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COMMONWEALTH PENNSYLVANIA v. CLARENCE LYNN BILLETT (01/13/88)

filed: January 13, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
CLARENCE LYNN BILLETT, APPELLANT



Appeal from the Judgment of Sentence of September 25, 1985 in the Court of Common Pleas of Mercer County, Criminal Division, at No. 139 Criminal, 1985.

COUNSEL

Lorinda L. Hinch, Assistant Public Defender, Mercer, for appellant.

Samuel J. Orr, IV, District Attorney, Mercer, for Com., appellee.

Cirillo, President Judge, and Johnson and Hoffman, JJ. Cirillo, President Judge, files a dissenting opinion.

Author: Hoffman

[ 370 Pa. Super. Page 126]

This is an appeal from the judgment of sentence for receiving stolen property. Appellant contends that (1) the sentencing court erred in including a prior juvenile adjudication of delinquency in its computation of his prior record score for sentencing purposes, and (2) his sentence was excessive. For the reasons that follow, we disallow the appeal in part, and affirm the judgment of sentence.

[ 370 Pa. Super. Page 127]

Appellant entered a plea of guilty to one count of receiving stolen property, 18 Pa.C.S.A. § 3925, a felony of the third degree. Under the Sentencing Guidelines, 204 Pa.Code §§ 303.1-.9, reprinted following 42 Pa.C.S.A. § 9721, this offense carries an offense gravity score of five. See 204 Pa.Code § 303.8. At the time of the instant offense, appellant's prior criminal record included convictions for three felonies and one juvenile adjudication of delinquency for assault with intent to rape. Based on that record, appellant was assigned a prior record score of four. N.T. September 25, 1985 at 9. See 204 Pa.Code § 303.7. He was sentenced to a term of two-to-five-years incarceration, a sentence within the minimum range of the Sentencing Guidelines for an offense gravity score of five and a prior record score of four. See 204 Pa.Code § 303.9(b).*fn1 His motion to modify his sentence was denied, and this appeal followed.

Both contentions raised in this appeal concern discretionary aspects of sentencing.*fn2 The requirements of Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) therefore apply. Appellant has failed to include in his brief "a concise statement of the reasons relied upon for allowance of appeal" as required by Rule 2119(f) and Tuladziecki. In Commonwealth v. Krum, 367 Pa. Superior Ct. 511, 533 A.2d 134 (1987), however, this Court, sitting en banc, recently held that an appellant's failure to comply with Rule 2119(f) and Tuladziecki, if not objected to by the appellee, is a waivable procedural violation.

[ 370 Pa. Super. Page 128]

"results only from legislative delegation, the limits of such power must be strictly construed." Brief for Appellant at 8. Accordingly, because § 2154(2) does not expressly direct the Commission to specify a sentencing range of increased severity for defendants who were previously adjudicated delinquent, appellant maintains that 204 Pa.Code § 303.7(b) contravenes the legislative authorization contained in § 2154(2) and is thus invalid. We must disagree.

In Commonwealth v. Tilghman, supra, our Court was faced with a similar question regarding the interpretation of 42 Pa.C.S.A. § 2154(2). In Tilghman, appellant, the Commonwealth, argued 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." 366 Pa. Superior Ct. at 335, 531 A.2d at 445. The Tilghman court rejected the Commonwealth's argument, holding that "We . . . 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." Id., 366 Pa. Superior Ct. at 338, 531 A.2d at 446. Instead, the court accepted the exact argument that appellant makes here:

     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 ...


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