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filed: July 5, 1988.


Appeal from the judgment of sentence of February 3, 1987 in the Court of Common Pleas of Philadelphia County, Criminal, No. 86-06-2018.


Leonard Sosnov, Assistant Public Defender, Philadelphia, for appellant.

Hugh J. Burns, Assistant District Attorney, Philadelphia, for Com., appellee.

Brosky, Wieand, Mcewen, Olszewski, Beck, Tamilia, Kelly, Popovich and Johnson, JJ. Kelly, J., files a concurring opinion.

Author: Beck

[ 375 Pa. Super. Page 421]

This is an appeal by Glenn Smith from a judgment of sentence imposed on February 3, 1987 by the Court of Common Pleas of Philadelphia County. This case involves an alleged conflict between the sentencing provisions of the Youth Offenders Act (which was repealed by the Pennsylvania legislature effective February 9, 1987)*fn1 and the 1982 Sentencing Guidelines (which were invalidated by the Pennsylvania Supreme Court in a decision filed on October 7,

[ 375 Pa. Super. Page 4221987]

).*fn2 We find that the trial judge did not err when he first calculated the sentence that appellant would receive under the 1982 Sentencing Guidelines and then departed from the guidelines and sentenced appellant in accordance with the Youthful Offenders Act. We therefore affirm the judgment of sentence.

On June 1, 1986, appellant Smith approached a woman who was walking on Wyoming Avenue in Philadelphia and forced her to hand over her money. He was apprehended by the police, and on October 3, 1986, he pleaded guilty to robbery as a felony of the second degree. A sentencing hearing was then scheduled for February 3, 1987 before the Honorable Bernard J. Avellino.

At the sentencing hearing, the trial judge heard argument on the correct application of the 1982 Sentencing Guidelines to appellant's case. Both defense counsel and the Commonwealth agreed that under the guidelines the offense gravity score for Smith's crime was "5". However, the parties disagreed on the value which should be assigned for Smith's prior record score. The Commonwealth maintained that Smith had a prior record score of "4" since he had been adjudicated delinquent for committing two robberies as a juvenile. Defense counsel insisted that juvenile adjudications could not be counted in determining the prior record score, and that therefore Smith had a prior record score of "0".

[ 375 Pa. Super. Page 423]

The trial judge accepted the Commonwealth's view that Smith should be assigned an offense gravity score of "5" and a prior record score of "4". He then addressed the defendant on the record:

[T]here are a number of factors I have to consider before I sentence anyone.

I have to consider the sentencing guidelines.

The sentencing guidelines alone for you say that the minimum range, the minimum range of confinement, that is not the aggravated nor mitigated, the minimum range I ought to put you in jail for [is] at least eighteen to twenty seven months.

N.T. at 16.*fn3

Upon further reflection, however, the trial judge decided that the minimum sentencing range suggested by the guidelines was not appropriate. The judge reviewed the presentencing report which stressed that Smith would benefit from ". . . a firm consistent program of reward and punishment in a very structured and controlled setting." N.T. at 17. In light of this recommendation, the judge concluded that the rehabilitative needs of the defendant could best be met if he were confined in the state facility for youthful offenders at Camp Hill. At the time of sentencing, the Youth Offenders Act provided that in order to be eligible to be sent to Camp Hill, a defendant must receive a prison sentence which does not specify a minimum term of confinement.*fn4 Accordingly, the trial court deviated from the guidelines

[ 375 Pa. Super. Page 424]

    and imposed a sentence to be served at Camp Hill with no minimum limit and with a maximum limit of six years imprisonment.

Appellant filed a timely motion to modify sentence in which he argued that the trial court had miscalculated his prior record score by adding points for his juvenile adjudications. This motion was denied on February 9, 1987 -- the same day on which the repeal of the Youth Offenders Act went into effect.

Appellant then filed a timely notice of appeal with this court. In his appellate brief, appellant again argued that the trial court had erred by taking his juvenile adjudications into account. After initial consideration by a three judge panel of the court, this case was certified for en banc review. Following reargument before the court en banc, appellant and the Commonwealth were granted leave to file supplemental briefs addressing the legality of a prison sentence without a minimum term of incarceration.

In its present posture, this case presents two questions for review. First, did the trial judge have authority to impose a prison sentence with no minimum term after initially considering the minimum sentence recommended by the guidelines? Second, did the trial judge properly consider appellant's juvenile adjudications when computing the minimum sentence recommended by the guidelines? We conclude that appellant is not entitled to a new sentencing hearing.

[ 375 Pa. Super. Page 425]


Appellant asserts that the trial judge erred by failing to provide for a minimum sentence. His principal argument may be summarized as follows.

Appellant was sentenced under the Youth Offenders Act which prohibits the imposition of a minimum sentence. See 61 Pa.Stat.Ann. §§ 484, 485 (cited at n. 4, supra). However, appellant's case is controlled by the 1982 Sentencing Guidelines. Appellant pleaded guilty to committing a crime on June 1, 1986; the 1982 Sentencing Guidelines took effect on July 22, 1982 and applied to all crimes committed on or after that date. 204 Pa. Code § 303.1(d). Therefore, the judge was obliged to follow the 1982 Sentencing Guidelines when determining appellant's punishment.

The guidelines established ranges of minimum sentences for criminal offenses. See 204 Pa. Code § 303.9(a) ("All guideline sentence ranges are months of minimum confinement . . ."). The Youth Offenders Act, which prohibits a minimum sentence, and the 1982 Sentencing Guidelines, which authorize a minimum sentence, are in conflict. In order to resolve this conflict, the trial court should simply have followed the guidelines -- the more recently adopted of the two competing sentencing schemes.*fn5 Thus, the 1982 Sentencing Guidelines displaced the Youth Offenders Act, and the special indeterminate sentence*fn6 provided by the Youth Offenders Act was not a valid sentencing alternative.


We find that the argument outlined above is not meritorious. However, before reaching the merits of appellant's claim, a few words about ...

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