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Commonwealth v. Benn

Judgment of sentence arising from a hit and run accident vacated because sentencing court erred in deviating from the mandatory sentence and imposing a lesser sentence to accommodate defendant in a county facility.

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� 1 The Commonwealth appeals from the September 18, 2000 judgment of sentence of one (1) to two (2) years’, less one day, imprisonment plus three (3) years’ probation imposed after appellee, Richard Benn, entered an open plea of guilty to one count each of the summary offenses of driving while under suspension *fn1 and failure to give information and render aid in an accident involving death or personal injury, *fn2 and two counts of accidents involving death or personal injury, a misdemeanor of the first degree and a felony of the third degree, respectively. *fn3 In exchange for Benn’s guilty plea, the Commonwealth agreed to nol pros two counts of accidents involving death or personal injury while not properly licensed. *fn4 The charges arose after appellee struck the victims’ vehicle, causing the death of one passenger, and left the scene of the accident.

� 2 The Commonwealth argues the court erred by denying its motion to modify sentence on the basis the sentence the court imposed was illegal. The Commonwealth contends that by imposing a sentence of “not less than one nor more than two years’ less one day in the Lancaster County prison[,]” the sentencing court ignored the mandate of section 3742(c) of the Vehicle Code requiring a mandatory sentence of one to two years’ imprisonment (N.T., 9/18/00, at 23). It is the Commonwealth’s position the court’s action resulted in the imposition of an illegal sentence.

� 3 At the September 18, 2000, sentencing hearing, the parties agreed that for the purpose of sentencing, the summary convictions merged with the conviction for the third degree felony of accidents involving personal injury or death. Sections 3742(b) and (c) of the Vehicle Code address the sentences to be imposed for violating this statute, as well as the authority of the sentencing court. The pertinent sections are set forth below.

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