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COMMONWEALTH PENNSYLVANIA v. WILLIAM H. BIVENS (01/04/85)

filed: January 4, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
WILLIAM H. BIVENS, JR., APPELLANT



COUNSEL

Bruce A. Barrett, Assistant Public Defender, Meadville, for appellant.

John M. Dawson, Assistant District Attorney, Meadville, for Commonwealth, appellee.

Spaeth, President Judge, and Brosky and Olszewski, JJ.

Author: Olszewski

[ 337 Pa. Super. Page 217]

In this case, William H. Bivens appeals the judgment of sentence imposed by the Court of Common Pleas of Crawford County. He contends that the sentencing judge erroneously calculated his prior record score and thus, under the Sentencing Guidelines, sentenced him to a longer term than was proper. After reviewing the record, the opinion of the sentencing court and the law, we agree and vacate the judgment of sentence.

William H. Bivens was charged on June 27, 1983, with unlawful delivery of a controlled substance, in connection with the sale of 24 grams of marijuana to an undercover police officer.*fn1 He entered a plea of no contest on November 15, 1983, and was sentenced to 21 months to 42 months

[ 337 Pa. Super. Page 218]

    in the State Correctional Institution at Pittsburgh. He moved for reconsideration of sentence, arguing that the court had added to his prior record score two points for a juvenile adjudication when that adjudication should have counted as zero.*fn2 The court rejected his argument.

The general rule for courts in selecting among sentencing alternatives is that "the sentence imposed should call for confinement consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant." 42 Pa.C.S. Sec. 9721(b) (Purdon's 1982). To effectuate this principle, the court is required to consider the Sentencing Guidelines when determining the appropriate sentence for felonies and misdemeanors. 42 Pa.C.S. Sec. 9721; 204 Pa.Code Sec. 303.1(a).

The Sentencing Guidelines impose strict limitations on the use of juvenile adjudications in sentencing for crimes

[ 337 Pa. Super. Page 219]

    committed as an adult.*fn3 Juvenile adjudications may be counted when:

(T)here 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 ...


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