Com. v. Cousins, M.
1411 EDA 2017
| Pa. Super. Ct. | Jan 9, 2018Background
- Markease Gilbert Cousins was arrested July 21, 2016 on an active bench warrant; a search incident to arrest yielded 16 bags (1.75 g) of cocaine on his person.
- Cousins was convicted after a stipulated-facts trial of possession of a controlled substance, 35 P.S. § 780-113(a)(16), on Docket No. 3014-16.
- That conviction constituted a violation of probation (VOP) for an earlier conspiracy-to-burglary conviction at Docket No. 1915-09.
- PSI was prepared; on March 28, 2017 the court sentenced Cousins to 1–3 years for the possession count and an additional 1–5 years on the VOP, to run consecutively for an aggregate 2–8 years.
- Cousins filed a post-sentence motion and timely appeal, arguing (1) the 1–3 year term on the possession conviction was illegal because his prior convictions were for clauses (31) and (32) (paraphernalia and small-amount marijuana), and (2) the aggregate consecutive sentence was excessive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legality of 1–3 year maximum under 35 P.S. § 780-113(b) | Cousins: enhancement to 3-year max applies only if prior conviction was for a clause listed in §780-113(b) (clauses 1–11,13,15–20,37) | Commonwealth: statute applies whenever there is a prior conviction under §780-113 (any clause) | Court held the statute unambiguous; prior convictions under §780-113 (paraphernalia, small-amount marijuana) triggered the enhanced 3-year maximum, so sentence legal |
| Discretionary-excessiveness of aggregate 2–8 years and consecutive sentencing | Cousins: aggregate consecutive sentence is excessive for nonviolent simple possession | Commonwealth: court considered PSI, public protection, gravity of offenses, and prior violent/criminal history | Court affirmed as within sentencing discretion; trial court considered relevant factors and did not abuse discretion |
Key Cases Cited
- Commonwealth v. Kline, 166 A.3d 337 (Pa. Super. 2017) (standards for legality of sentence review)
- Commonwealth v. Parsons, 166 A.3d 1242 (Pa. Super. 2017) (statutory construction principles applied to §780-113)
- Commonwealth v. Pitner, 928 A.2d 1104 (Pa. Super. 2007) (prior drug convictions subject defendant to increased penalty under §780-113)
- Commonwealth v. Johnson-Daniels, 167 A.3d 17 (Pa. Super. 2017) (procedural requirements and review standard for discretionary sentencing challenges)
- Commonwealth v. Johnson, 125 A.3d 822 (Pa. Super. 2015) (presumption that sentencing court considered PSI and relevant information)
- Commonwealth v. Malovich, 903 A.2d 1247 (Pa. Super. 2006) (what constitutes a substantial question for sentence review)