Com. v. Springer

Decision Date01 December 2008
Docket NumberNo. 341 WDA 2008.,341 WDA 2008.
Citation961 A.2d 1262,2008 PA Super 275
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. Carl W. SPRINGER, Appellant.
CourtPennsylvania Superior Court

Kenneth M. Baldonieri, Greensburg, for appellant.

Karen A. Gelety, Asst. Dist. Atty., Greensburg, for the Com., appellee.

BEFORE: BENDER, FREEDBERG, and POPOVICH, JJ.

OPINION BY POPOVICH, J.:

¶ 1 Appellant Carl W. Springer appeals the order denying his Post Conviction Relief Act (PCRA)1 petition claiming that the sentence imposed was illegal; and counsel was ineffective for permitting him to plead guilty. We affirm.

¶ 2 The facts and procedural history of this case are as follows:

[Appellant] pleaded guilty on September 9, 2003 to Burglary, Theft, Receiving Stolen Property, Criminal Mischief and Possession with Intent to Deliver at Criminal Number 982 C 2003. The factual basis of the plea was [Appellant's] forced entry into Hayden's Pharmacy on November 14-15, 2001.

On the date of his plea, [Appellant] completed a Guilty Plea Petition in which he acknowledged the rights he was foregoing and his understanding of the charges and their respective sentences. He indicated that he wished to plead guilty because, he noted, "It is in my best interests." (See Guilty Plea Petition dated September 9, 2003.) Subsequent to the completion of the Guilty Plea Petition, [Appellant] appeared before th[e trial c]ourt, at which time a colloquy conducted by the [trial c]ourt demonstrated that he understood both the nature of the charges, the penalty for each charge, and the rights he was forfeiting.

[Appellant] appeared for sentencing on January 29, 2004. The [trial c]ourt had ordered a Pre-Sentence Report that was made available to his counsel. (NT 2-3.) Although there was a general plea of guilty, defense counsel requested that [Appellant's] sentence run concurrently with sentences imposed in Cambria County. (NT 9.) The [trial c]ourt agreed to this proposal. (NT 10.) [Appellant] was given an opportunity to speak, which he refused.

A sentence of 5-10 years was imposed on Count I, Burglary, and 2-4 years imposed at Count V, Possession with Intent to Deliver, to run consecutively to Count I. Restitution was ordered. The remaining charges either merged or no further sentence was imposed. Further, the sentences were ordered to be concurrent with the sentence imposed in Cambria County. [Appellant] was informed of his appeal rights. [No post-sentence motions or appeals to any appellate court were filed. However, o]n January 23, 2005, [Appellant] filed a Petition for Post Conviction Collateral Relief [seeking the appointment of counsel and correction of his sentence to conform with the law].2 On March 28, 2007 [...] counsel [other than guilty plea counsel] was appointed. Counsel filed an Amendment to the Petition for Post Conviction Collateral Relief as well as a Second Amended Petition for Post Conviction Relief.

Trial court opinion, 11/02/07, at 1-2. The Commonwealth filed an answer to Appellant's second amended PCRA petition. By order dated October 31, 2007, the PCRA court filed a notice of intention to dismiss Appellant's PCRA petition, which occurred without a hearing on December 7, 2007. Appellant filed the present appeal on December 26, 2007, and submitted a Pa. R.A.P. 1925(b) statement raising four issues, but, on appeal, the claims were reduced to two, the first of which posits:

WHETHER THE PLEA COURT SET AN ILLEGAL SENTENCE WHEN IT FAILED TO MERGE POSSESSION WITH INTENT TO DISTRIBUTE CONTROLLED SUBSTANCE WITH BURGLARY AND SENTENCED APPELLANT TO SERVE A CONSECUTIVE SENTENCE FOR POSSESSION WITH INTENT TO DELIVER CONTROLLED SUBSTANCE IN VIOLATION OF 18 Pa.C.S.A. § 3502(d), AS THE CRIME OF POSSESSION WITH INTENT TO DELIVER CONTROLLED SUBSTANCE WAS AN INTENDED OFFENSE TO BE COMMITTED BY APPELLANT AFTER THE BURGLARIOUS ENTRY?

¶ 3 In reviewing the propriety of a PCRA court's order dismissing a PCRA petition, we are limited to determining whether the PCRA court's findings are supported by the record and whether the order in question is free of legal error. Commonwealth v. Ragan, 592 Pa. 217, 220, 923 A.2d 1169, 1170 (2007). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Spencer, 892 A.2d 840, 841 (Pa.Super.2006) (citation omitted). Moreover, "[t]here is no absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA court can determine from the record that no genuine issues of material fact exist, then a hearing is not necessary." Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super.2008), appeal denied, 956 A.2d 433 (Pa.2008) (citing Commonwealth v. Barbosa, 819 A.2d 81 (Pa.Super.2003)); Pa.R.Crim.P. 907(2). A reviewing court must examine the issues raised in the PCRA petition in light of the record in order to determine whether the PCRA court erred in concluding that there were no genuine issues of material fact and in denying relief without an evidentiary hearing. Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.Super.2001) (citation omitted).

¶ 4 Initially, we shall address Appellant's argument that his possession with intent to deliver conviction "was an intended offense to be committed after the burglarious entry[,]" and, therefore, it should have merged for sentencing purposes with the burglary conviction.3 Appellant's brief, at 6.

¶ 5 The determination of whether crimes merge for sentencing purposes has posed problems in this Commonwealth, as is evident by the recent Supreme Court decision in Commonwealth v. Jones, 590 Pa. 356, 912 A.2d 815 (2006) (plurality), reargument denied, 2007 Pa. Lexis 381 (filed February 20, 2007), wherein a majority of the high Court could not agree on what approach (a fact-based or an element-based analysis) to embrace in a merger context. As a result, a panel of this Court adopted the dissent's view in Jones (an element-based tact) to resolve a merger question. See Commonwealth v. Williams, 920 A.2d 887 (Pa.Super.2007). Accord Commonwealth v. Ede, 949 A.2d 926, 933 (Pa.Super.2008); Commonwealth v. Martz, 926 A.2d 514 (Pa.Super.2007), appeal denied, 596 Pa. 704, 940 A.2d 363 (2008). The exception to Williams is when a statute dictates the manner and method by which merger will occur. See Commonwealth v. Burkhardt, 526 Pa. 341, 346, 586 A.2d 375, 377-78 (1991) ("[I]n the context of simultaneous convictions of multiple offenses, pursuant to guilty pleas or trial verdicts, the trial court may sentence separately for each distinct statutory crime of which the defendant is convicted, limited only by express legislative intent to the contrary." (footnotes omitted)).

¶ 6 There is statutory authority for the proposition that, under the particular facts at bar, burglary does not merge with the possession with intent to deliver offense. 18 Pa.C.S.A. § 3502(d) provides that, "A person may not be convicted both for burglary and for the offense which it was his intent to commit after the burglarious entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree." See Commonwealth v. Jefferson, 307 Pa.Super. 18, 452 A.2d 881 (1982) ("conviction" as used in the burglary statute refers to judgment of sentence, not verdict).

¶ 7 The Commonwealth's evidence on the charge of burglary was that Appellant "entered a building or occupied structure or separately secured or occupied portion thereof, namely Haydens Pharmacy located on Route 119, Youngwood Borough, with the intent to commit a crime therein, at a time when the premises were not open to the public and [Appellant] was not licensed or privileged to enter, in violation of Section 3502 of the Pennsylvania Crimes Code." See Commonwealth's Criminal Action No. 982 of 2003; Record No. 4. One of the crimes the Commonwealth charged Appellant with committing once inside the pharmacy was (at Count 5) taking unlawful control over movable property, namely, various narcotics having an approximate value of eight-thousand dollars belonging to the pharmacy, all in violation of Section 13(a)(30) of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-113(a)(30). Id.

¶ 8 Violation of 35 P.S. § 780-113(a)(30), possession with intent to deliver a controlled substance (cocaine), is a felony carrying a sentence not exceeding ten years and/or the payment of a fine not exceeding one hundred thousand dollars. 35 P.S. § 780-113(f)(1.1); N.T. Guilty Plea, 9/9/03, at 10 ("[COURT:] Count 5 is Possession with Intent to Deliver a Controlled Substance, a felony under the Drug Act. It is a Schedule II controlled substance, cocaine. A Schedule II narcotic carries a maximum punishment of ten years in jail and a 100 thousand dollar fine."); N.T. Sentencing, 1/29/04, at 12 ("[COURT:] At [Criminal Action] No. 982 of 2003, you [Appellant] are sentenced to not less than seven nor more than fourteen years, to run concurrently with the sentence at [Criminal Action No.] 980 [of 2003]. Counts 2 and 3 merge for purposes of sentencing. Count 4, no further sentence. At Count 5, [which is possession with intent to deliver], you will serve a sentence of not less than two nor more than four years to run [consecutively] to the sentence imposed at Count 1[, which is burglary, a sentence of five to ten years]."); Id. at 18 ("Count 5, two to four years consecutive to Count 1.").4

¶ 9 Therefore, under the clear language of § 3502(d), the possession with intent to deliver charge (a felony of the second degree, 18 Pa.C.S.A. § 1103(2)) did not merge with burglary. Compare Commonwealth v. Whetstine, 344 Pa.Super. 246, 496 A.2d 777, 780 (1985) (attempted involuntary deviate sexual intercourse charge did not merge with burglary); Commonwealth v. Simpson, 316 Pa.Super. 115, 462 A.2d 821 (1983) (Appellant could be sentenced for both burglary and attempted rape under 18 Pa.C.S.A. § 3502(d) because the latter offense...

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