decided: October 15, 1987.
COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
DALE SAMUELS, APPELLEE
Appeal from the Order of the Superior Court of Pennsylvania, No. 02657 Philadelphia 1984, dated April 22, 1986, Reversing the Judgment of Sentence of the Court of Common Pleas of Bucks County, Pennsylvania, Criminal Division, No. 3261 of 1983, dated August 29, 1984.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., filed a dissenting opinion in which Nix, C.j., joined.
[ 516 Pa. Page 301]
Dale Samuels was found guilty by a Bucks County jury of statutory rape, indecent assault, indecent exposure, and corruption of a minor. The court sentenced him to a term of imprisonment from 38 months to 15 years. Superior Court affirmed the guilty verdicts but vacated the judgment of sentence and remanded for resentencing, 354 Pa. Super. 128, 511 S.2d 221. The court held that the Pennsylvania Commission on Sentencing exceeded its statutory grant of authority by adopting guidelines that increased the severity of sentences on the basis of prior convictions for misdemeanors not involving deadly weapons. We reverse.
[ 516 Pa. Page 302]
As an aid in computing the sentence to be imposed for the four offenses,*fn1 the court used a Guideline Sentence Form published by the Commission. The court calculated a prior record score of 5 based on Samuels's history of one burglary conviction (2 points), one misdemeanor involving a weapon (1 point), and four or more other misdemeanors (2 points). According to the Guidelines, the statutory rape charge, a second degree felony, rated 5 on the offense gravity scale. Such an offense, with a prior record score of 5, carried recommended prison terms of 16 to 21 months in the mitigated range, 21 to 30 months in the "minimum" range, and 30-38 months in the aggravated range. The corruption charge, a first degree misdemeanor with an offense gravity score of 3, carried guideline suggested sentences of nonconfinement, 0 to twelve months, and 12 to 18 months in the mitigated, "minimum", and aggravated ranges respectively, the prior record score not being applied again to increase the ranges.
Samuels raised a number of challenges to his convictions in Superior Court, all of which were rejected.*fn2 He also raised several challenges to his sentence, that, with one exception, the court also rejected. The statutory language in question reads 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
[ 516 Pa. Page 303]
sentence for felonies and misdemeanors committed by a defendant. The guidelines shall:
(1) Specify the range of sentences applicable to crimes of a given degree of 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.
(3) Prescribe variations from the range of sentences applicable on account of aggravating or mitigating circumstances.
42 Pa.C.S. § 2154.
Superior Court began its analysis with the premise that the Commission's enabling statute, of which this section is a part, is a penal provision and therefore subject to strict construction. Given this perspective, the court determined that paragraph (2) stated the only area in which the Commission was authorized to provide increased severity on account of prior convictions.
The Commonwealth argues that this portion of the statute, though a mandatory direction, is not an exclusive direction; that is, the legislature insisted that the Commission treat a person with prior weapons misdemeanors more severely, but left it to the Commission, in the exercise of its broad grant of general authority, to determine what other conditions, including non-weapons misdemeanors, might also justify increased severity.
This argument, though simple, is highly persuasive. We need not pass upon the Superior Court's questionable judgment that the enabling statute (as distinguished from the actual guidelines produced by the Commission) is subject to strict construction as a penal provision. Notwithstanding that court's determination that the meaning it attributed to § 2154(2) was "plate glass clear", we are convinced that whether the statute is "strictly" or "liberally" construed, it in no way follows that the mandatory term "shall" is also an exclusive. The General Assembly gave the Commission a broad grant of authority to analyze the impact that
[ 516 Pa. Page 304]
various factors should have on the sentencing decision and to promulgate a set of recommended sentences in accordance with its analysis. Certain factors (prior felonies, prior offenses of any grade involving deadly weapons) were so important to the legislature that it required the Commission to provide for them. This statement of an affirmative duty of inclusion of certain items carries no prohibition, express or implied, on the authority to include others.*fn3
The order of the Superior Court, insofar as it vacates the order of the trial court and remands for resentencing, is vacated and the judgment of sentence is reinstated.*fn4 In all other respects the order is affirmed.
HUTCHINSON, Justice, dissenting.
I dissent and would dismiss this appeal as improvidently granted. The constitutionality of the Sentencing Guidelines has already been decided by this Court in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987), and is arguably not properly preserved on this record. Considering the holding in Sessoms, I see no point in our deciding the issue of whether Superior Court correctly held the statute did not
[ 516 Pa. Page 305]
authorize the Commission to consider a particular unconstitutional guideline.