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COMMONWEALTH PENNSYLVANIA v. JAMES LUCKENBAUGH (04/01/86)

submitted: April 1, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES LUCKENBAUGH, APPELLANT



Appeal from the Judgment of Sentence entered June 7, 1985 in the Court of Common Pleas of Carbon County, No. 001-CR-85.

COUNSEL

Stephen P. Vlossak, Sr., Palmerton, for appellant.

Richard W. Webb, District Attorney, Palmerton, for Com., appellee.

McEwen, Olszewski and Kelly, JJ. McEwen, J., joins opinion. Olszewski, J., files dissenting opinion.

Author: Kelly

[ 356 Pa. Super. Page 356]

Defendant, James Luckenbaugh, appeals from the judgment of sentence imposed by the Court of Common Pleas of Carbon County. On appeal, he claims that the sentencing judge erroneously calculated his prior record score under the Sentencing Guidelines, and thus sentenced him to a longer term than was proper. We agree with appellant's contention, and vacate the judgment of sentence.

Appellant entered a guilty plea on April 9, 1985 to one count of robbery, alleged to have occurred on November 13, 1984. On June 7, 1985, he was sentenced to serve two to four years in the Carbon County Prison. It is from this sentence which he now appeals, claiming that the

[ 356 Pa. Super. Page 357]

    sentencing judge erred in using juvenile adjudications in calculating his prior record score.*fn1

This Court has previously recognized that "[t]he Sentencing Guidelines impose strict limitations on the use of juvenile adjudications in sentencing for crimes committed as an adult." Commonwealth v. Bivens, 337 Pa. Super. 216, 218-19, 486 A.2d 984, 985-6 (1984). At the time of appellant's sentencing, the Guidelines stated that juvenile adjudications could be counted in computing a prior record score 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 occurred on or after the defendant's 14th birthday.

204 Pa.Code ยง 303.7(b)(ii) (emphasis added).*fn2 Appellant alleges that the sentencing court utilized adjudications which occurred before his ...


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