where our Supreme Court said "More important for our resolution of the instant case, however, is our decision . . where we held, inter alia, that even an increase in sentence which is merely designed to correct an inadvertent judicial mistake must be scrutinized as carefully as an increase which results from a reconsideration of sentencing factors or from a judicial change of mind."
How later courts described this case
- where our Supreme Court said "More important for our resolution of the instant case, however, is our decision . . where we held, inter alia, that even an increase in sentence which is merely designed to correct an inadvertent judicial mistake must be scrutinized as carefully as an increase which results from a reconsideration of sentencing factors or from a judicial change of mind."
- concurring opinion of Roberts, J.
Written by the judges who cited it.
Later courts went against this
Overruled by Commonwealth v. Jones, 520 Pa. 385 (1989)
Accordingly, we overrule Commonwealth v. Brown, supra, and we find no merit to appellant’s claim that the sentencing court herein improperly modified the original illegal sentence that was imposed by increasing the maximum period of incarceration after appellant had begun serving his sentence.17
The opinion
Concurring Opinion by
Mr. Justice Roberts:
I readily join in the opinion of the Court and wish to comment briefly on the impermissible sentencing procedure employed by the trial court. It is admitted *279 that the maximum is the only sentence which has legal validity. Commonwealth v. Daniel, 430 Pa. 642 , 243 A.2d 400 (1968); Commonwealth ex rel. Carmelo v. Smith, 347 Pa. 495 , 32 A.2d 913 (1943). And it is conceded that the minimum sentence serves the sole purpose of administrative notice by the court to parole authorities. 1
This case does not present a complicated issue. The trial court imposed a maximum sentence of ten years with a minimum of eight and one-half years. Faced with the impermissible minimum of eight and one-half years, the court later sought to correct that error by more than doubling the minimum, thereby increasing the maximum term from ten years to twenty. In doing so, the court misconstrued its proper role in the sentencing function. In this Commonwealth, it is the maximum term which has legal effect as the sentence, and the minimum must conform to the maximum. See Commonwealth v. Daniel, supra. The maximum may not be increased to accommodate an excessive minimum.
Here the trial court overlooked the controlling feature of the original sentence namely, that the maximum—ten years—is an entirely legal sentence for a conviction of second degree murder. The sentence prescribed by statute for murder in the second degree is imprisonment for not more than twenty years. 2 The maximum sentence initially imposed clearly falls within the statutory limits.
It is impossible to assume, as the trial court did, that an excessive minimum affixed to a statutorily-allowed maximum created an illegal sentence and was *280 a “nullity”. Only the excessive minimum was ineffective. The legal maximum sentence may thus not be disturbed.
There is neither reason nor authority to believe that when the minimum exceeds half the maximum the entire sentence is without legal effect. The legal maximum sentence may not be increased merely by more than doubling the impermissible minimum. 3
Mr. Justice O’Brien and Mr. Justice Manderino join in this concurring opinion.
Act of June 19, 1911, P. L. 1055, § 6, as amended, 19 P.S. § 1057 (1964.) Generally, the minimum is less than one-half the maximum.
Act of June 24, 1939, P. L. 872, § 701, as amended, 18 P.S. § 4701 (1963).
See ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures §§ 6.1(b), 6.2 (Approved Draft, 1968). “Under no circumstances should the sentencing court be authorized to increase a term of imprisonment once it has been imposed.” Id. § 6.1(b).
See also Id., Commentary at 279-80. “The Advisory Committee is clear, however, that the court should not be authorized to increase a sentence once it has been imposed.”