Commonwealth v. Keiper

887 A.2d 317, 2005 Pa. Super. 389, 2005 Pa. Super. LEXIS 4084
CourtSuperior Court of Pennsylvania
DecidedNovember 21, 2005
StatusPublished
Cited by21 cases

This text of 887 A.2d 317 (Commonwealth v. Keiper) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Keiper, 887 A.2d 317, 2005 Pa. Super. 389, 2005 Pa. Super. LEXIS 4084 (Pa. Ct. App. 2005).

Opinion

OPINION BY

JOHNSON, J.:

¶ 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 oúr 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 [319]*319burglary 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 Guidelines raises a question of the discretionary aspects of a defendant’s sentence.” 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 trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will.

Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa.Super.2002) (citations omitted).

¶ 6 In support of his first question, Keiper contends that his previous conviction of burglary is an element of 18 Pa.C.S. § 6105, and therefore, the trial court’s use of the conviction in calculating the prior record score amounted to double counting. Brief for Appellant at 9. Keiper argues that no one factor should be used twice in determining the prior record score. Brief for Appellant at 9. We conclude that Keiper’s prior conviction of burglary is not an element of the offense at issue. Accordingly, the trial court’s application of the prior record score did not constitute double counting.

¶ 7 This case is analogous to Commonwealth v. Johnson, 758 A.2d 1214 (Pa.Super.2000). In Johnson, the defendant pled guilty to charges of failing to register as a sex offender and failing to verify his address under the Megan’s Law statute. See id. at 1215. The trial court determined that Johnson had a prior record score of four based upon his prior rape conviction. [320]*320See id. at 1216. Johnson appealed, stating that his prior rape conviction was an element of the offense and as such, could not be used to enhance his sentence. See id. at 1217. The relevant provisions of the Megan’s Law statute applicable under the version of the statute in effect at the time that the Johnson Court studied these provisions provided:

§ 9793. Registration of certain offenders for ten years
(a) Registration. — A person convicted of any of the offenses set forth in subsection (b) shall be required to register a current address with the Pennsylvania State Police upon release from incarceration, upon parole from a State or county correctional institution, upon the commencement of a sentence of intermediate punishment or probation or where the offender is under the supervision of the Pennsylvania Board of Probation and Parole at the time of enactment of this section ...
(b) Persons required to register.—
(1) Persons convicted of any of the following offenses that are classified as a felony and involve a victim who is a minor:
******
18 Pa.C.S. § 3121 (relating to rape).

42 Pa.C.S. § 9793.

§ 9796. Verification of residence.
* * * * * *
(b) Annual verification. — The Pennsylvania State Police shall verify the residence of offenders designated in section 9793 (relating to registration of certain offenders for . ten years) annually through the use of a residence verification form. The form shall be returned by the offender within ten days.

42 Pa.C.S. § 9796(b). This Court found Johnson’s appeal to be without merit because “the prior conviction of rape is merely a pre-condition to charging and convicting Johnson of violating [the statutes]. That precondition is not part of the conduct that resulted in the charges of violating [the statutes].”

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Bluebook (online)
887 A.2d 317, 2005 Pa. Super. 389, 2005 Pa. Super. LEXIS 4084, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-keiper-pasuperct-2005.