Commonwealth v. Colding

Opinion by

Jacobs, J.,

On December 12, 1972, appellant pled guilty to aggravated robbery on Bill No. 1938 of October Term, 1972. On the same date, he was sentenced to a term of confinement 1 for “time in to four years.” 2 On December 15,1972, a hearing was held to reconsider the sentence. The trial court vacated the sentence of December 12, 1972, and placed appellant on four years probation with the same condition as to restitution. On June 5, 1974, appellant was found to have violated the conditions of his probation. The trial court revoked appellant’s probation, and sentenced him to a term of confinement of one and one-half to three years, sentence to be computed from January 8,1974. This appeal followed.

The appellant contends that the sentence imposed after revocation of probation is violative of the double jeopardy proscription 3 in that the minimum sentence of *615 one and one-half years exceeds the minimum sentence originally imposed.

Initially, we must decide whether or not the appellant has properly invoked the proscription against double jeopardy; we must determine how many sentences have been imposed. See Commonwealth v. Foster, 229 Pa. Superior Ct. 269 , 324 A.2d 538 (1974).

In the instant case, the original sentence was "vacated.” In Commonwealth v. Tomlin, 232 Pa. Superior Ct. 147, 150 , 336 A.2d 407, 409 (1975), we stated that the effect of vacating a sentence is indistinguishable from cases in which a definite sentence is suspended. 4 Vacating the original sentence does not render the sentence void for purposes of double jeopardy. Therefore, our attention is properly focused on two sentences, the original sen *616 tence of “time in to four years,” and the subsequent sentence of one and one-half to three years. 5

The seminal case involving this claim of double jeopardy is North Carolina v. Pearce, 395 U.S. 711 (1969), which dealt with the problem of reconviction and resen-tencing where on appeal by the defendant, the original sentence had been set aside. The Court in North Carolina v. Pearce, supra at 723 held “. . . that neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction.” However, the Court concluded that due process .. requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.” North Carolina v. Pearce, supra at 725 (footnote omitted). The Court then held that “ [i] n *617 order to assure the absence of such motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.” North Carolina v. Pearce, supra at 726 (emphasis added).

Considering North Carolina v. Pearce, supra in the context of the instant appeal, we reject the appellant’s contention that the increase in his minimum sentence is constitutionally proscribed. The appellant’s “legal” sentence is not “more severe,” in fact, his “legal” sentence, the maximum sentence, was decreased.

In Commonwealth v. Diamond, 225 Pa. Superior Ct. 53 , 308 A.2d 137 (1973) (per curiam), the appellant was originally sentenced to a term of not less than five months nor more than five years in the state penitentiary. Several hours after this sentence was imposed, the trial judge learned that the appellant had attempted to escape while being transported to the sheriff’s van. The trial judge ordered the appellant returned to the courtroom for resentencing, and imposed a harsher minimum. The appellant contended that he was twice placed in jeopardy when the harsher minimum was imposed. We affirmed the judgment of sentence per curiam without opinion.

It is well settled that “. . . whether a sentence is stated in terms of minimum and maximum or is for a purely indeterminate term, the maximum sentence is the real sentence.” Commonwealth v. Daniel, 430 Pa. 642, 647 , 243 A.2d 400, 403 (1968). Further, our Supreme Court stated in Commonwealth v. Kalck, 239 Pa. 533, 541-42 , 87 A. 61, 64 (1913) (construing the Act of June 19, 1911, P.L. 1055, §6, 19 P.S. §1057, requiring sentences for an indeterminate term): “Assuming, as we do, for the purpose of interpreting the statute, that it is constitutional, it necessarily follows that the maximum sentence is the only portion of the sentence which has legal validity, and that the minimum sentence is merely an administrative notice by the court to the executive department, calling *618 attention to the legislative policy that when a man’s so-called minimum sentence is about to expire, the question of grace and mercy ought to be considered and the propriety of granting a qualified pardon be determined.” (emphasis added.)

We cannot conclude that the imposition of a minimum sentence, a sentence that has no “legal validity,” is . . unquestionably a restriction on the defendant’s freedom and a deprivation of his liberty within the meaning of the Fourteenth Amendment.” Commonwealth v. Vivian, 426 Pa. 192, 200 , 231 A.2d 301, 305 (1967) (emphasis added) . 6

While the minimum sentence does have significance for a defendant, in that he is not eligible for parole until the expiration of the minimum term, 7 there is no restriction of a constitutionally protected freedom. A defendant does not have an absolute right to parole. Commonwealth v. Brittingham, 442 Pa. 241 , 275 A.2d 83 (1971). 8

*619 Further, unlike North Carolina v. Pearce, supra, this is not a situation where a defendant’s exercise of his right to appeal or collaterally attack the first conviction might be deterred. North Carolina v. Pearce, supra at 725. Instantly, when the new minimum was imposed, the appellant was before the trial court as a probation violator. The appellant had not, prior thereto, appealed claiming that his probation was improperly revoked. We are confronted with neither a factual nor procedural pattern evidencing a potential “chilling” of a defendant’s right of appeal, nor a consequent “vindictiveness” for having successfully pursued an appeal.

We find nothing constitutionally suspect in a trial court’s decision to exercise its discretion, and, after revoking probation, increase the minimum term which a defendant must serve before the question of “. . . mercy or grace ought to be considered. . . .” Commonwealth v. Kalck, supra. The minimum sentence originally imposed was a function of the trial court’s assessment of the appellant’s prospect for rehabilitation. Violation of the conditions of probation casts “. . . new light upon the defendant’s ‘life, health, habits, conduct, and mental and moral propensities’ Williams v. New York, 337 U.S. 241, 245 , 93 L.Ed 1337, 1341, 69 S. Ct. 1079 .” North Carolina *620 v. Pearce, supra at 723 . When a defendant violates the conditions of his probation, the trial court, in light of events subsequent to the imposition of the first sentence, may re-assess its initial determination of the defendant’s prospect for rehabilitation. There is no constitutional impropriety in increasing the minimum sentence in order to effectuate this re-assessment.

The judgment of sentence is affirmed.

. Appellant was also ordered to make restitution to the complainant.

. Both appellant and appellee agree that the sentence of confinement imposed was two months seven days to four years.

. It is now established that the Fifth Amendment prohibition against double jeopardy applies to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784 (1969). Moreover, “[i]t is clearly the law in Pennsylvania that a ‘modification of a sentence imposed on a criminal defendant which in *615 creases the punishment constitute[s] further or double jeopardy.’ Commonwealth v. Silverman, 442 Pa. 211, 215 , 275 A.2d 308 (1971); see also Commonwealth v. Davy, 218 Pa. Superior Ct. 355 , 280 A.2d 407 (1971); Commonwealth v. Jackson, 218 Pa. Superior Ct. 357 , 280 A.2d 422 (1971).” Commonwealth v. Tomlin, 232 Pa. Superior Ct. 147, 149 , 336 A.2d 407, 408 (1975).

. In Commonwealth v. Cole, 222 Pa. Superior Ct. 229 , 294 A.2d 824 (1972) an important distinction was made in considering whether or not a modification of a sentence, after revocation of probation, was violative of the double jeopardy clause of the Fifth Amendment. We drew a distinction between the modification of a sentence which was “suspended pending a period of probation” (Act of May 7, 1925, P.L. 554, §1, 19 P.S. §1051) and the modification of an order of probation imposed in lieu of sentencing (Act of August 6, 1941, P.L. 861, §25, 61 P.S. §331.25). We held that when . . the judge chooses to suspend sentence pending a period of probation, the trial judge may re-sentence the defendant if he violates that probation. The maximum period of the re-sentence is limited, however, to the maximum term under which the defendant was originally sentenced.” Commonwealth v. Cole, supra at 231, 294 A.2d at 825-26 . (emphasis added.) However, when the trial judge exercises . . the statutory option of imposing a period of probation in lieu of sentencing, the court defers sentencing a defendant to a fixed term of imprisonment. ... In other words, *616 the setting of the term of probation is not a term of sentence, and may not act as a limitation on the court to impose a sentence for a term of years greater than the probationary period, not in excess of the maximum fixed by law for the particular offense.” Id. at 232 , 294 A.2d at 826 .

In Commonwealth v. Tomlin, 232 Pa. Superior Ct. 147 , 150 n. 2, 336 A.2d 407 , 409 n. 2 (1975) we again articulated the distinction made in Commonwealth v. Cole, supra.

. The holding in Commonwealth v. Tomlin, 232 Pa. Superior Ct. 147 , 336 A.2d 407 (1975) is not controlling. The case is factually distinguishable. In Commonwealth v. Tomlin, supra, after the appellant’s probation was revoked the trial court increased both the maximum and the minimum sentence. In the instant case, the maximum was decreased, and only the minimum was increased. Commonwealth v. Scheetz, 217 Pa. Superior Ct. 76 , 268 A.2d 193 , allocatur refused, 217 Pa. Superior Ct. l (1970) is distinguishable for the same reason.

. In Commonwealth v. Vivian, 426 Pa. 192 , 231 A.2d 301 (1967) it was held that placing a person on probation was placing him “. . . in jeopardy as that term is used in the Fourteenth Amendment.” Id. at 201 , 231 A.2d at 306 .

. Act of August 24, 1951, P.L. 1401, §4, 61 P.S. §331.21.

. We are mindful of the language in Morrissey v. Brewer, 408 U.S. 471, 482 (1972) that “. . . the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a ‘grievous loss’ on the parolee and often on others. It is hardly useful any longer to try to deal with this problem in terms of whether the parolee’s liberty is a ‘right’ or a ‘privilege’. By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal.” (emphasis added.) However, this language is not applicable to issues involving a defendant’s initial right to parole. The Court in Morrissey v. Brewer, supra, extended the requirement of procedural due process to the termination of a conditional liberty. See also Bell v. Burson, 402 U.S. 535 (1971) (suspension of a motorist’s license); Goldberg v. Kelly, 397 U.S. 254 (1970) (termination of welfare benefits).

*619 In Bell v. Burson, supra, the Court considered the relevant constitutional restraints on “. . . state power to terminate an entitlement whether the entitlement is denominated a ‘right’ or a ‘privilege’.” Id. at 539 . (emphasis added.) However, the Court specifically stated that “[i]f the statute [which directed that licenses be suspended for motorists involved in accidents, unless they post security] barred the issuance of licenses to all motorists who did not carry. liability insurance or who did not post security, the statute would not, under our cases, violate the Fourteenth Amendment.” Id. at 539 . (citations omitted) (emphasis added).

There is no constitutional impediment in restricting a person’s eligibility for parole, although, once paroled, the “conditional liberty” cannot be terminated without the protection of procedural due process, regardless of whether parole is considered a “right” or a “privilege.” '