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COMMONWEALTH PENNSYLVANIA v. KEVIN L. MYERS (01/21/88)

filed: January 21, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
KEVIN L. MYERS, APPELLANT



Appeal from the Order entered March 10, 1987 in the Court of Common Pleas of York County, Criminal Division, at No. 2209 CA 1985; 2284 CA 1985; 2285 CA 1985.

COUNSEL

Daniel F. Wolfson, York, for appellant.

Donald R. Lam, Assistant District Attorney, York, for Com., appellee.

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

Author: Hoffman

[ 370 Pa. Super. Page 327]

This is an appeal from the judgment of sentence for robbery. Appellant contends that the sentencing court erred in (1) including his prior juvenile adjudications of delinquency in calculating his prior record score without first making a finding on the record regarding the "nature of these adjudications"; and (2) failing to set forth adequate reasons on the record to justify the disparity between his sentence and that of his co-defendant. For the reasons that follow, we affirm the judgment of sentence.

[ 370 Pa. Super. Page 328]

Appellant entered a plea of guilty to four counts of robbery, two counts of theft, three counts of receiving stolen property, and one count of criminal attempt to commit robbery. He was sentenced to a forty-four-to-eighty-eight-month term of imprisonment for the robbery counts and the other charges merged for sentencing purposes. Under the Sentencing Guidelines, 204 Pa. Code 303.1-.9, reprinted following 42 Pa.C.S.A. § 9721, robbery, 18 Pa.C.S.A. § 3701(a)(1)(ii), (iii), carries an offense gravity score of seven. See 204 Pa. Code § 303.8. At the time of the instant offense, appellant's prior criminal record included juvenile adjudications for three counts of burglary. Based on that record, appellant was assigned a prior record score of six. See id. § 303.7. His sentence was within the mitigated range of the sentencing guidelines. See id. § 303.9.*fn1 Appellant filed a motion to modify his sentence, which 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

[ 370 Pa. Super. Page 329]

    objected to by the appellee, is a waivable procedural violation. Id., 367 Pa. Superior Ct. at 519-520, 533 A.2d at 138. Here, the Commonwealth has not objected to the Rule 2119(f) defect in appellant's brief. Accordingly, the Commonwealth has waived any objection based on the absence of such a statement. We must therefore proceed to examine each of appellant's sentencing claims and "determine, in [our] own discretion, whether there is a substantial issue requiring [us] to review the discretionary aspects of the sentence imposed by the trial court." Commonwealth v. Krum, supra.

Appellant first contends that the sentencing court applied the sentencing guidelines erroneously because it included prior juvenile adjudications of delinquency in calculating his prior record score without first making a finding regarding the nature of the adjudications.*fn3 In Commonwealth v. Tilghman, 366 Pa. Superior Ct. 328, 531 A.2d 441 (1987), (en banc), our Court recently concluded that this type of claim presents a substantial question that the sentence imposed is inappropriate. See id., 366 Pa. Superior Ct. at 332 & n. 2, 531 A.2d at 443-44 & n. 2 (substantial question exists if, inter alia, it appears that sentencing court erroneously applied sentencing guidelines). See also 42 Pa.C.S.A. § 9781(c)(1). Accordingly, we grant the petition for allowance of appeal as to this issue and turn to the merits of the claim.

In computing a defendant's prior record score, the Sentencing Guidelines direct a sentencing court to score, inter alia, "[a]ll prior juvenile adjudications of delinquency where there was an express finding that the adjudication was based on the commission of a felony or one of the weapons misdemeanors listed in subsection (a)(3) where the adjudication occurred on or after the defendant's 14th birthday." 204 Pa. ...


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