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COMMONWEALTH PENNSYLVANIA v. EVERETT SCOTT STEVENS (01/10/86)

SUPERIOR COURT OF PENNSYLVANIA


filed: January 10, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
EVERETT SCOTT STEVENS, APPELLANT

Appeal from the Judgment of Sentence of February 7, 1985 in the Court of Common Pleas of Delaware County, Criminal Division, at No. 1253-84.

COUNSEL

Michael J. Malloy, Assistant Public Defender, Media, for appellant.

Sandra G. Elias, Deputy District Attorney, Media, for Commonwealth, appellee.

Johnson, Hoffman and Cercone, JJ.

Author: Hoffman

[ 349 Pa. Super. Page 311]

This is an appeal from the judgment of sentence for retail theft and criminal conspiracy. Appellant contends that the lower court abused its discretion in sentencing him outside of the sentencing guidelines, see 204 Pa.Code §§ 303.1-.9, reprinted following 42 Pa.C.S.A. § 9721, solely because of his prior record. Appellant argues that his prior record was already taken into account in his prior record score, which is used in determining the recommended sentencing ranges under the sentencing guidelines. (Brief for Appellant at 9). For the following reasons, we affirm in part, vacate in part, and remand for resentencing.

Following a jury trial, appellant was convicted and sentenced to a term of two-and-one-half-to-five years imprisonment

[ 349 Pa. Super. Page 312]

    for retail theft and a concurrent term of one-to-two years imprisonment for criminal conspiracy. A motion to modify the sentence was timely filed and denied. This appeal followed.

We agree with appellant that he was sentenced outside of the sentencing guidelines for the offense of retail theft.*fn1 Appellant's prior record score is six, see N.T. February 7, 1985 at 4, and the offense gravity score for a first conviction for retail theft, a misdemeanor of the first degree, is three, 204 Pa.Code § 303.8. For these scores, the sentencing guidelines provide for a minimum range of eight-to-twelve months, a mitigated minimum range of four-to-eight months, and an aggravated minimum range of twelve-to-eighteen months. Id. at § 303.9. Therefore, appellant's minimum sentence of two and one-half years was one year longer than the longest sentence provided for in the guidelines.

A sentencing "court shall . . . consider any guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing . . . ." 42 Pa.C.S.A. § 9721(b). "The purpose of the sentencing guidelines is to insure that more uniform sentences are imposed in this Commonwealth." Commonwealth v. Royer, 328 Pa. Superior Ct. 60, 66, 476 A.2d 453,

[ 349 Pa. Super. Page 313456]

(1984). When computing a sentence under the sentencing guidelines, the sentencing court first determines a defendant's prior record score, which is a score based on the number of the defendant's prior criminal convictions and juvenile adjudications. See 204 Pa.Code § 303.7. That score is then used in conjunction with the offense gravity score, a score based on the severity of the present offense, see id. § 303.8, to determine the relevant sentencing ranges. See id. § 303.2. A sentencing court may, of course, sentence outside the guidelines, but when doing so, must provide a contemporaneous written statement to explain the reason(s) for that action. 42 Pa.C.S.A. § 9721(b); 204 Pa.Code § 303.1(h).

The Implementation Manual of the Pennsylvania Commission on Sentencing provides sentencing courts with additional guidance on using the sentencing guidelines. With reference to sentencing within the aggravated or mitigated ranges of the Sentencing Guidelines, the manual states that, "[o]rdinarily, sentences should not be aggravated or mitigated for circumstances incorporated in other provisions of the guidelines, such as deadly weapon possession or prior record score." Commonwealth of Pennsylvania Commission on Sentencing, Sentencing Guidelines Implementation Manual, Part V at 15 (1982). It follows, then, that if sentences should not be imposed in the aggravated or mitigated ranges because of circumstances incorporated in other provisions of the guidelines, a sentencing court should not impose a sentence entirely outside of the guideline ranges solely based on a criterion already incorporated in other provisions of the guidelines.

Here, the sentencing court stated on the record that it was sentencing appellant outside of the guidelines because of appellant's continual involvement with the criminal justice system since 1965 and "to protect society [because] [a]s long as [appellant] is in jail he can't be out committing crimes . . . ." (N.T. February 7, 1985 at 14-16). The court then enumerated a series of appellant's prior offenses. (Id. at 15). Thus, in the written statement explaining why appellant was sentenced outside of the guidelines, the sentencing

[ 349 Pa. Super. Page 314]

    court relied on a single factor: appellant's prior record. The court should not have relied on his prior record alone, however, because it was a factor already accounted for in the sentencing guideline ranges. Therefore, the sentencing court, in effect, accorded double weight to appellant's prior record in determining his sentence.*fn2

Accordingly, because the court below relied solely on appellant's prior record to impose a sentence outside of the sentencing guideline ranges for retail theft, that sentence must be vacated and this case remanded for resentencing. The sentence for criminal conspiracy is affirmed.

Judgment of sentence for criminal conspiracy affirmed. Judgment of sentence for retail theft vacated and remanded for resentencing. Jurisdiction is relinquished.

Disposition

Judgment of sentence for criminal conspiracy affirmed. Judgment of sentence for retail theft vacated and remanded for resentencing. Jurisdiction is relinquished.


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