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COMMONWEALTH PENNSYLVANIA v. ANDREW TILGHMAN (09/01/87)

filed: September 1, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ANDREW TILGHMAN



Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 84-01-2193.

COUNSEL

Maxine J. Stotland, Assistant District Attorney, Philadelphia, for Com., appellant.

Leonard N. Susnov, Assistant Public Defender, Philadelphia, for appellee.

Cirillo, President Judge, and Brosky, Rowley, Wieand, Montemuro, Beck, Tamilia, Popovich and Johnson, JJ. Rowley, Wieand, Montemuro, Beck, Popovich and Johnson, JJ., join. Cirillo, President Judge, files a concurring statement. Tamilia, J., files a dissenting opinion.

Author: Brosky

[ 366 Pa. Super. Page 330]

This appeal is from the judgment of sentence imposed after appellee entered a negotiated plea to burglary. Appellant, the Commonwealth, contends that (1) the court below erred in refusing to include appellee's juvenile adjudications in computing his prior record score; and (2) assuming that appellee's prior record score was correctly computed, the totality of the circumstances indicates that the sentencing court imposed an unreasonably lenient sentence. Finding appellant's first contention to be without merit and the second to have been waived, we affirm the judgment of sentence.

On June 29, 1984, appellee, Andrew Tilghman, pled guilty to a charge of burglary. The guilty plea was negotiated only to the extent that it was agreed that the Commonwealth would recommend that appellee be sentenced in the mitigated minimum range. Sentencing was then deferred.

On December 13, 1984, appellee appeared for sentencing. The parties agreed that the offense gravity score for the burglary offense was "5", but disagreed as to whether a prior juvenile adjudication of involuntary deviate sexual

[ 366 Pa. Super. Page 331]

    intercourse could be used in computing appellee's prior record score. The prior record score was "0" without inclusion of the juvenile adjudication and "3" with such inclusion. The sentencing court determined that it was proper to use the prior juvenile adjudication in computing appellee's prior record score. It then sentenced appellee to 4 to 23 months imprisonment, a sentence in the mitigated range applicable to a defendant with a prior record score of "3" and an offense gravity score of "5."

Appellee filed a timely motion to modify sentence on December 21, 1984. On the same date, the court below filed an order vacating the sentence it had imposed. The sentencing court held a hearing on February 21, 1985, at which time it reversed its earlier decision, and held that appellee's prior juvenile adjudication could not be considered in computing his prior record score. The court then sentenced appellee to 24 months probation, a sentence in the mitigated range applicable to a defendant with a prior record score of "0" and an offense gravity score of "5."

On March 4, 1985, the Commonwealth filed a motion to modify sentence which the court below denied without a hearing. This appeal timely followed.

Appellant initially argues that, although the sentencing court purported to sentence appellee within the sentencing guidelines,*fn1 it applied the guidelines erroneously when it did not include in its computation of appellee's prior record score his juvenile adjudication of delinquency which had been based on the commission of the felony of involuntary deviate sexual intercourse. We disagree.

Initially, we note that a party may not appeal as of right the discretionary aspects of a sentence for a felony or a misdemeanor, but may only request this Court to allow an

[ 366 Pa. Super. Page 332]

    appeal on the basis that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. Commonwealth v. Easterling, 353 Pa. Super. 84, 509 A.2d 345 (1986); 42 Pa.C.S. § 9781(b). In Easterling, a panel of this Court held that there is a substantial question that the sentence is inappropriate if, after a brief review of the record, we are not substantially convinced that one of the following three circumstances is not before us:

(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;

(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or

(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.*fn2

[ 366 Pa. Super. Page 333]

Here, the sentencing court, while purporting to sentence within the guidelines, refused to consider a prior adjudication of delinquency of appellant in computing appellant's prior record score despite the fact that the adjudication was of a type required by § 303.7(b) of the guidelines to be included in a calculation of a prior record score.*fn3 These circumstances convince us that there is a substantial question at least as to whether the sentencing court erroneously applied the guidelines and thus as to whether the sentence imposed in this case is appropriate. Therefore, we shall accept the Commonwealth's appeal.

Although the sentencing guidelines do provide in § 303.7 for inclusion of certain juvenile adjudications of delinquency in the computation of a defendant's prior record score, the basis for the decision of the court was that the Pennsylvania

[ 366 Pa. Super. Page 334]

Sentencing Commission exceeded the authority granted it by the Legislature by providing for such inclusion. The Legislature authorized the creation of the Pennsylvania Commission on Sentencing in 42 Pa.C.S. §§ 2151-53 and in § 2154 specifically directed the Commission to adopt sentencing guidelines as follows:

Adoption of guidelines for sentencing

The Commission shall adopt guidelines for sentencing within the limits established by law which shall be considered by the sentencing court in determining the appropriate sentence for felonies and misdemeanors committed by a defendant. The guidelines shall:

(1) Specify the range of sentences applicable to crimes or a given degree or gravity.

(2) Specify a range of sentences of increased severity for defendants previously convicted of a felony or felonies or convicted of a crime involving the use of a deadly weapon.*fn4

(3) Prescribe variations from the range of sentences applicable on account of aggravating or mitigating circumstances.

(emphasis added).

Before discussing the issue raised by appellant, we think it important first to make clear what the Commonwealth does not contend. It does not contend that the term "convicted" as used in § 2154(2) encompasses juvenile adjudications of delinquency as well as adult convictions. As part of its determination that the Sentencing Commission lacked the power to include juvenile adjudications in the computation of the prior record score, the sentencing court held that the Legislature in using the words "previously convicted" was not also referring to persons who have been previously adjudicated delinquent in a juvenile proceeding. It based this holding on its reading of the Juvenile Act, 42 Pa.C.S. §§ 6301-65, and of caselaw and on an application of general principles of statutory construction. As the Commonwealth

[ 366 Pa. Super. Page 335]

    has not challenged this holding on appeal, we need not address whether a juvenile adjudication constitutes a prior conviction, or whether there exists any interrelationship between § 2154(2) and the Juvenile Act, 42 Pa.C.S. §§ 6301-65.

What the Commonwealth does contend is that § 2154(2) merely sets forth the minimum criteria that the Sentencing Commission was required to consider and did not constrain the Commission to include consideration of only the specified criteria. We believe the Commonwealth's position is contrary to the relevant principles of statutory construction.

First, the limits of the power conferred on an administrative agency must be strictly construed. Murphy v. Commonwealth, 506 Pa. 549, 486 A.2d 388 (1985).

"The principle guiding to decision is this: The power and authority to be exercised by administrative commissions must be conferred by legislative language clear and unmistakable. A doubtful power does not exist. Such tribunals are extra-judicial. They should act within the strict and exact limits defined." Green v. Milk Control Comm'n, 340 Pa. 1, 3, 16 A.2d 9 (1940).

See also Volunteer Firemen's Relief Ass'n v. Minehart, 425 Pa. 82, 227 A.2d 632 (1967); Community College of Delaware County v. Fox, 20 Pa. Commw. 335, 342 A.2d 468 (1975). Only those powers within the legislative grant, either express or necessarily implied, can be exercised by the administrative body.

Pennsylvania Human Relations Commission v. St. Joe Minerals Corp., 476 Pa. 302, 310, 382 A.2d 731, 735-36 (1978).

Under this principle of statutory construction, the Commission had the power to specify a range of sentences of increased severity based on criteria not specified in § 2154(2) only if such a power was expressly within or necessarily implied by the legislative grant. We think it clear from a reading of § 2154 that it neither expressly grants nor necessarily implies that the Commission had the power in question. Thus, the conclusion we must reach

[ 366 Pa. Super. Page 336]

    from the foregoing principle is that the Commission did not have the power to specify a range of sentences of increased severity based on criteria not specified in § 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 a crime involving the use of a deadly weapon.

This conclusion is also consistent with another principle of statutory construction, the general statutory maxim, expressio unius est exclusio alterius. "As the maxim is applied to statutory interpretation, where . . . [the] things to which it refers are designated, there is an inference that all omissions should be understood as exclusions." Sutherland, Stat. Const. § 47.23; see also, Gaebel v. Thornbury Township, Delaware County, 8 Pa. Commw. 379, 303 A.2d 57 (1973). Thus, since § 2154(2) designated previous felony convictions and convictions of a crime involving the use of a deadly weapon as those things for which a range of sentence of increased severity could be specified, there is an inference that the Legislature intended that no other considerations could be so used.*fn5

In an attempt to circumvent this basic maxim, the Commonwealth argues that the Legislature demonstrated that § 2154(2) was intended to include prior juvenile adjudications in the prior record score, as the Legislature did not reject that portion of the sentencing guidelines when the guidelines were submitted to the Legislature by the Commission. However, 42 Pa.C.S. § 2155 provided that the guidelines would become law if not rejected by concurrent legislative resolution within 90 days of their submission. The guidelines were submitted to the Legislature on January 23, 1982, and were approved by the Senate on April 20, 1982. The ...


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