Com. v. Ramsey, E.Com. v. Ramsey, E.
Appellant, Edward Glenn Terrel Ramsey, appeals from the judgment of sentence imposed after he pled guilty to one count of possession with intent to deliver a controlled substance (PWID), and one count of delivery of a controlled substance. On appeal, Appellant challenges the legality and discretionary aspects of his sentence. After careful review, we vacate Appellant‘s judgment of sentence and remand for resentencing.
Appellant‘s convictions stemmed from his single sale, to an undercover police officer, of a compound mixture containing detectable amounts of heroin and fentanyl. On March 13, 2018, Appellant pled guilty to the above-stated offenses. He was initially sentenced on June 5, 2018, to a term of 3 to 6 years’ incarceration. However, on June 8, 2018, the court sua sponte vacated Appellant‘s sentence and resentenced him to a term of 2 to 4 years’ incarceration for his PWID offense and a concurrent 6 years’ probation for his delivery conviction.1
Appellаnt filed a timely post-sentence motion, which was denied. He then filed a timely notice of appeal, and he also timely complied with the trial court‘s order to file a
I. Did the trial court violate [Appellant‘s] double jeopardy and due process rights under the United States and Pennsylvania Constitutions by separately sentencing him on two counts of [d]elivery of a [c]ontrolled substance where one single compound containing detectable amounts of both heroin and fentanyl was delivered; where a single criminal act of delivery occurred; and where the specifiс kind of controlled substance relates only to the applicable Offense Gravity Score [(OGS)] and statutory maximum penalty, and not the statutory elements of the offense?
II. Where only the most serious juvenile adjudication of each prior disposition is counted in an individual‘s Prior Record Score [(PRS)] pursuant to
204 Pa. Code § 303.6 , did the trial court err by calculating [Appellant‘s] [PRS] as repeat felony offender [(RFEL)] where [Appellant‘s] сriminal record was comprised of two juvenile adjudications for [b]urglary[,] but where one such adjudication was an adjudication without disposition?
Appellant‘s Brief at 5.2
In Appellant‘s first issue, he argues that the trial court violated his double jeopardy protections under the United States and Pennsylvania Constitutions by separately sentencing him for two drug offenses that arose from a single delivery of a compound mixture containing inseparablе controlled substances.3 Alternatively, he insists that his sentences for both drug offenses under
In support of his arguments, Appellant directs our attention to Commonwealth v. Farrow, 168 A.3d 207 (Pa. Super. 2017). There, Farrow was charged, convicted, and sentenced for three counts of driving under the influence (DUI) - general impairment pursuant to
The same is true in the instant case. Appellant received separate sentences for two counts that each alleged, at bottom, a single criminal act in violation of
Moreover, our decision in Commonwealth v. Swavely, 554 A.2d 946 (Pa. Super. 1989), on which the trial court solely relies, does not convince us that Appellant‘s separate sentences are constitutionally permissible. There, Swavely committed one drug delivery of two different types of prescription pills cоntained in the same vial. Id. at 949. For this act, he was convicted and separately sentenced for two counts of delivery under
We also agree with Appellant — as does the Commonwealth — that his two convictions must at least merge for sentencing purposes. Our General Assembly has directed that,
[n]o crimes shall merge for sentencing purposes unless the crimes arise from a single criminal аct and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence
the defendant only on the higher graded offense.
Here, Appellant was convicted of two offenses that are both defined by the same provision:
(30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.
Despite this disposition, we must address Appellant‘s second issue challenging the trial court‘s calculation of his PRS, as it will afford clarity to the trial court at resentencing. Initially, we observe that this claim constitutes a challenge to the discretionary aspects of Appellant‘s sentence. See Commonwealth v. Spenny, 128 A.3d 234, 241 (Pa. Super. 2015) (citation omitted).
[S]uch challenges are not subject to our review as a matter of right. “An appellant must satisfy a four-part test to invoke this Court‘s jurisdiction when challenging the discretionary aspects of a sentence,” by (1) preserving the issue in the court below, (2) filing a timely notice of appeal, (3) including a statement pursuant to
Pa.R.A.P. 2119(f) (“Rule 2119(f) statement“) in his brief on appeal, and (4) raising a substantial question for our review. Commonwealth v. Tejada, 107 A.3d 788, 797 (Pa. Super. 2015) (citation omitted).
Here, Appellant preserved his PRS issue before the trial court, he filed a timely notice of appeal, and he includes a Rule 2119(f) statement in his brief. Additionally, his issue constitutes a substantial question for our review. See id. (citation omitted); see also Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012) (citing Commonwealth v. Janda, 14 A.3d 147, 165 (Pa. Super. 2011)). Thus, we will address his sentencing claim herein, applying the following standard of review:
[T]he proper standard of review when considering whether to affirm the sentencing court‘s determination is an
abuse of discretion. [A]n abuse of discretion is more than a mere error of judgment; thus, a sentencing court will not 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. In more expansive terms, our Court recently offered: An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.
Provenzano, 50 A.3d at 154 (quoting Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) (cleaned up)).
Appellant contends that the trial court erred by factoring both of his two juvenile adjudications оf delinquency for burglary in assigning him a PRS of RFEL, despite that he only received a disposition on one of those adjudications. According to Appellant, the fact that he received no disposition for one burglary adjudication precluded the court from considering it in formulating his PRS. Thus, Appellant insists that his correct PRS is three, based on the single burglary adjudication for which he received a disposition.
Appellant‘s argument hingеs on interpreting several provisions of the sentencing guidelines governing the calculation of a PRS. Initially, we note that,
although the Pennsylvania Commission on Sentencing, rather than the General Assembly itself, directly adopts the sentencing guidelines and thus they are not statutes per se, the guidelines nevertheless retain a legislative character, as the General Assembly may reject them in their entirety prior to their taking effect, subject, of course, to gubernatorial review.
Commonwealth v. Bonner, 135 A.3d 592, 597 (Pa. Super. 2016) (cleaned up). Thus, we review an issue implicating an interpretation of the sentencing guidelines in the same manner as we review a question of statutory interpretation. See, e.g., id. (concluding that “we review the constitutionality of a sentencing guideline in the same manner that we review the constitutionality of a statute“).
In all matters involving statutory interpretation, we apply the Statutory Construction Act,
Commonwealth v. Kingston, 143 A.3d 917, 922 (Pa. 2016). “In
(a) Juvenile adjudication criteria. Prior juvenile adjudications are counted in the Prior Record Score when the following criteria are met:
(1) The juvenile offense occurred on or after the offender‘s 14th birthday, and
(2) There was an express finding by the juvenile court that the adjudication was for a felony or one of the Misdemeanor 1 offenses listed in
§ 303.7(a)(4) .(b) Only the most serious juvenile adjudication of each prior disposition is counted in the Prior Record Score. No other prior juvenile adjudication shall be counted in the Prior Record Score.
In rejecting Appellant‘s argument, the trial court concluded that Appellant‘s reliance on section 303.6(b) was “misplaced[,]” as that provision “only addresses a scenario where a juvenile is adjudicated of multiple offenses as part of the same case number (disposition), such that only thе ‘most serious’ adjudication of that disposition (case) is counted.” Trial Court Opinion (TCO), 10/11/18, at 5 (emphasis added). The court reasoned that, because Appellant‘s burglary charges were not part of the same case number, they must both count for his PRS. Further, the court concluded that, although Appellant did not receive a disposition for his one burglary adjudication, it must still be factored into his PRS under section 303.8 and
(a) Prior convictions and adjudications of delinquency.
(1) A prior conviction means “previously convicted” as defined in
42 Pa.C.S. § 2154(a)(2) . A prior adjudication of delinquency means “previously adjudicated delinquent” as defined in42 Pa.C.S. § 2154(a)(2) . In order for an offense to be considered in the PriorRecord Score, both the commission of and conviction for the previous offense must occur before the commission of the current offense.
“Previously convicted of or adjudicated delinquent.” Any finding of guilt or adjudication of delinquency, whether or not sentence has been imposed or disposition ordered prior to the commission of the current оffense.
It is apparent that the difference of opinion between the trial court and Appellant stems from their contrasting interpretations of the phrase, “each prior disposition,” that appears in section 303.6(b). The trial court essentially concluded that the phrase means ‘each prior case number,’ while Appellant construes it as meaning ‘each prior judicial proceeding.’ Assessing the at-issue language of section 303.6 in the context of Chapter 303 as a whole, see Kingston, supra, leads us to accept Appellant‘s interpretation.
As set forth supra, section 303.2 defines the term “judicial proceeding” to mean: “[A] proceeding in which all offenses for which the offender has been convicted are pending before the court for sentencing at the same time. A judicial proceeding may include multiple offenses and transactions.”
(a) If there is a single offense in the prior judicial proceeding, that offense shall bе counted in the calculation of the Prior Record Score.
(b) If there are multiple offenses in the prior judicial proceeding:
(1) The most serious offense of the judicial proceeding shall be counted in the calculation of the Prior Record Score.
(2) Any offense for which a sentence of supervision or confinement is imposed consecutive to a sentence for another offensе in the judicial proceeding shall be counted in the calculation of the Prior Record Score.
Pursuant to these provisions, had Appellant committed his burglary offenses as an adult, only the first burglary conviction would count toward his PRS. However, under the court‘s interpretation of section 303.6(b), both of his burglary adjudications must be counted for his PRS. We cannot conclude that the Pennsylvania Commission on Sentencing intended that prior juvenile adjudications result in a higher PRS than similar offenses committed as an adult. Instead, we presume that the commission meant for juvenile adjudications to be treated similarly to adult convictions for PRS purposes.
The fact that section 303.6(b) does not use the term ‘judicial proceeding’ as used in section 303.5 makes sense, given that the definition of that term refers to convictions and sentencing, which are inapplicable to juvenile offenders. See, e.g.,
Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/2/2019