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COMMONWEALTH PENNSYLVANIA v. DAVID PHILLIPS (01/21/85)

submitted: January 21, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID PHILLIPS, APPELLANT



COUNSEL

Dorothy Livaditis, York, for appellant.

J. Christian Ness, District Attorney, York, for Commonwealth, appellee.

Popovich, Watkins and Lipez, JJ.

Author: Watkins

[ 342 Pa. Super. Page 47]

This is an appeal from the judgment of sentence dated January 23, 1984, in the Court of Common Pleas of York County. On November 7, 1983, the appellant entered a guilty plea to the offenses of burglary and theft alleged to have occurred on May 24, 1983. On January 23, 1984, the appellant was sentenced to a term of not less than three (3) years nor more than six (6) years in a state correctional institution. A subsequent petition for reconsideration was denied and this appeal followed.

The first issue raised by the appellant concerns the lower court's computation of the "Prior Record Score" which becomes material in the application of the Pennsylvania Sentencing Guidelines, 204 Pa.Code Ch. 303. In arriving at

[ 342 Pa. Super. Page 48]

    the sentence to be imposed upon the appellant, the lower court relied upon a prior record score of six, which is the maximum that can be used in any case. The lower court's reliance was based partly upon the Pre-Sentence Report prepared by the York County Probation Department. According to the report, the appellant had three prior juvenile adjudications for burglary. However, the appellant has taken the position that he had only been adjudicated delinquent within the meaning of the Sentencing Guidelines on one occasion and, therefore, his prior record score should have been two points.

In support of his position, the appellant cites Section 303.7(b)(1)(ii) of the Sentencing Guidelines which provides as follows:

ยง 303.7. Prior record score.

(b) Adjudications of delinquency and other prior convictions.

(1) The offenses scored in this subsection are as follows:

(ii) All 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 ...


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