Appeal from the Judgment of Sentence in the Court of Common Pleas of Chester County, Criminal Division, No. 590-86, 736-86.
John J. Stanzione, Assistant Public Defender, West Chester, for appellant.
Stuart B. Suss, Assistant District Attorney, West Chester, for Com., appellee.
McEwen, Tamilia and Hoffman, JJ.
[ 368 Pa. Super. Page 364]
Appellant, William Woodward, appeals from the judgment of sentence imposed following his open plea of guilty to two counts each of forgery and theft by deception on June 10, 1986. He was sentenced on August 19, 1986, to two concurrent terms of imprisonment of two to four years on the forgery charges and one year of probation on each theft by deception charge, to run concurrent to each other but consecutive to the forgery sentences. Appellant now argues trial court error in including his prior juvenile record in the computation of the prior record score under the sentencing guidelines.
At the sentencing hearing, the Commonwealth submitted that appellant had a prior record score of six, arriving at this score by including in the prior record score computation appellant's juvenile record, which included adjudications of delinquency for the crimes of robbery and burglary.
Appellant specifically objected to the use of his prior juvenile adjudications in determining the prior record score; the sentencing judge, however, agreed with the Commonwealth, found the use of prior juvenile adjudications to be proper and determined appellant's prior record score to be six.
[ 368 Pa. Super. Page 365]
Appellant filed this timely appeal on September 17, 1986. On appeal, he argues the sentencing commission exceeded its legislative authority by prescribing a range of sentencing of increased severity where prior juvenile adjudications are computed into a prior record score. Appellant contends that without the computation of his juvenile adjudication, his prior record score would have been four rather than six.
At first blush, we would appear to be constrained to follow the holding in this Court's recent decision in Commonwealth v. Tilghman, 366 Pa. Super. 328, 531 A.2d 441 (1987), which would require us to vacate the sentence and remand for resentencing in accordance with that Opinion.
In Tilghman, appellee/defendant pled guilty to a charge of burglary on June 29, 1984 and was sentenced on December 13, 1984. At the sentencing hearing, the court determined it was proper to include appellee's prior juvenile adjudication of involuntary deviate sexual intercourse in computing his prior record score for use under the sentencing guidelines. Appellee filed a timely motion to modify sentence and, on February 21, 1985, the court held a second hearing. At that time, it decided appellee's prior juvenile adjudication could not be considered in computing his prior record score. The Commonwealth appealed. The majority of this Court, en banc, decided that a reading of 42 Pa.C.S.A. § 2154, which was, until December 11, 1986, the enabling act to the sentencing guidelines, showed it neither expressly granted nor necessarily implied the Commission had the power to specify a range of sentences based on criteria not specified in section 2154(2).
In other words, the Sentencing Commission lacked the power to adopt guidelines in which the prior record score was computed on the basis of anything other than prior convictions of felonies or convictions of crime involving the use of a deadly weapon.
Tilghman, 366 Pa. Superior Ct. at 336, 531 A.2d at 445.
While the Tilghman majority recognized the enabling act was amended in December of ...