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

SUPERIOR COURT OF PENNSYLVANIA


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 House took no action with respect to the guidelines although, in any event, it was powerless to stop the guidelines from becoming effective once the Senate had

[ 366 Pa. Super. Page 337]

    approved them. On April 23, 1982, the sentencing guidelines became effective in Pennsylvania. We believe it would be inappropriate to ascribe a legislative intent to the fact that the Legislature did not reject that portion of the guidelines dealing with prior juvenile adjudications when the House did not even vote on the matter. The Commonwealth's position here simply fails to persuade.*fn6

[ 366 Pa. Super. Page 338]

We thus find no merit in the Commonwealth's contention that § 2154(2) merely set forth the minimum criteria that the Sentencing Commission was required to consider. Therefore, the Commonwealth has advanced no basis on which we could conclude that the sentencing court erred in holding that the Sentencing Commission had no power to specify a range of sentences of increased severity for defendants previously adjudicated delinquent and thus erred in not including appellee's prior adjudication in his prior record score.

With respect to the Commonwealth's second contention on appeal, we must, again, make clear what the Commonwealth does not contend. It does not contend that prior adjudications of delinquency may be used as an "aggravating circumstance", under § 2154(3), to place a sentence in the aggravated range. The sentencing court held that prior juvenile adjudications could not be considered as an "aggravated circumstance", but could only be considered in deciding where within an otherwise appropriate range to sentence a defendant. The Commonwealth has not challenged this holding on appeal.*fn7

What the Commonwealth does contend is that, even if appellee's prior record score was computed correctly, and thus his sentence was within the mitigated range of the guidelines, the sentence was unreasonably lenient under the totality of the circumstances. The Commonwealth argues that any minimum sentence of less than four months imprisonment

[ 366 Pa. Super. Page 339]

    would be unreasonable.*fn8 However, except for the claim that the court below applied the guidelines erroneously, see 42 Pa.C.S. § 9781(c)(1), the only claim made by the Commonwealth in its motion to modify sentence was that the sentencing court had sentenced appellee outside the sentencing guidelines and that the sentence unreasonably deviated from the guidelines, see 42 Pa.C.S. § 9781(c)(3). It is well-settled that sentencing issues not raised in a motion to modify sentence are waived. Commonwealth v. Duffy, 341 Pa. Super. 217, 491 A.2d 230 (1985); Commonwealth v. Warden, 335 Pa. Super. 315, 484 A.2d 151 (1984). Therefore, we conclude that the Commonwealth has waived its claim that a sentence in the mitigated range is unreasonably lenient.*fn9

Finding no merit to either of the Commonwealth's claims, we will affirm the judgment of sentence. Judgment of sentence affirmed.

Disposition

Finding no merit to either of the Commonwealth's claims, we will affirm the judgment of sentence. Judgment of sentence affirmed.

CIRILLO, President Judge, concurring:

I concur in the result, but write separately to point out that the majority seems to be perpetuating a standard for determining when to allow an appeal of the discretionary

[ 366 Pa. Super. Page 340]

    aspects of sentence that the Pennsylvania Supreme Court repudiated in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

The probationary sentence under review is a legal sentence, and therefore no party may appeal it as of right. See 42 Pa.C.S. § 9781(a). Before this court may accept an appeal from the discretionary aspects of a legislatively permissible sentence, the appellant must invoke our discretionary jurisdiction by showing "that there is a substantial question that the sentence imposed is not appropriate under [the Sentencing Code]." Id. § 9781(b). In Pa.R.A.P. 2119(f), the supreme court has prescribed the manner in which an appellant must petition our court to allow a discretionary appeal of this sort:

An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.

After oral argument in this case, the supreme court held in Tuladziecki that this court had improperly allowed an appeal from the discretionary aspects of a sentence without requiring the jurisdictional statement specified by 2119(f). Thereafter, the Commonwealth in this case filed a motion to supplement its brief with a "concise statement" under 2119(f) setting forth the reasons it relied upon for allowance of appeal, and we granted that motion. The Commonwealth has now set forth in a 2119(f) statement that the sentencing court refused to consider the defendant's prior adjudication of delinquency in calculating his "prior record score" as required by the Sentencing Guidelines, 204 Pa.Code § 303.7(b), reprinted in 42 Pa.C.S.A. § 9721 note (1982). I agree with the majority's decision to hear this appeal, because it appears to me that the Commonwealth's statement demonstrates a "substantial question" that the scheme of the

[ 366 Pa. Super. Page 341]

Sentencing Code as a whole "has been compromised." See Tuladziecki, 513 Pa. at 513, 522 A.2d at 20.

However, the majority persists in stating the standard for allowance of appeal to be 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 guidelines and the sentence is unreasonable.

At 443. This manner of searching for reasons for allowing an appeal is, in my view, contrary to the spirit of Tuladziecki, which held that this court had erroneously allowed an appeal of the discretionary aspects of a sentence even though it was outside the guidelines and "unreasonable." See id., 513 Pa. at 516 n. 2, 522 A.2d at 21 n. 2 (Larsen, J., dissenting). Although Tuladziecki 's primary holding was that we must require a rule 2119(f) statement before allowing an appeal of the discretionary aspects of sentence, its implicit and broader holding is that compliance with the Sentencing Guidelines is not the only nor even the most important factor we should consider in deciding whether to allow an appeal. Rather, the supreme court has issued a gentle reminder that the 2119(f) requirement "furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court's evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases," 513 Pa. at 513, 522 A.2d at 19-20 (emphasis added), and that, in deciding whether a "substantial question" of sentencing inappropriateness exists to justify our allowance of appeal, we should consider the propriety

[ 366 Pa. Super. Page 342]

    of that sentence under "the entire Sentencing Code," id., 513 Pa. at 513, 522 A.2d at 20, not merely under the Sentencing Guidelines.

TAMILIA, Judge, dissenting:

This Commonwealth appeal comes before the court challenging the trial judge's determination that section 303.7(b)(1)*fn1 of the Sentencing Guidelines, which provides for the inclusion of juvenile adjudications and prior misdemeanor convictions in a prior record score, cannot be used except to determine where, within a specific range, a sentence should fall.

Appellee, Tilghman, entered a negotiated guilty plea to burglary on June 29, 1984. At the time of sentencing on December 13, 1984, his prior record score was set at "3" because of a juvenile conviction for involuntary deviate sexual intercourse, and a four to twenty-three month sentence was imposed. The appellee filed a motion for modification of sentence on December 19, 1984 and the original sentence was vacated by the court on December 20, 1984. After the reconsideration hearing on February 21, 1985, the trial judge lowered appellee's prior record score to "0" and sentenced appellee to twenty-four months probation. Upon denial of the Commonwealth's motion for modification, this appeal followed.

The basis for the trial court's decision was first that nothing in 42 Pa.C.S.A. § 2154 (the enabling act adoption

[ 366 Pa. Super. Page 343]

    provisions) authorizes a more severe range of sentences for persons previously convicted of misdemeanors, and similarly, because of the use of the word "convictions" rather than "adjudications", only the consideration of juvenile matters is authorized, not their use in prescribing a harsher range of punishment. The court concludes as well that prior misdemeanor convictions and juvenile adjudications cannot be included as aggravating circumstances under an expressio unius theory according to which the term prior record does not fall within the rubric of "aggravating circumstances' since it is not specifically mentioned.

Appellant, characterizing the court's reasoning as casuistry, argues that both legislative history and principles of statutory construction compel the conclusion that the intent of the legislature was to include juvenile adjudications in fashioning punishment, otherwise the uniformity at which the guidelines are directed is undermined by the court's inability to fashion sentences on the basis of complete data. The Commonwealth also argues that the latter occasioned appellee's sentence, one which, it is contended, is based on a failure to consider the statutorily mandated totality of the circumstances. The conclusion reached by appellant is that in view of appellee's background, including drug and alcohol problems, juvenile history, (other than the IDSI) and adult history, the sentence is inappropriately lenient.

While the issue that "previously convicted" would encompass "juvenile adjudication" was not raised by the Commonwealth in the court below, we have no problem with considering the issue. The majority, as does the appellee, relies heavily on 42 Pa.C.S.A. § 6354 of the Juvenile Act, Effect of adjudication; subsection (a) states: "An order of disposition or other adjudication . . . is not a conviction of crime and does not impose any civil disability ordinarily resulting from a conviction . . . ." The trial court, presented this issue for our determination when it decided "previously convicted" did not mean juvenile adjudication. Despite the Commonwealth's agreement with the trial court that conviction as used in section 2154(2) does not comprehend adjudications

[ 366 Pa. Super. Page 344]

    of delinquency as well as adult convictions, in our review we may determine whether or not the trial court was correct in that determination. We have not raised the issue sua sponte, it was presented to us by the trial court's findings and by implication as a major thrust of the Commonwealth's brief in relying on a totality of circumstances argument. Even had the issue not been raised below, the constitutionality of a statute may be raised for the first time by the appellee, even if the appellant is prohibited from doing so, to sustain a judgment. In re Adoption of McCray, 460 Pa. 210 n. 5, 331 A.2d 652 n. 5 (1975) citing Sherwood v. Elgart, 383 Pa. 110, 117 A.2d 899 (1955). Appellee's counter statement of questions involved was the correctness of the trial court in concluding that the sentencing commission could not use prior juvenile adjudications as convictions for adult sentencing purposes under the guidelines. For the above reasons, the issue is properly before us.

The intent of subsection 6354(a) is to assure that a juvenile adjudication does not carry the taint of criminal conviction as to civil liberty. It is circumscribed by the phrase "does not impose any civil disability ordinarily resulting from a conviction or operate to disqualify the child in any civil service application or appointment."

This is in keeping with the rehabilitative purpose of the juvenile legislation -- to prevent juvenile adjudications from interferring with a person obtaining employment, voting, getting into school, obtaining credit or any of the myriad of other aspects of life where a "conviction-adjudication" would cause a penalty.

In an entirely separate subsection, 42 Pa.C.S.A. § 6354(b) Effect in subsequent judicial matters, the legislature indicated the intent to clearly distinguish it from subsection (a); subsection (b) provides:

(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

[ 366 Pa. Super. Page 345]

    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.

Clearly, the legislative intent was to insulate the juvenile from the consequence of his behavior so far as any civil liability might arise but not to throw the shield around him once he became an adult, if he continued in a life of crime. The legislation is finely tuned so that the person who remains law abiding is protected and the person who is not and is convicted of crimes, after reaching majority, loses the shield. The law clearly distinguishes between pre-conviction and post-conviction consequences. In a civil action, if he places his reputation or character in issue, the prior juvenile record may be introduced to contest it. (Section 6354(b)(2)). By limiting it to civil matters, by implication, it may not be introduced to impeach credibility in criminal matters, because it comes under section 6354(a) as a civil disability and may not be treated as a conviction for evidentiary purposes due to the specific exclusion. He retains the mantel of protection of subsection (a) for criminal matters until he has been convicted as an adult. The exclusion is removed for criminal dispositional purposes by section 6354(b)(1). See Commonwealth v. Katchmer, 453 Pa. 461, 309 A.2d 591 (1973).

Simply stated, juvenile adjudications are not to be treated as convictions of crimes for any purpose except in dispositional proceedings after conviction as an adult of a felony, for purposes of presentence investigation and report or if relevant where he puts his reputation or character in issue in a civil matter.

Clearly, Katchmer may be distinguished from this case as there, reputation and character were in issue as to an informational witness in a criminal matter, and since neither subsection (b)(1) or (b)(2) existed. The predecessor to

[ 366 Pa. Super. Page 346]

    subsection (a) was controlling, and the issue presented in the case sub judice, was not considered.

The trial court overreaches in applying Katchmer, supra, to the present situation. Katchmer interpreted only that language in the Juvenile Court Law, Act of June 2, 1933, P.L. 1433, § 19, 11 P.S. 261 (repealed by Act of December 6, 1972, P.L. 1464, No. 333, § 337, 11 P.S. § 50-337 (Supp. 1973-74)) which provides:

§ 261. Children before juvenile court not to acquire disabilities

No order made by any juvenile court shall operate to impose any of the civil disabilities ordinarily imposed by the criminal laws of the Commonwealth, nor shall any child be deemed to be a criminal by reason of any such order or be deemed to have been convicted of crime. The disposition of a child or any evidence given in a juvenile court shall not be admissible as evidence against the child in any case or proceeding in any other court. 1933, June 2, P.L. 1433, § 19.

While in Katchmer the Supreme Court ruled on this section, which was applicable at the time, Justice Nix recognized the addition to the law that came about by passage of the act of 1972, stating in Katchmer:

We need not here consider the effect of section 324 of the Juvenile Act of 1972, Act of December 6, 1972, P.L. , no. 333, § 27, 11 P.S. 50-324 (Supp.1973-74).

Id., 453 Pa. at 465, n. 4, 309 A.2d at 594 n. 4.

The first section of section 6354 is derivative of section 261 of the act of 1933, the second section, (b)(1) and (2), is the addition that occurred under the amendments of 1972, P.L. 1464, No. 333, § 27, Act 1977, August 3, P.L. 155, No. 41. Katchmer did not and could not rule on these sections, and they bring a significant and substantially restricted protective mantel to be cast over juvenile offenders.

The turbulance of the 70's impelled the legislature to remove from the protection afforded juveniles the effect of adjudication as opposed to conviction, when it added the two categories enumerated in sections (b)(1) and (2). This was

[ 366 Pa. Super. Page 347]

    in keeping with the national trend toward crime and offenders which resulted in mandatory sentencing in some cases, and sentencing guidelines to restrict the discretion of judges, and to some degree, to assure imposition of minimum sentences. The sentencing guidelines, as developed by the Sentencing Commission, were entirely consistent with this legislation, and the Commission's legislative mandate, to bring about consistency and uniformity of sentencing, and to give appropriate weight to prior convictions. If it failed to give some weight to juvenile convictions (which it has moderated) as opposed to prior adult convictions, the sentencing guidelines become badly skewed. The Sentencing Commission, in comments to this section, in its published guide indicated it adopted this section after it had extensive discussion with the Juvenile Court Judges' Commission, individual judges, legislators, attorneys and other criminal justice professionals, and after several public hearings. The Commission, to accommodate concerns about ambiguity of juvenile adjudications, required that the Juvenile Court Order must expressly find that the juvenile committed a felony or one of the weapons misdemeanors listed in section 303.7(a), Pa.C.Sent.2d (September 1, 1986), p. 52. It is not uncommon or unheard of for a juvenile offender to spend five to ten years in custody before he is sentenced on his first adult offense. To give no weight to serious crimes, which are applicable only if there has been an adult adjudication or conviction, would be to treat a very serious former juvenile offender in some instances, as a first time offender when applying the guidelines. This does not serve the public nor does the correctional system, represented by probation, parole and institutional officials, have an equitable basis for treatment. The uniformity which was the underlying purpose and legislative intent, is defeated. Commonwealth v. Smith, 333 Pa. Super. 179, 481 A.2d 1365 (1984), is equally applicable here as in the situation where prior juvenile adjudications were to be considered by the court in presentence reports. To deny the weighing, which the guidelines would provide, is to permit the consideration of the adjudication without quantifying its effect or

[ 366 Pa. Super. Page 348]

    as expounded below, may prevent their consideration at all. This destabilizes the sentencing process.

In ascertaining the legislative intent, we must look to 1 Pa.C.S.A. § 1921, Legislative intent controls:

(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.

If the term "conviction" as used in 42 Pa.C.S.A. § 6354(a) controlled in all respects, there would be an internal conflict because in subsections (b)(1) and (b)(2) only if the adjudications are construed to be convictions would they carry the weight which permits them to be seriously considered in sentencing or as character rebuttal in civil cases. Prior arrests alone, which did not result in a conviction, may not be considered in sentencing. Commonwealth v. Shoemaker, 226 Pa. Super. 203, 313 A.2d 342 (1973) (consideration of prior arrests without a conviction ignores the presumption of innocence and was error); Commonwealth v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) (on remand 361 Pa. 35, 63 A.2d 77 (1949) (considering prior criminal charges which did not result in convictions and were dismissed or resulted in acquittal is inconsistent with due process of law); Commonwealth v. Bryant, 312 Pa. Super. 379, 458 A.2d 1010 (1983) (no error in reviewing prior arrest record when trial judge acknowledges he had no convictions); Commonwealth v. Craft, 304 Pa. Super. 494, 450 A.2d 1021 (1981) (trial court did not give undue weight to prior arrests); Commonwealth v. Wolfe, 349 Pa. Super. 415, 503 A.2d 435 (1986) (prior convictions must precede commission of principle offense to be included in prior record score calculations). In Commonwealth v. Johnson, 333 Pa. Super. 42, 481 A.2d 1212 (1984), this Court permitted review of prior arrests without conviction, and subsequent convictions to the one at issue as reflecting on defendant's character as a convicted repeat offender. However, the underlying assumption is that the trial court had knowledge that the arrest did not result in conviction as the court may

[ 366 Pa. Super. Page 349]

    not treat the arrest as a conviction in sentencing. Nowhere is this more clear than in decisions of the U.S. Supreme Court in Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (uncounselled guilty plea resulting in conviction is illegal, and conviction may not be used in a sentencing on a subsequent offense). In Commonwealth v. Charles, 339 Pa. Super. 284, 488 A.2d 1126 (1985) (citing Commonwealth v. Calvert, 463 Pa. 211, 344 A.2d 797 (1975), Gideon v. Wainwright, 372 U.S. 355, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) and Burgett, supra), this Court held likewise, that invalid convictions could not support enhancement of sentence on subsequent offenses. While some ambiguity has crept into the law as between prior arrests and convictions and their use in sentencing, the overwhelming weight of the law is that prior convictions must be established, as opposed to arrests, if any weight is to be given at sentencing. I have found no case which holds that a sentence may be enhanced or treated more severely upon consideration of arrests alone.

Only a conviction carries the weight which may result in a more serious sentence than would otherwise be the case. In the context of this case, a juvenile adjudication, in light of the expressed mandate of the legislature, is a consideration in sentencing. As such, it can not be construed as less than a conviction; it otherwise could not be given weight or "consideration" in sentencing.

In a similar fashion, the legislature, in a further exception to admission of the juvenile disposition of a person in a subsequent non juvenile proceeding, provided: Section 6354(b)(2) . . . [I]f relevant, where he has put his reputation or character in issue. In doing so, the credibility of the witness is being attacked with time honored rules of evidence as to what records are available for this purpose. Again, only if the juvenile disposition is construed to be a conviction for purposes of this section, may the section be given the intended legislative effect. Quoting from Jenkins, Pennsylvania Trial Evidence Handbook, section 17.4, this becomes clear:

[ 366 Pa. Super. Page 350]

The Juvenile Act does not seek to rehabilitate every juvenile who commits an unlawful act; rather, the Act's purpose is to "remove from children committing delinquent acts the consequences of criminal behavior, and to substitute therefor a program of supervision, care and rehabilitation." 42 Pa.C.S.A. § 6301(b)(2) (emphasis added). Since appellants' summary offenses were not delinquent acts within the meaning of the Juvenile Act, appellants had no right to the rehabilitative benefits offered under the Act, and the use of appellants' summary offenses to enhance the grading and sentencing of their subsequent crimes does not violate the purposes of the Act.

Further, appellants had no right to receive any particular type of treatment simply because they were juveniles when they committed their first offenses. Inclusion within, or exclusion from, the provisions of the Juvenile Act is a matter within the discretion of the legislature. Here, the legislature has made it very clear that individuals in appellants' positions are not eligible for consideration under the juvenile act . . .

We hold, therefore, that the fact that appellants were juveniles at the time of their first offenses does not preclude the use of the convictions for those offenses to enhance the grading and sentencing for appellants' current convictions.*fn14 (Emphasis added)

[ 366 Pa. Super. Page 352]

    in establishing the felonious act which is the basis for subsequent computation of sentence to a later crime. This Court held in Smith, supra, that, "The intention of the Legislature is clear in its adoption of the policy which not only allows but requires examination of a defendant's juvenile record in fashioning appropriate sentences." Id. at 181, 481 A.2d at 1366. There we also held that it was appropriate to apply the prior juvenile adjudication for felonious offenses in computing the prior record score.

The rules of construction require us to give total effect to the legislative intent, section 1921, supra. Since I would find there is no ambiguity in the statute and that the sentencing commission acted properly and within its authority, I would reject the considerable argument made by the majority that laboriously attempts to construe it otherwise. Even had there been ambiguity as to the meaning of "conviction" as compared to adjudication, pursuant to the application of matters under section 1921(c)(1-8),*fn2 there can be no doubt as to the legislative intent in granting the powers to the Sentencing Commission and its proper exercise of those powers. We have held that sentencing guidelines are constitutional in Commonwealth v. Kuphal, 347 Pa. Super. 572, 500 A.2d 1205 (1985). If the trial court and majority position had any validity whatsoever, it was nullified by the action of the legislature, when, by almost unanimous vote of both houses, upon mandatory review of the Sentencing Commission and its activities as required under the Sunset Law, the Commission was reinstated for a

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    period of 10 years. In it's 1985 Annual Report, the Commission reported as follows:

Sunset Review Process

During 1985 the Commission was scheduled for sunset review in accordance with the provisions of the Pennsylvania Sunset Act. This Act specifies procedures for reviewing agencies and determining whether they should be continued, altered or terminated. During Fiscal Year 1984-85 a sunset performance audit of the Commission was conducted by the Legislative Budget and Finance Committee. The Committee's final report recommended continuation of the Commission with several recommended minor changes. The report was turned over to the Senate Judiciary Committee for sunset review.

The Senate Judiciary Committee held public hearings on the Commission in October 1985 and released their report in January 1986. The report concluded that:

1) Termination of the Commission would harm the public welfare;

2) There is insufficient overlap of functions to warrant the elimination of the commission or transfer of its duties to another agency;

3) There is at present no more economical way of accomplishing the Commission's objectives;

4) The guidelines have been successful in addressing the need for more uniform and appropriate sentences;

5) The continuation of the Commission's functions would be in the public interest;

6) The Commission has encouraged and made continuous use of public input; and

7) There does not appear to exist a less restrictive alternative method of providing the same services to the public.

The Senate Judiciary Committee endorsed the continuation of the Commission with a few recommended changes. These recommendations formed the basis of Senate Bill 1343 of 1986 reestablishing the Commission for another

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    ten years. The bill was passed 47 to 1 in the Senate, 195 to 1 in the House (as amended) and 48 to 1 when it was returned to the Senate for concurrence. The bill was signed by the Governor as Act 41 of 1986 on April 30, reestablishing the Commission for another ten years effective May 1, 1986.

In reestablishing the Commission, the General Assembly made several changes to the Commission's legislative mandate: The Commission was reestablished as an agency of the General Assembly; the Commission was required to meet at least four times each year; the Commission's quorum requirement was reduced from nine members to seven members; the Commission was directed to establish a plan and timetable to collect and disseminate information relating to incapacitation, recidivism, deterrence and overall effectiveness of sentences imposed; and the Commission was given clear authority to monitor compliance with the guidelines and mandatory sentences and to require the completion and submission of forms promulgated by the Commission.

1985 Annual Report, The Pennsylvania Commission on Sentencing, p. 3. It must be presumed if the Commission had overstepped its authority in implementing the guidelines under consideration here, or if the legislative intent in implementing them had been misconstrued, the legislature would have required correction before reinstating the Commission and adopting the work of the Commission a second time with these matters included. We cannot presume these sections to be invalid.

The legislative intent is to strip away the cloak of juvenile immunity from the serious juvenile offender and legislation in the past session does just that, making the current discussion, in many respects, academic. In a bill (Act No. 165 of 1986) signed by Governor Thornburg on December 11, 1986 (effective in sixty (60) days from December 11), a new class of juvenile offenders is created, the "dangerous juvenile offender." The new law creates a statewide central repository for fingerprints, photographs and juvenile

[ 366 Pa. Super. Page 356]

    records to aid in arrest and prosecution of juvenile offenders. It authorizes public disclosure of police records and files relating to the new class of offenders, allows police to fingerprint and photograph any child aged ten or older charged with an act, if commited by an adult, that would be a felony; it repeals the Youthful Offender Act thus assuring that criminals aged 18-20 received the same minimum sentence mandated for adult criminals. In commenting on the need for the bill, Governor Thornburg quoted a study showing that in 1985 in Pennsylvania, 23 per cent of all people arrested for violent crimes were under the age of 18 and that 20 per cent of the juveniles apprehended committed 68 per cent of serious juvenile crimes.

Act 165 also specifically directs the Sentencing Commission to include juvenile adjudications of delinquency in the prior record score of the guidelines and "define[s] 'prior conviction' as any finding of guilt or adjudication of delinquency whether or not sentence has been imposed prior to the commission of the current offense." Pennsylvania Bulletin, Vol. 16, No. 51, Dec. 20, 1986, p. 4868. The comments in the Bulletin indicate the legislation was in direct response to the finding in this case in the court below. (Commonwealth v. Tilghman, January Term 1984, No. 2193, Court of Common Pleas, Philadelphia County). It is an extraordinary matter for the legislature to enact clarifying legislation on issues which have not been acted upon by the appellate courts, and when done under these circumstances, it can only mean it is responding to the lower court misconstruing its intent. The legislation also specifically equates "adjudication" with "conviction" and, therefore, the difficulty such an interpretation posed for the majority appears of little consequence to the legislature.

The Commission, through its Chairman, Honorable John O'Brien, states:

[I]t is the Commission's view that . . . the juvenile adjudication of delinquency guideline provisions have continued to apply as they were written in the Code, because no appellate court has overturned them. The Commission is

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    republishing all of these provisions, and will resubmit them to the General Assembly as a safeguard in case a court reaches a different interpretation.

Pennsylvania Bulletin, supra at 4868.

I would, therefore, find the trial court did in fact err in its revision of sentence to exclude appellee's juvenile adjudication from his prior record score.

With respect to appellant's second claim, that is, the court's failure to consider the totality of the circumstances in determining the penalty, a review of the record reveals the court did in fact take note of the factors which appellant would emphasize, but drew an inappropriate conclusion. I feel that given the increase in the prior record score, a consistent sentence within the agreed upon range would be four to twenty-three months total confinement, the penalty originally specified.*fn3,*fn4

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I would, therefore, vacate judgment of sentence and reinstate the sentencing order of December 13, 1984.

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