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06/02/97 COMMONWEALTH PENNSYLVANIA v. KEVIN ADAMS

June 2, 1997

COMMONWEALTH OF PENNSYLVANIA
v.
KEVIN ADAMS, APPELLANT



Appeal from the Judgment of Sentence entered July 31, 1995 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 9408-0817. Before BRINKLEY, J.

Before: Del Sole, Schiller And Montemuro, JJ. Opinion BY Del Sole, J.

The opinion of the court was delivered by: Del Sole

OPINION BY DEL SOLE, J.:

FILED JUN 02 1997

Appellant Kevin Adams was charged with receiving stolen property and unauthorized use of an automobile. At trial, Appellant fled the courtroom after the jury was selected but before testimony was presented. Consequently, his trial was conducted in absentia. Appellant was found guilty of the above charges and received a sentence of three to six years imprisonment for receiving stolen property and a consecutive sentence of one to two years imprisonment for unauthorized use of an automobile. His subsequent motion to vacate and reconsider sentence was denied. This appeal followed.

First, Appellant asserts that the lower court misapplied and miscalculated the sentencing guidelines. This court has held that where an issue on appeal is the improper calculation of the prior record score or offense gravity score, a direct appeal lies because these are legal questions, and discretionary review is not appropriate. Commonwealth v. Johnson, 421 Pa. Super. 433, 618 A.2d 415 (1992). Appellant contends that the trial court failed to acknowledge and correctly complete the calculation of the sentencing ranges required by the guidelines before issuing sentence.

The sentencing code mandates that sentencing courts consider the guidelines before sentencing. However, if the court sentences within the guidelines' suggested ranges, there is no need for the sentencing court to otherwise manifest on the record that it considered the guidelines. In such a case, consideration of the guidelines is presumed to be evidenced by the actual sentence imposed. Commonwealth v. Chesson, 353 Pa. Super. 255, 509 A.2d 875 (1986).

The record reveals that for Appellant's receiving stolen property conviction, he had an offense gravity score of five and a prior record score of six. For such a score, the guidelines suggest the following minimum sentence:

Aggravated range: 36-45 months;

Standard range: 24-36 months; and

Mitigated range: 18-24 months.

Pa.C.Sent.3d/R (August 9, 1991) § 303.9. *fn1 Appellant's minimum sentence of thirty six months is within the recommended ranges. Thus, we presume that the court properly considered the guidelines in formulating Appellant's sentence for receiving stolen property. Therefore, Appellant's argument that the trial court incorrectly considered the sentencing guidelines in calculating his sentence for receiving stolen property is meritless.

Regarding his sentence for the unauthorized use of an automobile conviction, Appellant claims that the court used an incorrect prior record score in calculating his sentence. Specifically, he argues that the conviction of unauthorized use arose out of the same transaction as the receiving stolen property conviction and, thus, the appropriate prior record score ...


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