Commonwealth v. Button

*253SPAETH, President Judge,

concurring:

I concur in the judgment of the majority affirming the judgments of sentence. I write separately because my reasoning differs somewhat from that of the majority in three areas: (1) the validity and effect of the minimum life sentence; (2) the adequacy of the court’s statement of reasons for the sentences imposed; and (3) the validity of the trial court’s action suspending sentencing on some charges pending disposition of these appeals.

-1-

I agree with the majority that the trial court had the authority to impose consecutive life sentences. Appellants also object to the court’s imposition of a minimum sentence of life imprisonment. Section 9757 of the Sentencing Code, 42 Pa.C.S. § 9757, provides that whenever imposing consecutive sentences, the court shall indicate the minimum sentence to be served for the total of all the offenses. Appellants argue that Section 9757 does not apply to cases, such as these, involving two convictions for first degree murder. I should hold that appellants have no basis for objecting to the court’s imposition of a minimum life sentence because the minimum sentence has no binding effect and serves as no more than a recommendation to the Board of Pardons and the Governor that appellants never be released from prison.

The purpose of imposing a minimum sentence is to determine when the prisoner becomes eligible for parole. The power to parole may not be exercised before expiration of the minimum term of imprisonment imposed by the court. 61 P.S. § 331.21. Prisoners such as appellants who are serving sentences of life imprisonment are not subject to parole in any event. Id. The minimum sentence, therefore, in no way alters appellants’ eligibility for parole.

The only way appellants can be released from prison is if they receive a pardon or commutation of sentence from the Governor, see Pa. Const.Art. 4, § 9; 71 P.S. § 299, and the courts have no power or authority to impinge on the Governor’s exercise of that power. See Commonwealth ex rel. *254Cater v. Myers, 412 Pa. 67, 194 A.2d 185 (1963), cert. denied, 376 U.S. 933, 84 S.Ct. 704, 11 L.Ed.2d 653 (1964); Commonwealth v. Gaito, 277 Pa.Super. 404, 419 A.2d 1208 (1980). If the Governor, on recommendation of the Board of Pardons, should decide to commute appellants’ sentences, then the court’s imposition of a minimum life sentence will be of no effect. It is therefore apparent, and the trial court recognized as much in its opinion at pages 8-9, that the only-effect of the court’s imposition of a minimum sentence of life imprisonment is to recommend to the Board of Pardons and the Governor that appellants never be released from prison.

-2-

Appellants argue that the trial court failed to adequately state on the record the reasons for the sentences imposed. The majority rejects this argument, reasoning that the trial court’s imposition of life sentences rather than death sentences demonstrates that the court adequately considered the mitigating factors. Majority Opinion at 5-6. If the trial court had imposed concurrent rather than consecutive life sentences, I should agree with this reasoning. The Sentencing Code mandates a minimum sentence of life imprisonment upon conviction of first degree murder. 42 Pa.C.S. § 9711. Therefore, if appellants had received concurrent sentences of life imprisonment, they would have received the minimum sentence possible under the statute and would have had no basis for complaint. See Commonwealth v. Robinson, 496 Pa, 421, 437 A.2d 945 (1981) (appellant’s contention that trial counsel was ineffective for failing to adequately prepare for sentencing proceedings cannot succeed because appellant received a life sentence, the most relief that he could obtain even if his claim were meritorious).

Appellants, however, received consecutive life sentences. It therefore is not sufficient merely to note that they received life sentences rather than death sentences. Section 9721(b) of the Sentencing Code, 42 Pa.C.S. § 9721(b), provides in relevant part: “In every case in which the court *255imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed.” See also Pa.R.C.P. 1405(b) (“At the time of sentencing, the judge shall: ... (b) state on the record the reasons for the sentence imposed ____”). Since the trial court did have discretion in determining whether to sentence appellants to consecutive or to concurrent life sentences, the court was required to state on the record at the time of sentencing the reasons for imposing consecutive sentences.

Having said this, however, I nevertheless concur in the majority’s rejection of appellants’ argument, for I believe that appellants have waived it for purposes of appellate review.1 At the sentencing hearing the judge expressly stated that he did not feel that he was required to state the reasons for the sentences imposed, beyond noting the mitigating circumstances, because life sentences were mandatory. N.T. 49. Appellants raised no objection to the court’s failure to state its reasons. Moreover, appellants did not raise this objection in their motions to modify sentence. Having failed to raise their objection before the trial court, appellants may not raise it before us. See Commonwealth v. Turecki, 278 Pa.Super. 511, 420 A.2d 658 (1980) (appellant waived objection to court’s failure to state reasons for sentence imposed when he did not raise it at time of sentencing or in motion to modify sentence).

-3-

The trial court suspended sentencing on the robbery and conspiracy convictions pending disposition of these appeals. Appellants argue that they are entitled to have these charges dismissed because of the resulting delay between the time of conviction and sentencing. I agree with the *256majority that in this case consideration of the factors set forth in Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), leads to the conclusion that appellants are not entitled to have the charges dismissed. Nevertheless, I cannot agree with the majority’s suggestion, as I understand it to be, that the practice of suspending sentencing on some charges pending disposition of an appeal involving other charges may have some valid purpose. Rather, I believe that the practice serves no valid purpose and I should make it clear that it is not to be followed or repeated in the future.

The majority suggests that the practice ensures that the defendant will not emerge unpenalized if his underlying conviction on a charge on which he was sentenced is reversed on appeal. Majority Opinion at 249.2 The trial court here suspended sentencing because it thought that on the facts of this case the lesser offenses might merge with murder, but it wanted to be able to sentence appellants on the lesser offenses if the murder convictions were reversed on appeal. While suspending sentencing pending disposition of the appeal does indeed serve this purpose, I do not believe that it is necessary to achieve this purpose. Rather, this purpose can and should be achieved by properly sentencing a defendant at one time on all charges for which he was convicted.

Although the majority does not appear to limit its suggestion that the practice of suspending sentencing on some charges may serve a legitimate purpose to cases involving the possibility of merger of offenses, it seems to me that it is only in such cases that the practice could serve any arguably legitimate purpose. In cases involving the possible merger of offenses, the court, as in this case, would not *257wish to sentence on lesser offenses if the sentences would be illegal and would have to be vacated on appeal. See Commonwealth v. Brown, 290 Pa.Super. 448, 434 A.2d 838 (1981) (court raises possibility that practice of suspending sentencing may have some validity in this situation). But neither would the court wish the defendant to go unsentenced if the conviction for the offense on which he was sentenced were overturned on appeal. The dilemma arises because of the doctrine of merger.

When the doctrine of merger is not implicated, I can see no arguably legitimate reason for the practice. If the defendant has been convicted of two separate offenses, the court must decide what sentence is appropriate for each conviction, considering the gravity and circumstances of the offense, the protection of the public, and the character and rehabilitative needs of the defendant. See 42 Pa.C.S. § 9721(b). None of these considerations is altered when one of the sentences is overturned on appeal. Any accommodations that the court may believe should be made between the sentences can be accomplished by making them either concurrent or consecutive. The court’s discretion is not limited by the doctrine of merger.

Even when the doctrine of merger limits the sentencing court’s discretion, I believe that the practice of suspending sentencing on the lesser offenses is not necessary and should not be resorted to. The proper procedure is to impose no sentence on the lesser offenses. Then, if the conviction on the greater charge is reversed on appeal, the appellate court can remand for resentencing on the lesser offenses. Cf. Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983) (sentences for attempted murder, criminal conspiracy and possession of an instrument of crime were vacated because appellant was improperly convicted of three inchoate offenses; on remand court may impose sentence for either aggravated assault or recklessly endangering another person, for which the court had previously imposed no sentence because of merger with attempted murder, if the court decides to sentence for criminal *258conspiracy as opposed to attempted murder). If the conviction on the greater offenses is upheld, no remand is necessary.

In sum, suspending sentencing on some offenses pending disposition of the appeal involving other offenses is not necessary to fulfill any legitimate purpose and the practice should be discontinued.

. I note that while the trial court did not at the time of sentencing state its reasons for imposing consecutive life sentences, it did do so in its opinion. While this statement does not fulfill the requirement that the statement be made on the record at the time of sentencing, it does at least reveal to appellants the court’s reasons for imposing consecutive life sentences.

. The majority also suggests that the practice avoids the unnecessary burden of remand. Majority Opinion at 249. It seems to me, however, that to the contrary, remand will be necessary more often so that, as in this case, the trial court may impose sentence on the remaining charges. Remand would not be necessary only in those cases where this court dismissed the remaining charges due to the undue delay between conviction and sentencing on the charges.