Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Lycoming County at No. 85-11, 110.
Walter A. Steinbacher, Assistant Public Defender, Williamsport, for appellant.
Brett O. Feese, District Attorney and Kenneth A. Osokow, Assistant District Attorney, Williamsport, for Com., appellee.
Wieand, Montemuro and Johnson, JJ. Wieand, J., files a dissenting opinion.
[ 366 Pa. Super. Page 173]
Appellant Stephen M. Lyons challenges the judgment of sentence entered against him by the Lycoming County Court of Common Pleas. The question before us is whether the court, in sentencing appellant on a misdemeanor conviction, transgressed the Juvenile Act, 42 Pa. C.S.A. § 6301 et seq., by using appellant's juvenile record to justify a term of imprisonment within the "aggravated minimum range." Because we find that the sentencing court acted improperly, we reverse and remand for resentencing.
Appellant pled guilty on December 5, 1985, to charges of theft by unlawful taking*fn1 and theft by receiving stolen property.*fn2 The Commonwealth graded both offenses as misdemeanors of the third degree, pursuant to Section 3903(b)(2) of the Crimes Code, 18 Pa. C.S.A. § 3903(b)(2). After reviewing a presentence investigation report, the court sentenced appellant to serve a term of imprisonment of not less than six nor more than twelve months.*fn3 The court determined at the sentencing hearing that each
[ 366 Pa. Super. Page 174]
charge bore an offense gravity score of one and that appellant had a prior record score of zero. Although the sentencing guidelines would have allowed the court to impose a term of probation, see 204 Pa. Code § 303.9(b), the court observed that this case is not appellant's first contact with the criminal justice system. Appellant, according to the court, was "adjudicated delinquent on at least nine burglaries" between 1981 and 1983. Because of this "aggravating circumstance," the court felt that a sentence in the "aggravated minimum range" under the guidelines, see 204 Pa. Code § 303.3, was appropriate. The sentence imposed was the maximum permitted by the Crimes Code for a misdemeanor of the third degree, see 18 Pa. C.S.A. § 1104(3). The court denied appellant's motion to modify sentence, and this timely appeal followed.
Appellant contends that Section 6354(b) of the Juvenile Act prohibits the court from considering prior juvenile adjudications when it imposes sentence for conviction of a misdemeanor in adult criminal proceedings. Section 6354 provides as follows:
(a) General rule. -- An order of disposition or other adjudication in a proceeding under this chapter is not a conviction of crime and does not impose any civil disability ordinarily resulting from a conviction or operate to disqualify the child in any civil service application or appointment.
(b) Effect in subsequent judicial matters. -- The disposition of a child under this chapter may not be used against him in any proceeding in any court other than at a subsequent juvenile hearing, whether before or after reaching majority, except:
(1) in dispositional proceedings after conviction of a felony for the purposes of a presentence investigation and report; or
(2) if relevant, where he has put his reputation or character in issue in a civil matter.
42 Pa. C.S.A. § 6354. This provision protects the juvenile from most of the civil and ...