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Commonwealth v. Keiper11/21/2005
1 In this case, we consider whether a defendant's prior conviction is an element of a charge of persons not to possess, use, manufacture, control, sell or transfer firearms. See 18 Pa.C.S. § 6105. Kristopher Keiper contends that it is and that the trial court's use of the prior conviction in calculating his prior record score constitutes "double counting" which violates the Pennsylvania Sentencing Guidelines. We conclude that a prior conviction is not an element of the offense under section 6105 but is merely a precondition to charging the accused with a violation of that section. Accordingly, we affirm the judgment of sentence.
2 Keiper appeals the judgment of sentence imposed following a plea of guilty to one count of persons not to possess firearms. The facts relevant to our disposition of the case are as follows: In 1997, Keiper was convicted of burglary. On May 3, 2004, the police arrested Keiper and charged him for violating 18 Pa.C.S. § 6105, after finding three rifles in his possession. Keiper pled guilty to one count of Persons not to possess firearms, a felony in the second degree. Prior to sentencing, the Monroe County Probation Department prepared a Pre-sentence Investigation Report ("PSI"). The PSI stated that under the sentencing guidelines, Keiper's prior record score was a three, due to Keiper's prior conviction of burglary. On January 13, 2005, the date of sentencing, Keiper claimed his prior record score should have been zero because his 1997 burglary conviction was an element of the offense to which he pled. The Honorable Margherita Patti Worthington rejected this argument and sentenced Keiper to a term of no less than fifteen months and no more than thirty months. Keiper then filed a Motion for Reconsideration of Sentence making the same argument. The trial court denied the motion. On April 5, 2005, Keiper filed a Rule 1925(b) statement again alleging the trial court erred in using a prior record score of three instead of zero. The trial court again found this argument unavailing.
3 Keiper then filed a timely notice of appeal, raising the following questions for our review:
1. Is the prior conviction of an enumerated felony an element of 18 Pa.C.S.A. § 6105(a) (Persons not to possess, use, etc. firearms)?
2. Is section 303.8(g) of the Pa. Sentencing Guidelines intended to avoid double counting so that a prior burglary should not be included in a defendant's prior record score if that same prior burglary is the only thing that made the defendant's possession of three rifles illegal under 18 Pa.C.S.A. § 6105?
Brief for Appellant at 4.
4 First, a "challenge to the calculation of the Sentencing Guidelinesraisesaquestionof thediscretionary aspectsof a defendant'ssentence." Commonwealth v. Johnson, 758 A.2d 1214, 1216 (Pa. Super. 2000) (citing Commonwealth v. Archer, 722 A.2d 203 (Pa. Super. 1998)). When a defendant raises an issue that implicates the discretionary aspects of sentencing, he must demonstrate that a substantial question regarding the appropriateness of the sentence exists. See id. (citing 42 Pa.C.S. § 9781(b)). A claim that the sentencing court misapplied the Sentencing Guidelines in double counting a prior conviction in its calculation of the prior record score presents a substantial question. See id. Therefore, Keiper has raised a substantial question.
5 Our standard of review in sentencing matters is well settled:
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. An abuse of discretion is more than just an error in judgment and, on appeal, the tri
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