Appeal from the Judgment of Sentence of October 16, 1986 in the Court of Common Pleas of Chester County, Criminal Division, no. 1060-83.
William L. Howard, Malvern, for appellant.
Glenn E. Davis, Assistant District Attorney, West Chester, for Com., appellee.
Montemuro, Kelly and Cercone, JJ.
[ 367 Pa. Super. Page 334]
The question for decision in this appeal is whether the sentencing court correctly scored a prior foreign state conviction in calculating the prior record score of the appellant. We conclude that the court below did assign the correct prior record score to the appellant's out-of-state conviction and therefore affirm the judgment of sentence. The pertinent facts and our analysis follow.
Appellant was convicted of burglary,*fn1 attempted rape,*fn2
[ 367 Pa. Super. Page 335]
indecent assault*fn3 and simple assault*fn4 on May 23, 1985 following a jury trial. After denying appellant's post-verdict motions, the trial court sentenced appellant on October 16, 1986 to period of incarceration of 5-10 years for attempted rape and 2-4 years concurrently for burglary.*fn5 In calculating appellant's prior record score for purposes of sentencing, the trial court assessed two points for a previous conviction of burglary in Pennsylvania and two additional points for a prior conviction of attempted burglary in Colorado.*fn6 Based upon a total prior record score of four points, appellant was sentenced within the minimum ranges of the Sentencing Guidelines.*fn7 A Motion for Reconsideration and/or Modification of Sentence filed by appellant was denied by the sentencing court on January 2, 1987. This timely appeal followed.
On appeal, appellant avers that the sentence imposed was illegal, excessive and outside of the Sentencing Guidelines. Specifically, he asserts that the trial court improperly applied section 303.7(d) of the guidelines relating to out-of-state, federal, or former Pennsylvania offenses. Section 303.7(d) of the guidelines provides:
A prior out-of-state or Federal conviction or adjudication of delinquency, or a prior conviction or adjudication of delinquency under former Pennsylvania law, is scored as a conviction for the current equivalent Pennsylvania offense. When there is no current equivalent Pennsylvania offense, prior out-of-state or Federal convictions or adjudications of delinquency are scored as non-weapons misdemeanors. When there is no current equivalent Pennsylvania offense to a conviction or adjudication of delinquency under prior Pennsylvania law, apply subsection (h).
[ 367 Pa. Super. Page 336204]
Pa.Code § 303.7(d) (effective June 5, 1986). Since appellant was convicted on May 21, 1983, however, his prior record score was based upon the original version of section 303.7(d) which stated: "The scoring of prior out-of-state offenses is governed by application of Pennsylvania statutory offense classifications and definitions." Id. (effective July 22, 1982 to January 1, 1986). The Sentencing Commission has commented that this section was expanded to its present version in order "to provide greater clarity and precision" in calculating the prior record score. Pa.C. Sent. 2d (September 1, 1986) at 59. The Commission has further observed that the amendment to section 303.7(d) "did not change ...