rejecting the argument of sentencing court error in considering unadjudicated arrests because the sentencing court “did not treat the prior arrests as convictions or give them undue weight”
How later courts described this case
- rejecting the argument of sentencing court error in considering unadjudicated arrests because the sentencing court “did not treat the prior arrests as convictions or give them undue weight”
- although 12 prior arrests shown on presentence report, court only relied upon the 9 that defendant recalled
- although 12 prior arrests shown on presentenee report, court only relied upon the 9 that defendant recalled
Written by the judges who cited it.
The opinion
*204 BROSKY, Judge,
concurring:
Although I agree with the result reached in the lead opinion, I cannot agree that Commonwealth v. Tomasso, 506 Pa. 344 , 485 A.2d 395 (1984), holds that sentencing issues are preserved if they are raised either at the sentencing hearing or in a motion to modify sentence. In Tomasso , the Supreme Court found that three sentencing issues which a majority of a panel of this court did not consider on the grounds of waiver in Commonwealth v. Tomasso, 311 Pa.Super. 103 , 457 A.2d 514 (1983) had been sufficiently presented to the sentencing judge. The Tomasso court, however, does not clearly explain the basis for its finding.
Of the three issues found waived by the Superior Court, the first had not been raised in a motion to modify sentence; the second had not been raised at the sentencing hearing or in a motion to modify; and the third was raised only at the sentencing hearing. The Supreme Court does not expressly explain on what basis it finds that all of these issues were preserved for review.
The Tomasso court cites only the case of Commonwealth v. Walls, 481 Pa. 1 , 391 A.2d 1064 (1978) which was an appeal from a sentence imposed before Pa.R.Crim.P. 1410 (requiring motions to modify) was even in effect. A conclusion that Tomasso stands for the proposition that a sentencing issue can be preserved by raising it either at sentencing or in a Rule 1410 motion does not explain why the Supreme Court in Tomasso considered preserved an issue which was raised on neither occasion.
Given the ambiguity of Tomasso, I must conclude that the case of Commonwealth v. Warden, 335 Pa.Super. 315 , 484 A.2d 151 (1984) still accurately states the law regarding preservation of sentencing issues. Specifically, Warden requires that all sentencing issues (except, of course, those involving a claim of an illegal sentence) must be raised in a motion to modify sentence. 1 Since, instantly, appellant’s *205 first and second issues were not raised in a Rule 1410 motion, I would find that they have been waived.
. Warden also requires that certain sentencing issues also be raised at the sentencing hearing as well as in a Rule 1410 motion.