Appeal from the Order of the Court of Common Pleas, Bradford County, Criminal Division, at No. 84-2377 CA.
Beth G. Williams, Towanda, for appellant.
Albert C. Ondrey, Assistant District Attorney, Greensburg, for Commonwealth, appellee.
Wickersham, Brosky and Watkins, JJ. Wickersham, J., files a dissenting statement.
[ 354 Pa. Super. Page 445]
This appeal is from judgment of sentence imposed for Aggravated Assault and Burglary. Appellant raises four sentencing issues for our review.*fn1 In one of those issues it is argued that the sentencing court erred in considering appellant's prior convictions as an aggravating circumstance,
[ 354 Pa. Super. Page 446]
since that factor was already involved in the computation of his prior record score under the Sentencing Guidelines. We agree and, accordingly, vacate judgment of sentence and remand to resentencing.
At sentencing the court stated: "The Court also notes that the defendant has a history of several serious offenses, specifically, first degree felonies." The sentence then imposed by the court was beyond the aggravated range of the Sentencing Guidelines, although within the statutory maximum. Appellant contends that the sentencing court erred in considering a factor already given play through the computation of the prior record score in the Sentencing Guidelines.
The Sentencing Commission made clear that "sentences should not be aggravated or mitigated for circumstances incorporated in other provisions of the Guidelines, such as . . . prior record." Sentencing Guideline Implementation Manual, 15.
This point was recognized in an opinion of this Court, Commonwealth v. Drumgoole, 341 Pa. Super. 468, 491 A.2d 1352 (1985).
The trial court's first reason for deviating from the guidelines is that the appellee lacked a prior record . . . . Moreover, the guidelines inherently give credit to those who have led a relatively law-abiding life. An accused's prior record, or lack thereof, is one of the two elements utilized in determining the guideline sentence ranges. The guideline sentence as computed in this case is based on a prior record score of zero (0). Thus, to assign the lack of, or even a minimal, prior record as a reason ...