Commonwealth v. Colding

Dissenting Opinion by

Spaeth, J.:

The majority holds that an increase in appellant’s minimum sentence, following revocation of his parole, does not pose a problem of double jeopardy. Its rationale for that position is that only the maximum sentence has legal validity, and in the case before us, the maximum sentence was decreased. I disagree.

In my view, an increase in the minimum sentence is a significant deprivation of liberty, even if “.. . the mini *622 mum sentence serves the sole purpose of administrative notice by the court to parole authorities.” Commonwealth v. Brotan, 455 Pa. 274, 279 , 314 A.2d 506, 509 (1974) (Roberts, J., concurring). The effect of the change in appellant’s minimum sentence is to increase substantially (from two months and seven days to one and one-half years) the period of time he must remain in prison before being considered for parole. In Commonwealth v. Silverman, 442 Pa. 211, 217 , 275 A.2d 308, 311 (1971), the Supreme Court said that “. . . a modification of a sentence imposed on a criminal defendant which increases the punishment is double jeopardy. . . .” Delaying eligibility for parole “increases the punishment,” and thereby violates the Fifth Amendment’s bar against punishing a defendant twice for the same offense. 1

The Supreme Court’s discussion in Commonwealth v. Butler, 458 Pa. 289 , 328 A.2d 851 (1974), of the minimum sentence as it relates to parole supports this analysis. There the Court said: “Few interests are more substantial than freedom from lawfully-imposed confinement [citations omitted]. Indeed, parole is a fundamental public policy of this Commonwealth. 61 P.S. §331.1 (1964). Parole may mean an opportunity to start anew in society, and may be a determinative step in a person’s 'rehabilitation, adjustment, and restoration to social and economic life.’ ” 458 Pa. at 296-297 , 328 A.2d at 856 .

Although the constitutional holding of Butler , that predicating eligibility for parole on the basis of sex is unconstitutional, is not immediately relevant to the case before us, the Court’s analysis of the significance of parole and the importance of the minimum sentence in establishing a defendant’s eligibility for parole is relevant. Here, the majority has concluded that “[t]here is'no *623 constitutional impediment in restricting a person’s eligibility for parole. . . Majority opinion at 618-619, n. 8. However, Butler , read in the context of Commonwealth v. Silverman, supra, says that there may well be such an impediment.

The majority distinguishes both Commonwealth v. Tomlin, 232 Pa. Superior Ct. 147 , 336 A.2d 407 (1975), and Commonwealth v. Scheetz, 217 Pa. Superior Ct. 76 , 268 A.2d 193 , allocatur refused, 217 Pa. Superior Ct. I (1970), because in those cases the trial judge had increased both the maximum and minimum sentences. I regard this distinction as factual only. Both cases established the principle that “. . . an increased sentence after a probation violation was improper and that the court was limited to a reinstatement of the originally imposed sentence.” Commonwealth v. Tomlin, supra, 232 Pa. Superior Ct. at 150 , 336 A.2d at 409 . They did not require the trial judge to refrain from increasing only the maximum sentence. Rather, their theory seems to me identical to that of Commonwealth v. Silverman, supra: any new sentence that represents an increase in punishment violates the State and Federal prohibitions against double jeopardy.

This is not a case like North Carolina v. Pearce, 395 U.S. 711 (1969), in which the defendant had won reversal on appeal and was subsequently reconvicted and resen-tenced. There, as the majority states, the Court held “. . . that neither the double jeopardy provision nor the equal protection clause imposes an absolute bar to a more severe sentence upon reconviction.” North Carolina v. Pearce, supra at 723. Here appellant is being punished more severely without having been reconvicted.

For these reasons, I would reverse the judgment of sentence and remand to the lower court for resentencing consistent with this opinion.

Hoffman, J., joins in this opinion.

. The prohibition against double jeopardy has been made applicable to the States through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784 (1969).