Commonwealth v. Calhoun
52 A.3d 281
| Pa. Super. Ct. | 2012Background
- Appellant Calhoun punched a vehicle and caused the victim to be ejected, resulting in injury on April 18, 2009.
- Police originally charged multiple offenses, including two counts of aggravated assault, two counts of simple assault, REAP, and other vehicle-related offenses.
- Appellant pled guilty to two offenses at issue here: simple assault and REAP, with consecutive sentences and other charges nolle prossed.
- Subsequently, Appellant pled guilty to disorderly conduct and was sentenced to two consecutive one- to two-year terms with credit for time served, leading to parole/probation revocation in 2010.
- Appellant filed a timely pro se PCRA petition in 2011; counsel amended it; the PCRA court dismissed it in December 2011.
- Appellant challenges (1) whether simple assault and REAP should have merged for sentencing, and (2) whether trial counsel was ineffective for failing to object or appeal the consecutive sentences after revocation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do simple assault and REAP merge for sentencing? | Calhoun contends elements overlap; merge required under Baldwin and 9765. | Court held elements are distinct; REAP includes placing in danger of death; no merger. | No merger; sentences remain separate. |
| Was counsel ineffective for not objecting/appealing the consecutive sentences after revocation? | Ineffective assistance for failing to argue merger or appeal the distinct sentences. | No ineffective assistance because no illegal sentence; merger did not occur. | Not warranted; trial counsel not ineffective; PCRA court’s decision affirmed. |
| Whether the elements of simple assault and REAP as charged support a merger analysis under 9765 and Baldwin? | Elements allegedly overlap; all elements of simple assault contained in REAP as charged. | Elements are distinct; REAP adds danger element not in simple assault. | Distinct elements; no merger under 9765/Baldwin. |
Key Cases Cited
- Commonwealth v. Baldwin, 985 A.2d 830 (Pa. 2009) (defines merger under 9765; distinguishable elements prevent merging)
- Burkhardt, 586 A.2d 375 (Pa. 1991) (Blockburger not controlling for state statutes; merger context discussed)
- Commonwealth v. Klein, 795 A.2d 424 (Pa. Super. 2002) (pre-Baldwin merger discussions cited by appellant)
- Commonwealth v. Lawton, 414 A.2d 658 (Pa. Super. 1979) (early merger discussion contrasting REAP and simple assault)
- Commonwealth v. Gouse, 429 A.2d 1129 (Pa. Super. 1981) (simple assault not lesser included offense of REAP)
- Commonwealth v. McCalman, 795 A.2d 412 (Pa. Super. 2002) (discusses REAP as lesser included offense of aggravated assault; not controlling here)
- Commonwealth v. Reynolds, 835 A.2d 720 (Pa. Super. 2003) (REAP involves creating danger of serious bodily injury)
- Commonwealth v. Emler, 903 A.2d 1273 (Pa. Super. 2006) (distinguishes simple assault elements)