491 A.2d 845 | Pa. Super. Ct. | 1985
This is an appeal from judgment of sentence imposed pursuant to appellant’s plea of guilty to three counts of delivering marijuana. Appellant claims that his sentence,
Although appellant’s sentence is less than the maximum 7V2 to 15 years allowable under 35 Pa.C.S.A. § 780-113(f)(2), we may still set it aside if we find that inadequate reasons have been given for its imposition, Commonwealth v. Gaskin, 325 Pa.Super. 349, 472 A.2d 1154 (1984), or, if from a review of the record it appears that the sentencing court relied partially or wholly on an impermissible factor in fashioning a penalty. Commonwealth v. Duden, 326 Pa. Super. 73, 473 A.2d 614 (1984).
In this instance, the information relied on need not have been eliminated from consideration. It is well settled that the court has broad discretion in sentencing which we will not disturb absent abuse. Commonwealth v. Holler, 326 Pa.Super. 304, 473 A.2d 1103 (1984). It is further clear that the court is bound to examine a range of factors concerning the person and history of the defendant, and the particular circumstances of the crime in fashioning its sentence. Commonwealth v. Weldon, 320 Pa.Super. 102, 466 A.2d 1082 (1983). Prior connections, of whatever nature, with law enforcement authorities are unquestionably among the circumstances to be scrutinized. See e.g., Common
We know of no case, and appellee has cited none, which allows prior convictions alone, too minor to be incorporated into a prior record score, to be used as aggravating circumstances in enhancing a sentence, especially where the prior convictions bear no relation to the crime for which penalty is being determined. The sentencing code would, in fact, by analogy, seem to indicate otherwise.
The death penalty statute, 42 Pa.C.S.A. § 9711(d), the only clear exposition of aggravating circumstances, limits these to either of two factual categories: actions connected in an immediate manner to commission of the particular crime, or prior convictions evidencing the propensity to commit such a crime.
42 Pa.C.S.A. § 9721, Guideline 303.7(f) offers another analogue to the proper utilization of prior convictions. Past Convictions.
When the grading of the current offense is dependent upon past convictions, those convictions shall not be used in computing the prior record score. For example: retail theft, some violations of The Controlled Substance Drug Device and Cosmetic Act (35 Pa.C.S. § 780-101 — 780-144) and some motor vehicle offenses take a higher statutory classification when the defendant has been previously convicted of the same offense.
This section makes unambiguously clear that what is usable to once enhance a sentence may not be employed to duplicative effect. We find that the reverse is true as well. 42 Pa.C.S.A. § 9721, Guideline 303.7(e)
Excluded offenses. Summary offenses, violation of local ordinances, dispositions under Pa.R.Crim.P. 175-185 (relating to accelerated rehabilitative disposition), 35 Pa.C.S. § 780- (relating to probation without verdict) or 35 Pa. C.S. § 780-118 (relating to disposition in lieu of trial or criminal punishment) shall not be used in computing the prior record score, (emphasis added)
Here, the defendant received the benefit of a bargain to have the three separate sentences run concurrently and we see no abuse of discretion by the trial judge in considering the obvious, that there were three offenses and imposing a higher sentence than had there only been one.
Accordingly, judgment of sentence is affirmed.