“[a]lleging that [a] sentence [ ] improperly imposed in the aggravate[ed] range, will not, by itself, raise a substantial question”
How later courts described this case
- “[a]lleging that [a] sentence [ ] improperly imposed in the aggravate[ed] range, will not, by itself, raise a substantial question”
Written by the judges who cited it.
The opinion
HOFFMAN, Judge,
concurring and dissenting:
I concur in the majority’s disposition of the first, third, and fourth issues. I dissent, however, from its resolution of the second issue: I would hold that the lower court erred in employing a prior record score that included appellant’s robbery conviction in Canada. Accordingly, I would vacate *289 the judgment of sentence and remand the case for resentencing.
Appellant contends that the lower court enhanced his sentence by relying on a prior record score that improperly reflected appellant’s robbery conviction in a foreign jurisdiction, namely Canada. 1 In selecting the sentence to be imposed on a criminal defendant, a court “shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). One of the factors that a court must consider in fashioning the sentence is the prior record of the defendant. See 204 Pa.Code §§ 303.1-303.9, reprinted following 42 Pa.C.S.A. § 9721.
Under the Sentencing Guidelines, a defendant’s prior record is reflected in a numerical score, which is used to enhance the ranges of sentences applicable to a given offense. See id. §§ 303.2, 303.3, 303.7 to 303.9. A prior record score is derived by assigning points to certain previous convictions and adjudications of delinquency. See id. §§ 303.7, 303.8. Pursuant to the Sentencing Guidelines, a prior record score will include points for previous convictions in Pennsylvania as well as for out-of-state, federal, or former Pennsylvania offenses:
A prior out-of-state or Federal conviction or adjudication of delinquency under former Pennsylvania law, is scored as a conviction for the current Pennsylvania offense. When there is no current equivalent Pennsylvania offense, prior out-of-state or Federal convictions or adjudications of delinquency are scored as non-weapons misdemeanors.
Id. § 303.8(d).
In this case, the underlying issue is whether the term “out-of-state convictions” should be construed to encompass *290 convictions occurring in foreign countries, in addition to those occurring in any of the other forty-nine states. It is axiomatic that penal laws must be strictly construed, see 1 Pa.C.S.A. § 1926, in favor of the defendant. See Commonwealth v. Darush, 256 Pa.Superior Ct. 344, 348, 389 A.2d 1156, 1158 (1978); Commonwealth v. Cunningham, 248 Pa.Superior Ct. 219, 222, 375 A.2d 66, 67 (1977). Moreover, any ambiguity concerning the ambit of a penal statute must be resolved against the Commonwealth. See Commonwealth v. Cluck, 252 Pa.Superior Ct. 228, 238, 381 A.2d 472, 477 (1977); Commonwealth v. Teada, 235 Pa.Superior Ct. 438, 444, 344 A.2d 682, 684 (1975) (allocatur denied). Importantly, the term “penal laws” covers a wide array of laws. As defined, for example, in the Pennsylvania Rules of Criminal Procedure, penal laws include
all statutes and embodiments of the common law which establish, create or define crimes or offenses including any ordinances which may provide for imprisonment upon conviction or upon failure to pay a fine or penalty.
Pa.R.Crim.P. 3(n).
Although the Rules’ definition of “penal laws” does not specifically list the Sentencing Guidelines, it is ‘plate glass clear’ that they fall under the rubric of penal laws. See Commonwealth v. Samuels, 516 Pa. 300, 302 , 532 A.2d 404, 405 (1987). Ambiguities in the Guidelines, therefore, should be resolved in favor of the defendant. See Commonwealth v. Cluck, supra; Commonwealth v. Teada, supra. Thus, I would hold that the term “out-of-state convictions” as used in the Guidelines should be construed to include only convictions rendered by courts in the other forty-nine states of the United States and to exclude convictions occurring in foreign countries. 2 For that reason, I would vacate the judgment of sentence and remand for resentencing.
. I note that appellant has not challenged the constitutionality of the sentencing guidelines. Accordingly, Commonwealth v. Sessoms, 516 Pa. 365 , 532 A.2d 775 (1987) does not apply to this issue.
. In addition, I would disagree with the majority’s conclusion that we can take judicial notice that the criminal procedures used in Canada are similar to the procedural safeguards guaranteed by the United States Constitution.