Commonwealth v. Coto, 2007 PA Super 265 (Pa. Super. Ct. 8/27/2007)
| Decision Date | 27 August 2007 |
| Docket Number | No. 201 WDA 2006.,201 WDA 2006. |
| Citation | 2007 PA Super 265 |
| Court | Pennsylvania Superior Court |
| Parties | COMMONWEALTH OF PENNSYLVANIA, Appellee v. KOHATH THADDAEUS COTO, Appellant. |
Appeal from the Judgment of Sentence, December 22, 2005 In the Court of Common Pleas of ALLEGHENY County Criminal Division, at CC No. 200512975
Before: LALLY-GREEN, McCAFFERY, AND KELLY, JJ.
OPINION BY McCAFFERY, J.:
¶ 1 Appellant, Kohath Thaddaeus Coto, appeals from the judgment of sentence imposed following his guilty plea conviction for the offense of firearms not to be carried without a license.1 The issue we confront is which party, if any, bears the burden of proof on the grading of this offense at sentencing. For the reasons set forth below, we hold that license eligibility is a matter of sentencing mitigation subject to proof by the defendant by a preponderance of the evidence. After careful review, we conclude that the sentencing court in this case properly graded Appellant's conviction as a felony. Accordingly, we affirm the judgment of sentence.
¶ 2 The relevant facts and procedural history underlying this appeal are as follows. While conducting surveillance on February 18, 2005, Police Officers Kavals, Mercurio and Pires observed Appellant look in their direction, remove a semi-automatic pistol from his right front jacket pocket and toss it to the ground. Officer Mercurio subsequently recovered the firearm, a loaded silver and brown Raven Arms Model MP-25 25 caliber semi-automatic pistol. The officers detained Appellant while they confirmed whether or not he possessed a permit to carry the concealed weapon. After the officers determined that he did not possess such a permit, the Commonwealth charged Appellant with the felony offense of firearms not to be carried without a license. On December 22, 2005, Appellant pled guilty to the felony charge. At Appellant's Guilty Plea and Sentencing Hearing, Appellant confirmed his understanding that the offense carried a maximum period of incarceration of seven years and a maximum fine of $15,000.00. (Notes of Testimony ("N.T.") Guilty Plea and Sentencing Hearing, 12/22/05, at 3). Following the prosecutor's recitation of the Commonwealth's evidence, the court proceeded to sentencing:
(Id. at 6). Appellant did not file post-sentence motions, but did file a timely notice of appeal and now raises the following two issues for our review:
I. Did the trial court err when it sentenced [Appellant] without sufficient proof of the felony grading of 18 Pa.C.S.[A.] § 6106?
II. Did the trial court violate [Appellant's] due process rights guaranteed by both the United States and Pennsylvania constitutions by impermissibly shifting the burden of proof regarding eligibility to be licensed to carry a firearm as it pertains to the grading of 18 Pa.C.S.[A.] § 6106?
¶ 3 Both of Appellant's issues rely on Section 6106(b), under which the offense of firearms not to be carried without a license is downgraded to a misdemeanor if the defendant is otherwise eligible to possess a valid license and has not committed any other criminal violation. Appellant first posits that under the applicable statute, it was the Commonwealth's burden to prove by a preponderance of the evidence, at a minimum, that Appellant was ineligible to obtain a license to carry a firearm. Appellant asserts that the Commonwealth failed to present any facts regarding Appellant's eligibility to be licensed to carry a firearm, and further that the trial court "completely failed to address the issue." (Appellant's Brief at 8). According to Appellant, the maximum possible grading supported by the evidence is that of first-degree misdemeanor. Consequently, Appellant concludes that the trial court imposed an illegal sentence.
¶ 4 The Commonwealth contends that by pleading guilty to the felony offense, Appellant conceded his ineligibility to possess a valid license to carry a concealed firearm. Thus, the Commonwealth asserts that the prosecution had no burden to establish Appellant's lack of eligibility to possess a license. (Commonwealth's Brief at 4). In its Rule 1925(a) opinion, the trial court notes that there is no record of any request or discussion by defense counsel regarding the downgrading of Appellant's plea from a felony to a misdemeanor. (Trial Court Opinion, dated March 28, 2006, at 4). Additionally, the trial court determined that the Commonwealth had fulfilled its duty of establishing the elements of the felony charge against Appellant and that the court had properly accepted Appellant's plea. (Id.) The court explained its holding as follows:
The record is devoid of any evidence to establish that Appellant was `otherwise eligible to possess a valid firearms license' as required by 18 Pa.C.S.A. § 6106(a)(2). Although Appellant had a zero prior record score, there are numerous factors set forth in 18 Pa.C.S.A. § 6109(e) which could have precluded Appellant from being eligible to carry a firearm. In sum, there exists insufficient evidence to support a misdemeanor grading, whereas the requisite elements of the felony offense are a matter of record, and expressly conceded by Appellant in his guilty plea.
(Id.). We agree with the trial court's interpretation of the applicable statutes.
¶ 5 Initially, we note that Appellant is challenging the legality of his sentence. See Commonwealth v. Tustin, 888 A.2d 843, 845 (Pa.Super. 2005) (). Accordingly, Appellant did not waive these issues by failing to file post-sentence motions. See id.
¶ 6 Our scope of review of the trial court's statutory construction is plenary. Commonwealth v. Bavusa, 574 Pa. 620, 632, 832 A.2d 1042, 1049 (2003); Commonwealth v. Fedorek, 913 A.2d 893, 896 (Pa.Super. 2006) (en banc). We are guided in our review by the Statutory Construction Act,2 Id. at 897-98 (citations omitted). Additionally, "[l]egislative intent can only be derived by reading all sections of the statute together and in conjunction with each other and construed with reference to the entire statute." Id. at 898 (citation omitted).
¶ 7 As previously explained by our Supreme Court:
In 1997, the Pennsylvania General Assembly amended Section 6106 of the Uniform Firearms Act (codified in the Crimes Code at 18 Pa.C.S. §§ 6101-6126), which had previously graded as a felony of the third degree the act of carrying a firearm without a license. The amendment provided for grading of that same conduct as a misdemeanor of the first degree in certain circumstances-specifically, in circumstances where the person was "otherwise eligible" for licensure and the person had not "committed any other criminal violation."
Bavusa, supra at 623, 832 A.2d at 1043 (quoting 18 Pa.C.S.A. § 6106(a)). The relevant section of the Crimes Code provides:
§ 6106. Firearms not to be carried without a license
(a) Offense defined.—
(1) Except as provided in paragraph (2), ... any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.
(2) A person who is otherwise eligible to possess a valid license under this chapter but ... carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license and has not committed any other criminal violation commits a misdemeanor of the first degree.
18 Pa.C.S.A. § 6106(a) (emphasis added).
¶ 8 In Bavusa, supra, the Court concluded that "the amendatory factors providing for the lesser grading of a Section 6106 offense as a misdemeanor — license eligibility and non-commission of other criminal violations — were intended to be sentencing factors, not a new element of the felony offense and not an affirmative defense." Id. at 624, 832 A.2d at 1044. The high court left the determination of which party has the burden of proving the proper grading for another day,3 but did, however, provide the following guidance:
When the disqualifying factor is another criminal violation, it is unlikely that assigning a burden of proof would matter: there is either a disqualifying criminal violation or there is not. Such is the controlling situation here. With respect to license eligibility/ineligibility, however, the potential disqualifying factors are more numerous and more difficult of proof. The parties appear to agree that if this Court determines that a sentencing factors reading is the appropriate one, then the Commonwealth bears the burden of proof at sentencing by a preponderance of the evidence. But we are not so easily convinced that such was the intent of the General Assembly. Many of the license-disqualifying factors are very personal to the defendant and he certainly is in the better position to produce evidence on the...
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