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COMMONWEALTH of Pennsylvania v. Alfred KOZIEL, Appellant

Superior Court of Pennsylvania1981-07-17No. No. 1046
289 Pa. Super. 22432 A.2d 1031

Summary

Holding. The case is remanded with directions for the trial court to entertain a motion for modification of sentence after the fact because the trial court failed to advise the defendant of his right to file such a motion within ten days of sentencing as required by procedure.

Appellant was convicted after a jury trial of Aggravated Assault, Recklessly Endangering Another Person, and Unlawful Restraint, and received concurrent sentences totaling eighteen to thirty-six months. He did not file a motion to modify his sentence within the required ten-day period and instead raised sentencing complaints for the first time on appeal. Generally, appellate complaints about sentences that do not challenge their lawfulness are waived if not raised in the trial court through a timely motion to modify sentence.

However, the trial court failed to inform Appellant of his right to file such a motion, as required by the Pennsylvania Rules of Criminal Procedure. The appellate court found this procedural failure to be dispositive and remanded the case, following its precedent in a similar situation. The lower court was directed to allow Appellant to file a motion to modify sentence after the fact, with a new ten-day filing window from when the appellate opinion reached the trial court.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether sentencing complaints raised for the first time on appeal are waived absent a timely trial-court motion
  • Whether trial court's failure to inform defendant of right to file motion to modify sentence excuses procedural waiver
  • Proper remedy when trial court fails to provide statutorily required sentencing advisories

Procedural posture

Appellant appealed directly to the appellate court following conviction and sentencing without filing any post-trial motions.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

JOHNSON, Judge:

Following a jury trial commenced on February 11, 1980, Appellant was convicted of Aggravated Assault, Recklessly Endangering Another Person, and Unlawful Restraint. No post-trial motions were filed and Appellant was sen tenced on March 31, 1980 as follows: for Aggravated Assault, eighteen to thirty-six months; for Reckless Endangerment, one to two years, to run concurrently with the first sentence; for Unlawful Restraint, one to two years also to run concurrently.

Appellant was ordered to pay the costs of prosecution and was given credit for all time served to date in connection with the above offenses.

No motion was filed for reconsideration of sentence, and Appellant appealed directly to this court.

Rule 302(a) of the Pennsylvania Rules of Appellate Procedure provides that issues not raised in the trial court are waived and cannot be raised for the first time on appeal. Appellant’s complaint concerning his sentence was not raised until this appeal.

The correct procedure would have been to file a written Motion to Modify Sentence within ten days of the imposition of sentence, as per Pa.R.Crim.P., Rule 1410, 42 Pa.C.S.A. The failure to do so waives any complaint concerning sentence that does not involve the lawfulness of the sentence itself. See Commonwealth v. Walls, 248 Pa.Super. 335, 375 A.2d 125 (1977), aff’d 481 Pa. 1, 391 A.2d 1064 (1978).

The purpose of this rule is to allow the sentencing court the first opportunity to modify its sentence. Commonwealth v. Shaw, 280 Pa.Super. 575, 421 A.2d 1081 (1980), Commonwealth v. Gottshalk, 276 Pa.Super. 102, 419 A.2d 115 (1980), citing Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977).

The trial court, however, failed to inform Appellant of his right to file a Motion to Modify Sentence within ten days, as required by Pa.R.Crim.P., Rule 1405(c), 42 Pa.C.S.A.

In Commonwealth v. Rush, 281 Pa.Super. 72, 421 A.2d 1163 (1980) this court remanded and directed the lower court to entertain Appellant’s motion for modification of sentence nunc pro tunc. The lower court in Rush had failed to advise the defendant of his right to petition for modification of sentence within ten days.

The record is silent as to any indication of a waiver by Appellant of his right to file such a motion.

Because of the trial court’s failure to inform Appellant of his rights, we must order this case remanded. The case is remanded with directions to the lower court to entertain Appellant’s motion for modification of sentence nunc pro tunc. Appellant shall have ten days from the filing of the record and this opinion in the lower court in which to file a motion for modification of sentence with the lower court. Jurisdiction is not to be retained by this court.

. 18 Pa.C.S.A. § 2702.

. Id., § 2705.

. Id., § 2902.

. We need not address the issue of possible ineffective assistance at this point in time, as we believe a remand is the appropriate remedy in this case.

. Pa.R.Crim.P., Rule 1405(c) states in part:

Rule 1405. Sentencing Proceeding

At the time of sentencing, the judge shall:

(c) advise the defendant on the record:

(2) of the right to file motions challenging the propriety of the sentence ...

(3) of the ten (10) day time limit within which such motions must be filed;

(5) that only claims raised in this court may be raised on appeal;