Com. v. Rush

• Decision Date: 01 October 2008
• Docket Number: No. 71 EDA 2008,71 EDA 2008
• Citation: 959 A.2d 945
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Michael RUSH, Appellant.
• Court: Pennsylvania Superior Court

959 A.2d 945

COMMONWEALTH of Pennsylvania, Appellee v. Michael RUSH, Appellant.

No. 71 EDA 2008

Superior Court of Pennsylvania.

Submitted July 28, 2008.

Filed October 1, 2008.

Reargument Denied December 1, 2008.

Mitchell S. Strutin, Philadelphia, for appellant.

Hugh J. Burns, Jr., Asst. Dist. Atty., for Com., appellee.

BEFORE: MUSMANNO, BENDER and COLVILLE^*, JJ.

OPINION BY COLVILLE, J.:

¶ 1 On this direct appeal from judgment of sentence, Appellant contends his guilty pleas were involuntary because he was not advised, prior to pleading, that he was subject to mandatory minimum terms of imprisonment for drug trafficking. He also contends the mandatory minima imposed on him constitute an illegal sentence. As an alternative to each of the foregoing claims, Appellant seeks permission to appeal the discretionary aspects of his sentence. We affirm.

Facts

¶ 2 After pleading guilty, Appellant was sentenced on six counts of possessing a controlled substance with intent to deliver ("PWID") (35 P.S. § 780-113(a)(30)) and criminal conspiracy ("CC") (18 Pa.C.S.A. § 903). At each PWID count, the court imposed what it found to be mandatory minimum terms of seven to fourteen years' incarceration under 18 Pa.C.S.A. § 7508(a)(3)(iii).¹ The terms were concurrent. For each CC count, Appellant received five to ten years' imprisonment. The CC sentences were concurrent with each other and consecutive to the PWID sentences. Thus, Appellant's aggregate term was twelve to twenty-four years in prison.

Guilty Pleas and Discretionary Aspects of Sentencing

¶ 3 For the reasons that follow, we find Appellant's claims regarding his guilty pleas and the discretionary aspects of his sentence waived. We begin with a brief review of relevant legal principles.

¶ 4 Legal Principles. Normally, issues not preserved in the trial court may not be pursued before this Court. Pa R.A.P. 302(a). For example, a request to withdraw a guilty plea on the grounds that it was involuntary is one of the claims that must be raised by motion in the trial court in order to be reviewed on direct appeal. Commonwealth v. Tareila, 895 A.2d 1266, 1270 n. 3 (Pa.Super.2006). Similarly, challenges to a court's sentencing discretion must be raised during sentencing or in a post-sentence motion in order for this Court to consider granting allowance of appeal. Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa.Super.2008). Moreover, for any claim that was required to be preserved, this Court cannot review a legal theory in support of that claim unless that particular legal theory was presented to the trial court. Commonwealth v. Thur, 906 A.2d 552, 566 (Pa.Super.2006). Thus, even if an appellant did seek to withdraw pleas or to attack the discretionary aspects of sentencing in the trial court, the appellant cannot support those claims in this Court by advancing legal arguments different than the ones that were made when the claims were preserved. Id.

¶ 5 Also relevant to the preservation of claims are the following principles. First, it is the appellant's obligation to demonstrate which appellate issues were preserved for review. Pa.R.A.P. 2117(c), 2119(e). Second, during our review of a case, we rely only on facts and documents in the certified record. Commonwealth v. Wrecks, 931 A.2d 717, 722 (Pa.Super.2007). This Court does not rely on items dehors the record, such as assertions in an appellate brief or a trial court opinion. Id. Moreover, the duty to ensure the certified record contains all the facts and documents necessary for our review lies with the appellant. Id. Thus, because our review necessitates a determination of whether issues were preserved, the appellant has the burden to demonstrate which part of the certified record reveals the preservation of the appellate issues.

¶ 6 Analysis. With respect to the preservation of issues, Appellant states that he "... filed a timely post-sentence motion in the nature of a motion for reconsideration of sentence." Appellant's Brief at 6. This statement does not explain what legal theories Appellant presented, and therefore allegedly preserved, in the trial court in support of his purported claim that his sentence should be reconsidered. In short, he does not tell us what arguments he raised for reconsideration of sentence.

¶ 7 Elsewhere in his brief, Appellant indicates he filed a motion to withdraw his guilty pleas with the trial court. However, he does not specify the arguments he allegedly raised to the court in support of that motion.

¶ 8 Additionally, the trial court docket contained in the certified record does not reflect the filing of a motion for reconsideration of sentence or a motion to withdraw guilty pleas. Moreover, the record itself simply does not contain any such motions.²

¶ 9 Accordingly, Appellant has not sufficiently specified which issues were preserved and the certified record simply does not contain any motion to withdraw his pleas or to reconsider his sentence. Therefore, Appellant has not met his burden to demonstrate he preserved his requests to withdraw his pleas and to challenge the discretionary aspects of sentencing. Thus, those matters are waived.

Legality of Sentence

¶ 10 Appellant's next claim is that the court erred by imposing mandatory minimum sentences under 18 Pa.C.S.A. § 7508(a)(3)(iii) that requires enhanced penalties (i.e., seven to fourteen years' incarceration in Appellant's case) for persons who already have other drug trafficking convictions. This claim implicates the legality of sentence. Commonwealth v. Bell, 901 A.2d 1033, 1034-35 (Pa.Super.2006). Such a claim is not waivable. Commonwealth v. Jones, 932 A.2d 179, 182 (Pa.Super.2007). Thus, we will review it, even though Appellant has not shown it was preserved at sentencing or in a post-sentence motion. Commonwealth v. Zampier, 952 A.2d 1179, 1181 (Pa.Super.2008).

¶ 11 Appellant touches upon several arguments to support his claim that the mandatory penalties were illegally imposed on him. Initially, he contends the enhanced mandatory minima of 18 Pa. C.S.A. § 7508 do not apply because he did not have other drug trafficking convictions. He notes he pled guilty to his charges in the course of two consolidated plea proceedings. More specifically, he pled guilty to two drug cases in one hearing, pled to four more in another hearing, and was then sentenced on all six cases in a single sentencing hearing. His position is that, because of the consolidated proceedings, none of the convictions can serve as a preexisting conviction triggering enhanced mandatory penalties for the other counts.

¶ 12 This argument fails. The plain language of Section 7508 requires enhanced sentences if, at the time of sentencing, the defendant has already been convicted of another drug trafficking offense such as PWID. 18 Pa.C.S.A. § 7508(a)(3)(iii). A person who pleads guilty to multiple drug trafficking counts in a consolidated proceeding acquires multiple convictions. When that person then proceeds to sentencing, the enhanced penalty language applies precisely because the person already has other convictions. Bell, 901 A.2d at 1034, 1037. Accordingly, Appellant's argument to the contrary has no merit.

¶ 13 At points in Appellant's brief, he also contends that, if mandatory minima do apply to him, some of his charges should have been subject to minima of three or five years rather than seven. This Court is aware that 18 Pa.C.S.A. § 7508 discusses differing penalties based on the type of drugs, the amount of drugs and the number of other convictions. Appellant, however, does not develop an argument analyzing the facts of each of his charges, comparing those facts to the several provisions of Section 7508 and demonstrating for us which penalty applies to which charge.

¶ 14 It not for this Court to develop an appellant's arguments. Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.Super.2007). Rather, it is the appellant's obligation to present developed arguments and, in so doing, apply the relevant law to the facts of the case, persuade us there were errors, and convince us relief is due because of those errors. Wrecks, 931 A.2d at 722; Hardy, 918 A.2d at 771. If an appellant fails to do so, we may find the argument waived. Hardy, 918 A.2d at 771. Thus, because Appellant has not developed his contention so as to facilitate meaningful review by this Court, we find this particular argument waived.

¶ 15 Appellant also contends that, because he was being sentenced on six cases, only five of the six warranted the enhanced penalties. The plain language of Section 7508 does not support this contention. Under Section 7508, the question is whether, at the time of sentencing for an offense, the defendant has already been convicted of other drug trafficking crimes. Commonwealth v. Vasquez, 562 Pa. 120, 753 A.2d 807, 809 (2000); 18 Pa.C.S.A. § 7508(a)(3)(iii). If, at the time of sentencing, a defendant has indeed already been convicted of other drug trafficking offenses, then the enhanced mandatory sentences apply to that defendant. Vasquez, 753 A.2d at 809. Put another way, when determining the appropriate mandatory sentence for a drug trafficking offense under Section 7508, the sentencing court looks back from the time of sentencing to determine whether the defendant already has been convicted of another drug trafficking offense. Id. A defendant has, in fact, already been "convicted of another drug trafficking offense" if that person has been convicted of a qualifying offense such as PWID, whether or not judgment of sentence has been entered thereon. 18 Pa.C.S.A. § 7508(a.1).

¶ 16 At the time the court imposed the first of the six mandatory penalties in this case, Appellant was already convicted of the other five because he had already pled guilty. Therefore, there was no sentencing at which Appellant did not already have other convictions. Rather, he had other convictions on all the offenses before he was sentenced for any of them. As such, on all...