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COMMONWEALTH PENNSYLVANIA v. COLLEEN ROSE MCMULLEN (08/17/87)

filed: August 17, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
COLLEEN ROSE MCMULLEN, APPELLANT



Appeal from the Judgment of Sentence of November 21, 1986, in the court of Common Pleas of Dauphin County, Criminal Division, at No. 706 CD 1986.

COUNSEL

Patricia A. Wenger, Harrisburg, for appellant.

Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Com., appellee.

Cirillo, President Judge, and Olszewski and Hester, JJ.

Author: Hester

[ 365 Pa. Super. Page 559]

Appellant was convicted in a non-jury trial of violating 35 Pa.S. § 780-113(a)(30), possession with intent to deliver a controlled substance. We agree with her contention that trial counsel was ineffective for failing to object to the trial court's erroneous computation of her prior record score under the sentencing guidelines prior to imposing sentence.*fn1 Accordingly, we vacate the judgment of sentence and remand for resentencing.

[ 365 Pa. Super. Page 560]

Appellant claims that the guideline sentence form prepared by the Commonwealth prior to the sentencing hearing was incorrect in its calculation of prior record score under 204 Pa.Code § 303.7(f). That section provides:

(f) Past convictions. When the maximum sentence applicable to the current offense is dependent upon past convictions, those convictions shall not be used in computing the prior record score. For example: retail theft, some violations of The Controlled Substance, Drug, Device, and Cosmetic Act (35 Pa.C.S. §§ 780-101 -- 780-144), and some motor vehicle offenses are subject to a longer period of confinement when the defendant has been previously convicted of the same offense.

The provision is applicable to appellant by virtue of 35 Pa.S. § 780-115(a), which states:

§ 780-115. Second or subsequent offense

(a) Any person convicted of a second or subsequent offense under clause (30) of subsection (a) of section 13 of this act or of a similar offense under any statute of the United States or of any state, may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.

Appellant's prior conviction under 35 Pa.S. § 780-113(a)(30) for possession with intent to deliver was, but should not have been, used to calculate her prior record score. The error resulted in a prior record score of two. As that was appellant's only ...


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