Commonwealth v. Giovengo
Commonwealth v. Giovengo
Opinion of the Court
Opinion by
Appellant was arrested on March 27, 1955 in Franklin County and charged with two acts of burglary and larceny. On April 11, 1955 he waived presentment and entered pleas of guilty. Sentence was deferred and the appellant was turned over to the Allegheny County authorities to answer for similar crimes in that county. At the time he entered his pleas of guilty in Franklin County he was represented by William C. Hazlett, Esquire, now deceased. Following the entry of guilty pleas in Allegheny County the appellant was sentenced to the Western State Penitentiary for a term of not less than 5 nor more than 20 years, which sentence he is still serving. Detainers were lodged with the penitentiary to insure appellant’s return to Franklin County at the termination of the Allegheny County sentence. On July 27, 1956 appellant filed by mail a petition for a rule to show cause why he should not either be sentenced on the Franklin County indictments or the prosecutions dismissed, alleging failure of the court to sentence him within a reasonable time after the entry of his plea of guilty. On August 30, 1956 the rule was discharged. In February 1957 appellant applied to the Supreme Court of Pennsylvania for a writ of mandamus requesting the Court to order dismissal of the Franklin County charges by reason of the delay in sentencing. The Supreme Court entered an order denying the petition as not stating a case for the issuance of a writ of mandamus: No. 2113 Misc. Docket, Western District. On September 26, 1957 appellant filed a second petition in the Franklin
Appellant contends that the delay of two years, eleven months and ten days in sentencing after the entry of his pleas of guilty deprives him of his right to a speedy trial and due process of law as guaranteed by art. I, §9 of the Pennsylvania Constitution and the Fourteenth Amendment to the United States Constitution. In Com. ex rel. Wilhelm v. Morgan, 278 Pa. 395, 397, 123 A. 337, our Supreme Court said: “The right to temporarily defer sentence, while the court seeks information or the defendant applies for pardon or for other sufficient reason, is universally recognized. The practice of an indefinite suspension of sentence has also long been in vogue in this and some other states, although in a majority of jurisdictions such right is denied, on the ground that an indefinite sus
In Com. v. Fox, 69 Pa. Superior Ct. 456, the defendant, on December 6, 1916, plead guilty to the charge of keeping a bawdyhouse in violation of §4.3 of the Act of 1860, P. L. 382. Pursuant to the provisions of the 1911 act the court suspended sentence and placed the defendant on probation for a year. On January 14, 1918 the defendant was brought in for a violation of the terms of her probation and was on that date sentenced to nine months in the Philadelphia County prison. In that case we said, at pages 458, 459: “The courts have always had power to hold convicts for sentence as long as may be deemed necessary and advantageous to the ends of justice and in the. meantime they may receive information in addition to that disclosed on the trial with respect to what should be an appropriate sentence: Com. v. Mayloy, 57 Pa. 291. They now have statutory authority to suspend sentence for a limited period and thereafter to wholly discharge the defendant if the good conduct of the latter warrants
In Com. ex rel. Holly v. Ashe, 368 Pa. 211, 82 A. 2d 244, Mr. Justice Jones, now Chief Justice, at page 219, said: “The suggestion that the constitutional right of an accused to a speedy trial requires that he be sentenced timely is, of course, true. . . . For any unnecessary delay in the sentencing of an incarcerated defendant, a petition for habeas corpus is the efficient means for correcting the abuse.”
In Com. v. Meyer, 169 Pa. Superior Ct. 40, 82 A. 2d 298, sentence was suspended and the defendant placed on probation. No time limit was placed on the probation period. A sentence to imprisonment over one year later was held proper. The Court stated: “The period of probation under the Act cannot exceed the maximum for which a defendant might have been imprisoned. . . .”
Appellant has cited a number of cases from other states which hold that an indefinite suspension of sentencing is illegal. In the present case we do not consider that the court indefinitely suspended the imposition of sentence. The action of the court below implied that sentence was deferred only for the time necessary for the disposition of the prosecutions in Allegheny County. A detainer was lodged at the penitentiary so that the prisoner would be immediately returned to Franklin County after having completed the Allegheny County sentences. There were many good reasons which could have prompted the Franklin County court to defer sentence. Undoubtedly the Franklin County judge, before sentencing, would want to know
We conclude that in Pennsylvania a sentence may be suspended
Appellant also contends that the Act of April 15, 1907, P. L. 62, as amended, 19 PS §241, which provides that a sentence on a guilty plea shall be imposed forthwith, was violated. The word “forthwith” does not require the immediate imposition of sentence: Com. ex rel. Carter v. Ashe, 168 Pa. Superior Ct. 214, 216, 77 A. 2d 457. It is our opinion that the word “forthwith” as used in the act is directory and not mandatory. Courts in other jurisdictions have reached a similar conclusion: State v. Anderson, 12 N. J. 461, 97 A. 2d 404; Rose v. District Court, 67 Utah 526, 248 P. 486. As long as sentence is pronounced within a reasonable time, it is a valid sentence. What is a reasonable time must be determined after consideration of all of the circumstances in a particular case.
Appellant also argues that he should have been given credit for the time spent in Franklin County jail from the date of his original arrest to the date when he was turned over to the Allegheny County authorities. This argument is answered by the Act of May 28, 1937, P. L. 1036, 19 PS §894, which provides: “. . . unless the person sentenced shall then be undergoing imprisonment under a sentence imposed for any other offense or offenses, in which case the said sentence shall begin to run and be computed, either from the date of imposition thereof or from the expiration of such other sentence or sentences, as the court shall, in its discretion, direct.” In the present case the court below expressly directed that the sentence should begin at the expiration of the sentences which the appellant was then serving.
Judgment of sentence affirmed.
A suspension of sentence is not a sentence: Com. v. Hall, 173 Pa. Superior Ct. 285, 98 A. 2d 386; Com. v. Kimmel, 172 Pa. Superior Ct. 76, 92 A. 2d 247. It is in the nature of an interlocutory judgment but not a final judgment: Com. ex rel. Paige v. Smith, 130 Pa. Superior Ct. 536, 198 A. 812.
It may be appropriate to note here that Com. ex rel. Holly v. Ashe, 368 Pa. 211, 82 A. 2d 244, cited by appellant, pertains only to those cases where there has been a mere delay in sentencing and not to those where the court has formally deferred or suspended sentence. In any event, the Ashe case determined that sentencing at a term of court, subsequent to the term when the convict was convicted, is proper.
Dissenting Opinion
Dissenting Opinion by
Justice delayed is justice denied. Article I, Section 9 of the Constitution of our Commonwealth guar
Reference
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