concurring and dissenting:
I agree with the result affirming the judgment of sentence. I also agree with the Majority’s statement that the improper utilization of the Sentencing guidelines is an error or law, and thus, although it presents a legal question, it does not render the sentence illegal. Therefore, a defendant can waive such a challenge to a sentence if it is not presented or developed on appeal.
However, where properly presented, a question suggesting that a sentencing court improperly utilized the guidelines is not a discretionary matter. A claim that a prior record score was miscalculated does not call for a discretionary decision. It is legal matter calling for a legal conclusion. Accordingly it should, when presented as an issue and developed by an appellant in the appellate brief, be reviewed without the requirement of compliance with Pa.R.A.P. 2119(f), which is applicable only to challenges of the discretionary aspects of a sentence.
If, however, this court sees fit to require compliance with Pa.R.A.P. 2119(f) in these circumstances, in my judgment a substantial question will be raised where an appellant claims there was an improper calculation of a prior record score, and our review will be mandated. Recognizing the question for what it is, one which challenges an error of law, eliminates the needless task of requiring the 2119(f) statement.
CAVANAUGH, J., and S.CHILLER, J., join in this Concurring and Dissenting Opinion.