record and the fact that he chose to
violate the specific bail condition that he have no contact with the victim by committing
this offense, the sentence he received was legal and fully justified.
B. Potential Error in the Sentencing Proceeding.
The Defendant filed his pro se appeal to the Superior Court within thirty days of
the date of his sentence, leading the Court to believe that he was aware of his post-
sentence rights. However, after examination of the record to include a search by the
stenographer who was assigned to this Court on the day in question, there is no
evidence that the Defendant was advised that he had ten days to file a motion for
modification of sentence. Defendant’s counsel at the sentencing was an experienced
criminal defense attorney who routinely places on the record at the time of sentence
that she will advise her client of his post sentence rights. However, after careful
examination of the record, we cannot determine if this Defendant was advised by the
Court or counsel that he had 10 days to file a post-sentence motion.
Accordingly, we feel constrained, pursuant to the holding in Commonwealth v.
Curry, 465 A.2d 660, (Pa.Super. 1983), to have the case remanded to this Court in
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order to allow the Appellant to file a Motion for Reconsideration of Sentence Nunc Pro
Tunc.
By the Court,
M. L. Ebert, Jr., J.
Matthew P. Smith, Esquire
Chief Deputy District Attorney
Jacob Jividen, Esquire
Court-Appointed Counsel for Defendant
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