Appeal from the Judgment of Sentence April 23, 1985, Court of Common Pleas, Criminal Division, Allegheny County, No. 8408392A.
Richard S. Levine, Assistant Public Defender, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.
Cavanaugh, Olszewski and Kelly, JJ. Kelly, J., files dissenting opinion.
[ 357 Pa. Super. Page 549]
Appellant, Allen G. Washington, pled nolo contendere to a charge of retail theft and upon conviction was sentenced to imprisonment for a period of not less than seven nor more than fourteen months. The theft involved meat valued at $27.00 which Washington attempted to take from a market without payment. His appeal attacks the sentence as excessive and also asserts that the court improperly used misdemeanors not involving weapons in determining the prior record score for sentencing purposes. The trial court, in fact, used prior misdemeanor convictions in adding two points to the prior record score for sentencing guideline purposes. In Commonwealth v. Samuels, 354 Pa. Super. 128, 511 A.2d 221 (1986), a panel of this court held that
[ 357 Pa. Super. Page 550]
". . . in computing a defendant's prior record score for sentencing purposes, a sentencing court cannot count that defendant's prior misdemeanor convictions not involving use of a deadly weapon." Since under the authority of Samuels the court improperly used misdemeanors in calculating the prior record score, we are constrained to vacate the sentence and remand for resentencing.*fn1 Since appellant must be resentenced, we do not reach the excessive sentence issue.
Sentence vacated. Remanded for resentencing. Jurisdiction relinquished.
Sentence vacated. Remanded for resentencing. Jurisdiction relinquished.
KELLY, Judge, dissenting:
I dissent. The majority relies upon the recent panel decision in Commonwealth v. Samuels, 354 Pa. Super. 128, 511 A.2d 221 (1986), in deciding that this case must be remanded for re-sentencing without resort to 204 Pa.Code § 303.7(a), which the panel in Samuels found unconstitutional. In Samuels, Judge Hoffman opined for the court that the Sentencing Commission had exceeded the scope of its legislative authorization in adopting 204 Pa.Code § 303.7(a) which provides for enhancement of the guideline sentencing ranges based upon prior misdemeanor convictions not involving the use of a deadly weapon. However, I cannot agree.
Upon review, I find that the Samuels decision is flawed in that: 1) it treats the enabling act as a penal law subject to the doctrine of strict construction, when in fact the enabling act creates and empowers a legislative commission
[ 357 Pa. Super. Page 551]
and is not in any sense a penal law; 2) it construes 42 Pa.C.S.A. § 2154(2) separately, and not in the context of 42 Pa.C.S.A. 2154 as a whole; and 3) it finds that the language of the enabling act is plate glass clear, when in fact the language is ambiguous. Furthermore, I would find that when the enabling act is construed in accordance with the Statutory Construction Act, 1 Pa.C.S.A. § 1901 et seq., the statute necessarily implies the authority to adopt the provision of the Sentencing Guidelines, 204 Pa.Code § 303.7(a), found unconstitutional in Samuels. Consequently, I dissent and would affirm the judgment of sentence.
On August 6, 1984, the appellant entered a Giant Eagle Supermarket in Pittsburgh, Pennsylvania. Security guards watched him stuff four packages of steaks into his pants. They then followed the appellant through the store and waited for him at the exit as he passed the check-out stand without paying for the steaks. The appellant was confronted by a security guard at the door, whereupon he turned and ran through the store towards the meat counter. The pursuing security guards subdued the appellant and retrieved the four packs of steaks he had attempted to steal. He was then detained by security personnel until city police arrived and placed the appellant under arrest.
On September 7, 1984, the appellant was charged by information with one count of Retail Theft. On January 24, 1985, the appellant appeared before the Honorable Loran L. Lewis and entered a plea of nolo contendere. Judge Lewis accepted the plea and proceeded to find the appellant guilty based upon the evidence presented. Appellant was sentenced on April 23, 1985, to a period of imprisonment of not less than seven (7), nor more than fourteen (14) months. Appellant was sentenced within the mitigated minimum sentencing range for the offense gravity and prior record score assigned. In calculating the appellant's prior record score under 204 Pa.Code § 303.7, the trial court included two points, pursuant to 204 Pa.Code § 303.7(a), to reflect the appellant's prior misdemeanor convictions. A timely motion to reconsider the sentence was filed on May 2, 1985.
[ 357 Pa. Super. Page 552]
This motion was denied on May 6, 1985. A notice of appeal was filed on May 22, 1985. This appeal followed.
The appellant raises two grounds for relief on appeal. First, the appellant argues that the sentence imposed was manifestly excessive under the facts and circumstances of this case. Secondly, the appellant contends that the sentence imposed pursuant to the sentencing guidelines was invalid [unconstitutional] in that the legislature did not grant the Sentencing Commission authority to establish the use of prior misdemeanor convictions not involving the use of deadly weapons as a method of enhancing sentences. I find no merit in these contentions.
The appellant's first contention,*fn1 regarding the alleged excessiveness of the sentence, was not properly preserved for review. In his brief to this Court the appellant argues that it was an abuse of the trial judge's discretion to fail to consider the evidence presented to establish the appellant's character and potential for rehabilitation. The appellant also contends that the trial judge failed to consider alternatives to a sentence of total confinement as required by 42 Pa.C.S.A. § 9721.
However, these issues were neither raised nor argued in the trial court. The appellant's only argument with respect to the alleged excessiveness of the sentence was that, after the two prior record score points which were attributable to prior misdemeanor convictions not involving the use of deadly weapons were deducted, the sentence was then manifestly excessive. (Motion to Reconsider Sentence at 2). The appellant's motion was insufficient to preserve the issues regarding mitigation evidence and sentencing alternatives. These issues are only preserved by specific and timely objections in a motion to reconsider sentence argued in the trial court. See Commonwealth v. Duffy, 341 Pa. Super. 217, 491 A.2d 230 (1985); Commonwealth v. Martin,
[ 357 Pa. Super. Page 553328]
Pa. Super. 498, 477 A.2d 555 (1984). Thus, the appellant's first contention on appeal is without merit.*fn2
The appellant next contends that the trial court erred in applying 204 Pa.Code § 303.7(a) to determine the proper sentencing range under the sentencing guidelines. The appellant argues that the express inclusion of felonies and crimes involving the use of deadly weapons in 42 Pa.C.S.A. § 2154(2) implies the exclusion of the consideration of prior misdemeanor convictions not involving the use of deadly weapons from calculation of the appellant's prior record score under the guidelines. The Court in Samuels agreed with this contention; I do not. My reasoning follows.
This case presents, primarily, a question of statutory construction. Although the appellant challenges the validity of 204 Pa.Code § 303.7(a), it is the legislative authorization in 42 Pa.C.S.A. § 2154 which controls, and which must be construed by this Court. If 204 Pa.Code § 303.7(a) was promulgated within the scope of authority delegated to the Sentencing Commission, it is constitutional; if not, it is unconstitutional.
In construing the enactments of the legislature, appellate courts must refer to the provisions of the Statutory Construction Act.*fn3 The legislature has directed that, "In the construction of the statutes of the Commonwealth, the rules set forth in this chapter shall be observed, unless the application of such rules would result in construction inconsistent with the manifest intent of the General Assembly." 1 Pa.C.S.A. § 1901. In 1 Pa.C.S.A. § 1921(a), (b) the legislature further explained that:
[ 357 Pa. Super. Page 554]
(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
(b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.
Thus, we must first determine whether the issue may be resolved by reference to the express language of the statute.
The statute at issue provides:
The commission shall adopt guidelines for sentencing within the limits established by law which shall be considered by the sentencing court in determining the appropriate sentence for felonies and ...