Commonwealth v. Mills ( 1985 )

WIEAND, Judge:

Stephen Mills was tried by jury and was found guilty of burglary. It was his eighth conviction for the same offense. The trial judge, the Honorable James D. McCrudden, deferred sentencing pending receipt of a presentence investigation and a psychiatric evaluation. Thereafter, Mills was sentenced to serve a term of imprisonment for not less than ten nor more than twenty years. A petition for reconsideration was denied, and Mills appealed. He contends that the sentence exceeded that recommended by the sentencing guidelines, as set forth in 204 Pennsylvania Code, Chapter 303, without adequate reason. We disagree and affirm the judgment of sentence.

Appellant and the Commonwealth are agreed that the gravity score for appellant’s offense is six; his burglary was committed in a structure adopted for overnight accommodations in which no person was present at the time of the offense. Two additional points are to be added for each prior offense. 204 Pennsylvania Code, Chapter 303.-7(b)(2)(H). The maximum number of points for prior convictions, however, is six.¹ 204 Pennsylvania Code, Chapter 303.7(h). For a defendant with an offense gravity score of six and a prior record score of six, the guidelines recommend an aggravated minimum sentence of between 49 and 61 months and a mitigated minimum sentence of between 25 and 33 months.

Appellant concedes, as he must, that a sentencing court may deviate from the sentencing guidelines if it provides a contemporaneous written statement of its reasons for doing so. The adequacy of the court’s reasons, of course, is subject to review on appeal. Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984). In the instant case the sentencing court did provide a contemporaneous statement of reasons for imposing a sentence in excess of that recommended by the guidelines. Appellant argues, however, that the court’s reasons were inadequate. He contends that, in reality, the only reason given by the sentencing court was that appellant had had seven prior convictions for burglary. This, he argues, demonstrated an erroneous application of the guidelines and an unreasonable departure therefrom.

We reject appellant’s argument. The reasons given by the sentencing court for imposing the maximum sentence authorized for burglary entailed a great deal more than the fact of seven prior convictions for burglary. The court explained:

Mr. Mills, I have considered the presentence report, the psychiatric evaluation. I know what the guidelines suggest in this.

But I think with your extensive record for burglaries and the fact that you just served a fairly severe sentence for burglary, and even after being released by the authorities, and while still on parole for that very offense of burglary, you go right ahead and burglarize another house.

Probation hasn’t helped. Even lengthy incarceration hasn’t helped. You have complete disregard for people who own property. You don’t hesitate for one minute to violate that in their homes. I think you have to be incarcerated and incarcerated for the maximum period of time.

I’m imposing a sentence of 10 to 20 years.

Included in this statement, as the Commonwealth has argued, can be discerned the following reasons for imposing a sentence greater than that recommended by the sentencing guidelines. First, appellant was a repeat offender, having accumulated a record of seven prior convictions for the same offense. Second, all prior attempts to rehabilitate Mills had been unsuccessful. Third, Mills had been on parole when he committed the offense for which he was then being sentenced. Fourth, because Mills had established a pattern of disrespect for the homes and property of other persons, he had become a threat to the public. Finally, on the occasion of the sentence for the seventh offense, Mills had previously received a sentence of imprisonment for not less than three nor more than ten years. These reasons were adequate to support the ten to twenty year sentence imposed by the court.

We also disagree with appellant’s contention that irrespective of the number of prior convictions, a burglar can receive only that sentence prescribed for a three time offender.² To read the guidelines as placing a cap on the sentence to be imposed upon a career criminal is to encourage absurd results. In the first place, such an interpretation will for all practical purposes reduce the maximum sentence authorized by statute for the crime of burglary. A burglar who has seven, or ten, or twenty prior convictions for burglary will have to be sentenced as though he had only three prior convictions. This, we conclude, was not what the legislature intended. Secondly, it is difficult to perceive any reason more compelling for imposing a sentence in excess of that recommended by the guidelines than the fact of convictions for repetitive offenses committed even after release on parole from a lengthy sentence of incarceration. What, it may well be asked, is more persuasive that a career criminal has become a serious threat to society than the lengthy record which he has complied while refusing to be rehabilitated? The guidelines do not establish mandatory sentences; they are recommendations only. Where societal protection commands a lengthier sentence, the guidelines do not stand as a bar.

In the instant case, the trial court sagely recognized that it was sentencing a career criminal who had become a menace to society. It was for this reason that the court imposed a sentence of incarceration for the maximum term allowed by the legislature.

The judgment of sentence is affirmed.

CAVANAUGH, J., files a dissenting opinion.

1 . A prior record score of six equates with three prior convictions for burglary.

2 . The opinion of this Court in Commonwealth v. Drumgoole, 341 Pa.Super. 468, 491 A.2d 1352 (1985), does not command a different result. In that case, the sentencing court failed to impose the minimum sentence recommended by the sentencing guidelines and gave as its reason the defendant's lack of a prior record. In remanding, the Superior Court held that this was error because the defendant, in fact, did have a prior record. By way of dictum, the Court observed that an accused’s lack of a prior record had already been considered by the sentencing commission in determining an appropriate sentence for a first time offender. Every first time offender started with a prior record score of zero, the Court reasoned, and an attempt by a sentencing court to reduce it below zero merely because of the absence of prior convictions would be improper.

The present case is different. It presents a factual pattern which was never considered by the Court in Drumgoole. Here, the sentencing court was sentencing Stephen Mills for an eighth conviction for burglary. This was a record far in excess of the record for which the sentencing commission deemed appropriate a prior record score of six. A court is not required to follow the guidelines Where, as here, the defendant’s prior record permits a court to infer that he is an incurable recidivist, that prior rehabilitative efforts have been unsuccessful, and that the defendant has become a threat to law-abiding citizens. Drumgoole does not hold otherwise.