Com. v. Eyster

• Court: Pennsylvania Superior Court
• Writing for the Court: Before CIRILLO; TAMILIA
• Citation: Com. v. Eyster, 585 A.2d 1027, 401 Pa.Super. 477 (Pa. Super. Ct. 1991)
• Decision Date: 18 January 1991
• Parties: COMMONWEALTH of Pennsylvania v. Michael E. EYSTER, Appellant (Three Cases). COMMONWEALTH of Pennsylvania v. Murril LARSEN, Appellant.

Page 1027

585 A.2d 1027

401 Pa.Super. 477

COMMONWEALTH of Pennsylvania v. Michael E. EYSTER, Appellant (Three Cases).

COMMONWEALTH of Pennsylvania v. Murril LARSEN, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 10, 1990.

Filed Jan. 18, 1991.

[401 Pa.Super. 479] Craig P. Miller, Lock Haven, for Michael E. Eyster.

Peter Rosalsky, Public Defender, Philadelphia, for Murril Larsen.

Merritt E. McKnight, Dist. Atty., Lock Haven, Hugh J. Burns, Philadelphia, Asst. Dist. Atty., for Com.

Stuart B. Suss, Asst. Dist. Atty., Lock Haven, amicus curiae in Nos. 415, 416 and 417.

Before CIRILLO, President Judge, and CAVANAUGH, ROWLEY, WIEAND, McEWEN, OLSZEWSKI, DEL SOLE, BECK and TAMILIA, JJ.

TAMILIA, Judge:

These appeals are taken from judgments of sentence and are together before the Court en banc for determination of their common issue: the proper interpretation and application of the term "previously convicted," as defined in 42 Pa.C.S. § 2154(a)(2), in determining a defendant's prior record score for sentencing purposes. ¹ These cases present an issue of first impression under the new sentencing guidelines, 204 Pa.Code § 303.1 et seq., and the guidelines' enabling statute, 42 Pa.C.S. § 2151 et seq. As we find the appearance of a substantial question presented by appellants as to this issue, this Court grants allowance of appeal from the discretionary aspects of the sentences imposed upon appellants. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); 42 Pa.C.S. § 9781(b).

As an initial matter, however, before we may address the central issue of these appeals, we must first deal with the Commonwealth's contention that appellant Murrill Larsen's claim as to the discretionary aspects of sentencing has been waived for failure to raise the claim in a motion for reconsideration of sentence, as required by Pa.R.Crim.P. 1410.

Our Supreme Court in Commonwealth v. Tomasso, 506 Pa. 344, 485 A.2d 395 (1984), relying on an earlier decision in Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978), held a discretionary sentencing issue is preserved for appellate review if raised either at the time of sentencing or in a motion to modify sentence. As neither Walls nor Tomasso have been overruled, and as appellant Larsen raised the issue now under review at the sentencing hearing, we find his claim has not been waived.

Turning now to the cases before us, a brief factual history of each case will expedite analysis of the issue as it relates to the respective cases.

COMMONWEALTH v. EYSTER

Appellant Michael Eyster, charged with three separate sales of controlled substances, the first two for sale of cocaine and the third for sale of marijuana, entered negotiated pleas of guilty to all three offenses on March 3, 1989 and was sentenced on June 21, 1989. Appellant was sentenced to a term of three (3) to twelve (12) months imprisonment on the first offense, a consecutive sentence of nine (9) to thirty-six (36) months on the second cocaine offense and a consecutive sentence of six (6) to twelve (12) months for sale of marijuana. The trial court determined each of the three offenses stemmed from a separate transaction, and, therefore, determined the three convictions must be "stacked" under sections 303.6 and 303.7 of the sentencing guidelines. Thus, although sentencing for all three offenses occurred on the same day, the court attached a prior record score of zero to the first offense, resulting in a prior record score of two on the second offense, both convictions resulting in a prior record score of four on the third offense. We are presented, then, with appellant's claim that the court erred in utilizing earlier convictions on the same day to enhance the prior record score, where the prior convictions did not precede the commission of the offense upon which sentence was currently being imposed.

COMMONWEALTH v. LARSEN

Appellant Murrill Larsen was convicted on July 21, 1989 of unauthorized use of an automobile and receiving stolen property. Appellant was sentenced to a term of one and one-half (1 1/2) to three (3) years imprisonment, based in part upon the trial court's consideration of two convictions for crimes which were committed before commission of the instant offenses, but for which conviction did not occur prior to commission of the instant offenses. Using the two earlier charges, the trial court adopted a prior record score of four and as in Eyster, supra, appellant claims the sentencing court erred under the applicable provisions of the sentencing guidelines and the sentencing code, which allow consideration of prior convictions in computing a prior record score only if both the conduct constituting the offense and the adjudication of guilt on that offense occurred prior to the commission of the later offense. In this case, while the commission of the other crimes was prior in time to commission of the current offense, conviction on the prior charges occurred subsequent to commission on the current charge.

DISCUSSION EYSTER

On appeal, Eyster argues the three drug sales had, in fact, been part of a single transaction mandating computation of the prior record score only for the most serious offense under section 303.6. This turns on whether amendments to the sentencing code have changed the law and its interpretation as was pronounced by this Court in Commonwealth v. Mourar, 349 Pa.Super. 583, 504 A.2d 197 (1986) (en banc), and Commonwealth v. Wolfe, 349 Pa.Super. 415, 503 A.2d 435 (1986).

The sentencing commission, in its comments, has taken the view that the legislature, in amending the language of 42 Pa.C.S. § 2154 to include the definition of "previously convicted" to supersede Mourar and Wolfe, expressed an intent to permit the use of any earlier committed offenses to increase the prior record score, so long as conviction on that offense occurred prior to commission of the current offense. It goes on to state it is not necessary that a finding of guilt on the prior sentence occur before the current offense is sentenced and not necessarily before the commission of the current offense or verdict or plea on the current offense. This latter comment is confusing and contradictory to the wording of the statute infra.

As applied to Eyster, guilty pleas were entered on two offenses of delivery of cocaine, which occurred on April 26, 1988 and October 4, 1988, and to one count of delivery of marijuana, which occurred on October 11, 1988. Eyster had no prior convictions and, in a plea negotiated in consideration of his cooperation with the Commonwealth, he was promised the lowest minimum sentence authorized under the mitigated range of the guidelines. The trial court determined the sentencing guidelines require that the earlier offenses be utilized in computing the prior record score to be applied to the later offenses. Thus the April 26th offense carried a prior record score of zero (0), the April 26th conviction becoming a prior record score of two (2) for the October 4th count, the two earlier convictions, therefore, resulting in a prior record score of four (4) which was applied to the October 11th charge.

It is necessary that we review the amendment to the sentencing code, as promulgated by the legislature, to determine if the interpretation applied to the guidelines was correct. In making this determination, it is appropriate to consider the precipitating factors leading to the legislative changes and to determine how those provisions would, in fact, be modified.

The changes worked by the legislation are contained in 42 Pa.C.S. § 2154. The prior statutory provision read, in pertinent part, as follows:

§ 2154. 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 sentence for felonies and misdemeanors committed by a defendant. The guidelines shall:

. . . . .

(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.

(Emphasis added.)

Pursuant to Mourar and Wolfe, supra, this Court held a defendant must have been sentenced for a prior crime before the current crime was committed in order for the earlier crime to qualify for enhancement of a prior record score. This was determined after a review of history of recidivist legislation and case law in this state. Also, since the Sentencing Commission was empowered to enact guidelines to implement the legislation, this Court reviewed and applied those guidelines in deciding Mourar and Wolfe. Decisive in that respect was the interpretation given to prior conviction by the Sentencing Commission. At that time, the guidelines defined prior conviction as follows:

§ 303.7(g) Prior Conviction. A prior conviction is defined as a case in which a verdict of guilty has been entered in the record and sentence has been imposed for an offense which occurred prior to the date of the current offense, notwithstanding any appeal has been taken on the offense.

Based on simple logic and clarity of construction, the only reasonable conclusion we could reach was that the prior conviction and sentence must have preceded commission of the current offense in order to be included in prior record score calculations. Wolfe, supra.

The legislature, in response to Wolfe and Commonwealth v. Tilghman, 366 Pa.Super 328, 531 A.2d 441 (1987), enacted amendatory legislation to clarify its intent as to its meaning of prior conviction (Wolfe ) and prior juvenile offense (Tilghman ), which brings us to the current cases and issue before us.

The legislation, pursuant to which the current guidelines are in effect, 42 Pa.C.S. § 2154, reads as follows:

§ 2154. Adoption of guidelines for sentencing

(a) General rule.--The commission shall adopt guidelines for sentencing within the limits established by law which...