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filed: January 21, 1986.


Appeal from the Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Chester County, No. 2468/2471-82.


William J. Honig, Norristown, for appellant.

Joseph W. Carroll, III, West Chester, Deputy District Attorney, for Com., appellee.

Spaeth, President Judge, and Cavanaugh, Wickersham, Rowley, Olszewski, Montemuro, Beck, Tamilia and Johnson, JJ. Spaeth, President Judge, files a concurring opinion. Johnson, J., files a concurring and dissenting opinion.

Author: Per Curiam

[ 349 Pa. Super. Page 587]

Appellant Barry Mourar entered a guilty plea to four criminal violations of the Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa.S. § 780-101 et seq. Three of the four offenses occurred after the effective date of the Sentencing Guidelines, 204 Pa.Code § 303 et seq.

Appellant was sentenced on October 19, 1983. For the first offense of delivering cocaine on July 13, 1982, appellant was sentenced to a period of seven to fourteen months imprisonment. When sentencing on the second count of

[ 349 Pa. Super. Page 588]

    delivering cocaine on August 27, 1982, the trial judge considered the first offense to be a prior conviction and added two points to appellant's prior record score. Thus, appellant was sentenced to ten to twenty months on the second count. Both offenses were then counted as prior convictions for purposes of sentencing on the third charge of delivering cocaine on November 19, 1982, and appellant was sentenced to sixteen to thirty-two months imprisonment. On the final offense of possession with intent to deliver cocaine on December 3, 1982, appellant's prior record score resulted in a sentence of twenty-two to forty-two months. All sentences were to run consecutively, for a total sentence of four and one-half to nine years imprisonment. Appellant was also ordered to make restitution of $6,500.00, the amount spent by Government undercover agents to make the purchases that ultimately led to the filing of charges against appellant.

Appellant raises five issues on appeal. First, he contends that his sentence is illegal because the sentencing guidelines are illegal. In Commonwealth v. Kuphal, 347 Pa. Super. 572, 500 A.2d 1205 (1985), we held that the sentencing guidelines are constitutional. Therefore, we will not address this issue further. Appellant also argues that the guidelines were improperly applied; that the order requiring him to pay restitution is illegal; that the trial court erred in denying his petition to withdraw his guilty plea; and that the sentences were excessive. We vacate the judgment of sentence and remand for re-sentencing under the appropriate interpretation of the guidelines and for a full hearing and determination on the matter of restitution.

I. Sentencing Guidelines

Section 303.6 of the sentencing guidelines, 204 Pa. Code § 303.6, provides as follows:

(a) When imposing consecutive sentences for convictions arising out of the same transaction, the prior record score is computed for the offense with the highest offense gravity score in such transaction. For the remaining

[ 349 Pa. Super. Page 589]

    offenses in such transaction, the prior record score shall be zero.

(b) When imposing consecutive sentences for convictions arising out of separate transactions, the prior record score shall be computed independently for each conviction.

The prior record score is determined by § 303.7 which provides for various numbers of points to be added to the prior record score depending on the type of prior crime of which the defendant was convicted. Subsection (g) of § 303.7 defines a prior conviction as

     a case in which a verdict of guilty has been entered in the record and sentence has been imposed for an offense which occurred prior to the date of the current offense, notwithstanding any appeal taken on the prior offense.

In the instant case, when imposing consecutive sentences, the trial court interpreted § 303.7 to mean that when multiple sentences are imposed on the same occasion, those pronounced first could be used cumulatively as prior offenses for enhancement purposes. We find this construction, and the resultant escalation of punishment, inimical both to the concept of substantial justice and to the manifest intention of recidivist provisions generally.

The resolution of the issue lies in the rules of statutory interpretation. Despite appellee's contention that the trial court clearly complied with the definition of "prior conviction" in § 303.7 when imposing appellant's sentences, we find that application of the Statutory Construction Act, 1 Pa.C.S. § 1928(b)(1), operates to produce a far different result, since the provision is penal and must be interpreted strictly. Further, § 303.7 does not exist in a vacuum; it must be read in conjunction with the other guidelines and the statute authorizing their promulgation so as to give effect to all. 1 Pa.C.S. § 1922. It also must be interpreted in light of existing Pennsylvania law.

A brief history of the habitual criminal statute in Pennsylvania prior to adoption of the Sentencing Guidelines is instructive. We begin by noting that at least as long ago as

[ 349 Pa. Super. Page 5901860]

, legislation which addressed the proper disposition of persistent offenders contained language as imprecise as that of the guidelines,*fn2 as have some regulatory statutes which mandate penal sanctions for multiple violations (and which have found their way into case authority).*fn3 Contrary

[ 349 Pa. Super. Page 592]

    to the trial court's inclusion of immediacy into the concept of priority in this case, in all of the Pennsylvania cases interpreting the prior recidivist statutes the priority of a conviction lies in its preceding commission of the offense to be enhanced. Commonwealth ex rel. Turpack v. Ashe, 339 Pa. 403, 15 A.2d 359 (1940); Commonwealth v. McDermott, 224 Pa. 363, 73 A. 427 (1909); Rauch v. Commonwealth, 78 Pa. 490 (1875); Commonwealth v. Lane, 236 Pa. Super. 462, 345 A.2d 233 (1975); Commonwealth v. Calio, 155 Pa. Super. 355, 38 A.2d 351 (1944); Commonwealth ex rel. Flory v. Ashe, 132 Pa. Super. 405, 1 A.2d 685 (1938); Commonwealth v. Sutton, 125 Pa. Super. 407, 189 A. 556 (1937); Commonwealth v. Neill, 16 Pa. Super. 210 (1901). The antiquity of this concept does nothing to diminish its validity.

The hypothesis that prior convictions must antedate commission of the principal offense to be eligible for application as sentence enhancers is, in fact, the majority rule in this country, Annot., 24 A.L.R.2d 1247, and not only the traditional approach in this Commonwealth.*fn4 In fact, the "rule

[ 349 Pa. Super. Page 593]

[is] that a second offense, carrying with it a severer penalty is not, in legal contemplation committed until there has been a conviction for a first offense." Id.

Thirty-one states have habitual criminal statutes, or case authority which expressly defines prior convictions as those which have preceded commission of the principal offense. The reasoning is consistent with the notion that:

Legislation authorizing the imposition of increased punishment on recidivists is directed at those who persist in criminality after having once been convicted of an offense. It is thus generally essential that the alleged conviction shall have preceded the date of the offense for which the increased punishment is sought to be imposed.

39 Am Jur.2d Habitual Criminals § 6. The theme is constant and unwavering, with only one exception in this Commonwealth,*fn5 and can be extrapolated as well from section ...

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