holding that a sentencing court may correct an illegal sentence sua sponte
How later courts described this case
- holding that a sentencing court may correct an illegal sentence sua sponte
- “we take this opportunity to remind our Superior Court colleagues that Superior Court does not have the authority to determine that decisions of this [Pennsylvania Supreme] Court are ‘no longer controlling [...].’”
- approving a trial court’s correction of an illegal sentence the same day it was imposed
- court can, sua sponte, correct an illegal sentence even after the defendant has begun probation or placement
Written by the judges who cited it.
Distinguished
Distinguished by Commonwealth v. Kunish, 529 Pa. 206 (1992)
While the factual underpinnings of the United States Supreme Court’s decision in DiFrancesco and our decision in Jones were analogous, the case presently before us is distinguishable from both of these decisions.
The opinion
ZAPPALA, Justice,
concurring.
I concur in the result reached by the majority. The original sentences imposed by the trial judge violated the provision of the Sentencing Code which requires a minimum sentence of confinement which does not exceed one-half of the maximum sentence imposed, 42 Pa.C.S.A. § 9756(b). Recognizing that the original sentences of forty-eight to sixty-four months violated this statutory provision, the trial judge acted correctly in sua sponte conforming the sentences imposed to that which he had intended. Because the original sentences as stated were illegal, the Appellant and the Commonwealth had the statutory right to appeal the legality of the sentence. 42 Pa.C.S.A. § 9781(a).
In Commonwealth v. Sojourner, 513 Pa. 36 , 518 A.2d 1145 (1986), we rejected an argument that judicial imposition of an increased penalty following the Commonwealth’s appeal from an improper sentence under the sentencing provisions of 75 Pa.C.S. § 3731 violated the defendant’s double jeopardy rights under the federal and state constitutions. We noted that the United States Supreme Court had held in United States v. DiFrancesco, 449 U.S. 117 , 101 S.Ct. 426 , 66 L.Ed.2d 328 (1980) that the principles of double jeopardy are not violated where punishment pursuant to a statute is clear and explicit and the statute would permit an increased sentence on appeal. Because the sentencing provisions of 75 Pa.C.S. § 3731 are mandatory and the Commonwealth has the right of appeal to the Superior Court under § 3731(e)(4) from the imposition of any sentence which does not meet those provisions, we held that a defendant could not have an expectation of finality in a sentence which was improper under § 3731. No violation of a defendant’s double jeopardy rights could be found because the Commonwealth had the statutory right to appeal from an improper sentence.
*392 The instant case is distinguishable from Sojourner in that the trial judge was not required to impose a particular penalty for the crimes charged to which the Appellant plead guilty. For this reason, I find the majority’s reliance upon our holding in Sojourner as authority for its broad statement that, “Thus, there can be no constitutional bar in this jurisdiction to an increase in sentence after service of the sentence has begun.”, (Majority opinion at 389), is a misinterpretation of that holding.
I would find simply that the Appellant in this case cannot claim any expectation of finality in his original sentences because they were illegal and subject to appeal by the Commonwealth under 42 Pa.C.S.A. § 9781(a).