Commonwealth v. BartlowCommonwealth v. Bartlow
- Reporters:
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- Before:
- Wickersham
Lead Opinion
This аppeal is from judgment of sentence imposed for Aggravated Assault and Burglary. Appellаnt raises four sentencing issues for our review.1 In one of those issues it is argued that the sentencing court erred in considering appellant’s prior convictions as an aggravating circum
At sentencing the court stated: “The Court also notes that the defendant has a history of several serious offenses, specifically, first degree felonies.” The sentence then imposed by the court was beyond the aggravated range of the Sentencing Guidelines, although within the statutory maximum. Appellant contends that the sеntencing court erred in considering a factor already given play through the computаtion of the prior record score in the Sentencing Guidelines.
The Sentencing Commission madе clear that “sentences should not be aggravated or mitigated for circumstances inсorporated in other provisions of the Guidelines, such as ... prior record.” Sentencing Guideline Implementation Manual, 15.
This point was recognized in an opinion of this Court, Commonwealth v. Drumgoole, 341 Pa.Super. 468, 491 A.2d 1352 (1985).
The trial court’s first reason for deviating from the guidelines is that the аppellee lacked a prior record____ Moreover, the guidelines- inherently give сredit to those who have led a relatively law-abiding life. An accused’s prior record, or lack thereof, is one of the two elements utilized in determining the guideline sentence rangеs. The guideline sentence as computed in this case is based on a prior record score of zero (0). Thus, to assign the lack of, or even a minimal, prior record as a reаson for deviating from the guidelines is to, in effect, give an accused credit for the same fаctor twice. Such an evaluation is error.
Commonwealth v. Drumgoole, supra, 341 Pa.Superior Ct. at 475, 491 A.2d at 1355.
Commonwealth v. Mills, 344 Pa.Super. 200, 496 A.2d 752 (1985) involved the converse of Drumgoole and the sitúa
He contends that, in reality, the only reason given by the sentencing court was that appellant had had seven prior convictions for burglary. This, he argues, demonstrated an erroneous application of the guidelines and an unrеasonable departure therefrom.
Commonwealth v. Mills, supra, 344 Pa.Superior Ct. at 202, 496 A.2d at 753.
The facts on which that argument was rejected in Mills, are not, however, present here.
We reject appellant’s argument. The reasons given by the sentencing court for imposing the maximum sentence authorized for burglary entailеd a great deal more than the fact of seven prior convictions for burglary.
Id.
In a note distinguishing Drumgoole, the Mills Court wrote:
A court is not required to follow the guidelines where, as here, the defendant’s prior record permits а court to infer that he is an incurable recidivist, that prior rehabilitative efforts have beеn unsuccessful, and that the defendant has become a threat to law-abiding citizens. Drumgoole does not hold otherwise.
Id. at n. 2.
The requisite inferences detailed in Mills were not made of record by the sentencing court in the instant case. A minimal appearanсe of fairness requires that if, (as the Sentencing Guidelines and Drumgoole require), an absence of criminal record cannot be a mitigating factor; then, (as the Sentencing Guidelines also require), а heavy criminal record cannot be an aggravating factor — at least in the absence of the enunciated findings noted in Drumgoole.2
JUDGMENT
ON CONSIDERATION WHEREOF, it is now hereby ordered and adjudged by this Court that the Judgment of the Court of Common Pleas of Bradford County is vacated and the case remanded for resentencing. Jurisdiction is relinquished.
Notes
. Those issues are, first, that a resentencing violated double jeopardy. The opinion of the trial court adequately treats this issue and no further comment is necessary in this opinion. Second, appellant contends that inadequate reasons were given for the sentence imposed. Upon review of the record, we find this issue to be without merit. The third issue is the subject of the greater part of this opinion, and warrants vacating judgmеnt of sentence. Finally, appellant argues that the consideration of his juvenile adjudications was in error. That issue is presently being considered by this Court en banc. On remand for resentencing, the sentencing court should be guided by our disposition of that issue.
. We also note that, unlike Mills, the only aggravating circumstances considered by the sentencing court in this case was appellant’s prior
Dissenting Opinion
dissenting.
I would affirm the judgment of sentence.