Commonwealth v. BillettCommonwealth v. Billett
- Reporters:
- , ,
- Before:
- Cirillo
Lead Opinion
This is an appeal from the judgment of sentence for receiving stolen property. Appellant contends that (1) the sentencing court erred in including a prior juvenile adjudication of delinquency in its computation of his prior record score for sentencing purposes, and (2) his sentence was excessive. For the reasons that follow, we disallow the appeal in part, and affirm the judgment of sentence.
*127Appellant entered a plea of guilty to one count of receiving stolen property,
Both contentions raised in this appeal concern discretionary aspects of sentencing.2 The requirements of
Appellant first contends that § 303.7(b) of the Sentencing Guidelines is contrary to the legislation authorizing the creation of the guidelines, see
In computing a defendant’s prior record score, the Sentencing Guidelines direct a sentencing court to score, inter alia, “[a]ll prior juvenile adjudications of delinquency where there was an express finding that the adjudication was based on the commission of a felony or one of the weapons misdemeanors listed in subsection (a)(3) where the adjudication occurred on or after the defendant’s 14th birthday.”
In Commonwealth v. Tilghman, supra, our Court was faced with a similar question regarding the interpretation of
the Commission did not have the power to specify a range of sentences of increased severity based on criteria not specified in§ 2154(2) . In other words, the Sentencing Commission lacked the power to adopt guidelines in which the prior record score was computed on the basis of anything other than prior convictions of felonies or convictions of a crime involving the use of a deadly weapon.
Id., 366 Pa.Superior Ct. at 336, 531 A.2d at 445.
If Tilghman were the only appellate decision on the scope of legislative authority delegated by
The Samuels court, like the Tilghman court, was therefore faced with the question whether the enhancement provision contained in
The General Assembly gave the Commission a broad grant of authority to analyze the impact that various factors should have on the sentencing decision and to promulgate a set of recommended sentences in accordance with its analysis. Certain factors (prior felonies, prior offenses of any grade involving deadly weapons) were so important to the legislature that it required the Commission to provide for them. This statement of an affirmative duty of inclusion of certain items carries no prohibition, express or implied, on the authority to include others.
516 Pa. at 303-304, 532 A.2d at 405 (emphasis supplied). Although Samuels and Tilghman are factually distinguishable — Samuels involved an enhancement based on convictions for non-weapons misdemeanors, while Tilghman involved an enhancement based on juvenile adjudications— both cases involved not the legitimacy of the specific basis for the enhancement, but the general authority provided the Commission under the legislation authorizing the creation of the guidelines.
We, of course, are bound by the Samuels court’s holding that
Appellant next contends that his sentence was excessive. Appellant argues that the court placed undue emphasis on his prior record and failed to place adequate emphasis on the sentencing testimony by appellant and his wife regarding his “turning his life around” since the offense was committed. Appellant concedes that the court was aware of his extensive prior record, and that the instant criminal episode occurred but three months after his release from prison for a prior conviction. Moreover, appellant does not allege that the court was unaware of the supposed “turnaround” in his life, or that the court failed to consider other relevant factors. Instead, appellant’s claim is simply that the court’s conclusion based on all of these factors— i.e., the actual sentence imposed — was inappropriate. This type of claim, which asks us to substitute our judgment for that of the sentencing court, does not present a substantial question that the sentence imposed was inappropriate under the Sentencing Code as a whole. See Commonwealth v. Tilghman, supra, 366 Pa.Superior Ct. at 332, 531 A.2d at 443-44 & n. 2. Accordingly, we must disallow the petition for allowance of appeal with regard to this issue.
For the foregoing reasons, we disallow the appeal in part, and affirm the judgment of sentence.
Appeal disallowed in part, judgment of sentence affirmed. Jurisdiction is relinquished.
CIRILLO, President Judge, files a dissenting opinion.Notes
. Without including the juvenile adjudication, appellant’s prior record score would have been three. The minimum range for an offense gravity score of five and a prior record score of three is eight-to-twelve months.
. We note that two recent en banc decisions of this Court have determined that the question whether juvenile adjudications may properly be included in computing prior record scores implicates a discretionary aspect of sentencing and not sentencing legality. See Commonwealth v. Krum, 367 Pa.Superior Ct. 511, 533 A.2d 134 (1987); Commonwealth v. Tilghman, 366 Pa.Superior Ct. 328, 531 A.2d 441 (1987).
. We note that appellant has not challenged the constitutionality of the Sentencing Guidelines. Accordingly, Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987) is inapplicable. Id., 516 Pa. at 380 n. 2, 532 A.2d at 782 n. 2.
Dissenting Opinion
dissenting:
I respectfully dissent. I disagree with the majority’s decision to reach the merits of this appeal. Billett chal*132lenges discretionary aspects of the sentence imposed. Where a purely discretionary aspect of sentencing is being challenged, the appellant müst include in his brief a “concise statement of the reasons relied upon for allowance of appeal.”
I disagree with the majority decision in Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc), which held that an appellant’s failure to comply with