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COMMONWEALTH PENNSYLVANIA v. DANIEL RAE BARTLOW (07/10/86)

SUPERIOR COURT OF PENNSYLVANIA


filed: July 10, 1986.

COMMONWEALTH OF PENNSYLVANIA,
v.
DANIEL RAE BARTLOW, APPELLANT

Appeal from the Order of the Court of Common Pleas, Bradford County, Criminal Division, at No. 84-2377 CA.

COUNSEL

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.

Author: Brosky

[ 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 for deviating from the guidelines is to, in effect, give an accused credit for the same factor twice. Such an evaluation is error.

Commonwealth v. Drumgoole, supra, 341 Pa. Superior Ct. at 475, 491 A.2d at 1355.

Commonwealth v. Mills, 344 Pa. Super. 200, 496 A.2d 752 (1985) involved the converse of Drumgoole and the situation

[ 354 Pa. Super. Page 447]

    sub judice: the imposition of a sentence in excess of the aggravated range indicated by the sentencing guidelines due to a number of prior convictions. Appellant's argument in Mills was the same as the one instantly before us:

He contends that, in reality, the only reason given by the sentencing court was that appellant had had seven prior convictions for burglary. This, he argues, demonstrated an erroneous application of the guidelines and an unreasonable departure therefrom.

Commonwealth v. Mills, supra, 344 Pa. Superior Ct. at 202, 496 A.2d at 753.

The facts on which that argument was rejected in Mills, are not, however, present here.

We reject appellant's argument. The reasons given by the sentencing court for imposing the maximum sentence authorized for burglary entailed a great deal more than the fact of seven prior convictions for burglary.

Id.

In a note distinguishing Drumgoole, the Mills Court wrote:

A court is not required to follow the guidelines where, as here, the defendant's prior record permits a court to infer that he is an incurable recidivist, that prior rehabilitative efforts have been unsuccessful, and that the defendant has become a threat to law-abiding citizens. Drumgoole does not hold otherwise.

Id. at n. 2.

The requisite inferences detailed in Mills were not made of record by the sentencing court in the instant case. A minimal appearance of fairness requires that if, (as the Sentencing Guidelines and Drumgoole require), an absence of criminal record cannot be a mitigating factor; then, (as the Sentencing Guidelines also require), a heavy criminal record cannot be an aggravating factor -- at least in the absence of the enunciated findings noted in Drumgoole.*fn2

[ 354 Pa. Super. Page 448]

Judgment of sentence is vacated and the case remanded for resentencing. Jurisdiction is relinquished.

JUDGMENT

ON CONSIDERATION WHEREOF, it is now hereby ordered and adjudged by this Court that the Judgment of the Court of Common Pleas of Bradford County is vacated and the case remanded for resentencing. Jurisdiction is relinquished.

Disposition

JUDGMENT

ON CONSIDERATION WHEREOF, it is now hereby ordered and adjudged by this Court that the Judgment of the Court of Common Pleas of Bradford County is vacated and the case remanded for resentencing. Jurisdiction is relinquished.

WICKERSHAM, Judge, dissenting.

I would affirm the judgment of sentence.


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