Commonwealth v. Washington

CAVANAUGH, Judge:

Appellant, Allen G. Washington, pled nolo contendré to a charge of retail theft and upon conviction was sentenced to imprisonment for a period of not less than seven nor more than fourteen months. The theft involved meat valued at $27.00 which Washington attempted to take from a market without payment. His appeal attacks the sentence as excessive and also asserts that the court improperly used misdemeanors not involving weapons in determining the prior record score for sentencing purposes. The trial court, in fact, used prior misdemeanor convictions in adding two points to the prior record score for sentencing guideline purposes. In Commonwealth v. Samuels, 354 Pa.Super. 128, 511 A.2d 221 (1986), a panel of this court held that “ ... in computing a defendant’s prior record score for sentencing purposes, a sentencing court cannot count that defendant’s prior misdemeanor convictions not involving use of a deadly weapon.” Since under the authority of Samuels the court improperly used misdemeanors in calculating the prior record score, we are constrained to vacate the sentence and remand for resentencing.¹ Since appellant must be resentenced, we do not reach the excessive sentence issue.

Sentence vacated. Remanded for resentencing. Jurisdiction relinquished.

KELLY, J., files dissenting opinion.

1 . Appellee argues that since the same sentence could have been given under the sentencing guidelines even if the two points for prior record score was not considered, we should affirm since appellant has shown no prejudice. However, the sentencing guidelines provide a substantial range of minimum sentences including a mitigated range which, if chosen, would necessarily place this sentence substantially below the sentence given. Since we have no way of knowing the effect which the prior record score had on the trial court’s sentencing decision, appellant is entitled to be resentenced.