Commonwealth v. Stein

2012 PA Super 26

39 A.3d 365

COMMONWEALTH of Pennsylvania, Appellee

v.Paul Leonard STEIN, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 12, 2012.Filed Feb. 7, 2012.

Timothy P. Wile, Norristown, for appellant.

Risa V. Ferman, Assistant District Attorney, Robert M. Falin, Assistant District Attorney, John E.D. Larkin, Assistant District Attorney, Norristown, for Commonwealth, appellee.

BEFORE: STEVENS, P.J., BENDER and DONOHUE, JJ.

OPINION BY DONOHUE, J.:

Paul Leonard Stein (“Stein”) appeals from the judgment of sentence entered on May 24, 2011 by the Court of Common Pleas, Montgomery County. We affirm.

The facts of this case are not in dispute, and were aptly summarized by the trial court as follows:

On January 28, 2011, Stein pled guilty to one count of delivery of marijuana and one count of possession with the intent to deliver marijuana.¹ At the guilty plea hearing, during which Stein was unequivocally advised of the five-year mandatory minimum sentence, Stein specifically admitted that: (a) on September 8, 2010 he delivered approximately one pound of marijuana to an undercover police officer within 100 feet of Cheltenham High School; (b) upon his arrest, police seized a Smith and Wesson .9mm revolver and $1,500 in marked currency from his person; and (c) on the same date, police executing a search warrant at Stein's residence found additional marijuana, firearms and a bulletproof vest.

Based on these facts, Stein entered into an open guilty plea to two counts of possession with the intent to deliver marijuana, in exchange for the Commonwealth's promise to: (a) nol prosse the remaining charges; (b) not seek the school zone sentencing enhancement; and (c) not seek to have the Court sentence Stein to consecutive sentences. It was made clear to Stein, however, that the Commonwealth would seek a mandatory minimum five-year sentence on the delivery count, based on the fact that he was carrying a gun at the time of the offense.

The Commonwealth timely filed its Notice of Intent to Seek Mandatory Sentence, again advising Stein of its intent to seek the mandatory minimum term of five years for certain drug offenses committed with firearms, pursuant to 42 Pa.C.S. § 9712.1. At sentencing on May 24, 2011, the [c]ourt determined that on September 8, 2010, Stein was in possession of a Smith & Wesson .9 mm [sic] revolver when he engaged in a controlled sale of marijuana to undercover officers. Accordingly, the undersigned recognized that the aforementioned mandatory minimum was applicable and sentenced Stein to a flat five year term,[¹ in accordance with the parties' agreement.

1 35 P.S. § 780–113(a)(30).Trial Court Opinion, 9/28/11, at 1–2 (record citations omitted).

Stein did not file post-sentence motions. He filed a timely notice of appeal on June 17, 2011, and he complied with the trial court's order for a concise statement pursuant to Pa.R.A.P.1925(b). He raises the following issues for our review:

[1.] Is the mandatory sentence set forth in 42 Pa.C.S. § 9712.1 applicable to situations where a defendant, who is convicted of violating 35 P.S. § 780–113(a)(30), is licensed to carry a firearm and the firearm is not used nor involved with the defendant's underlying drug offense?

[2.] Is 42 Pa.C.S. § 9712.1 unconstitutionally overbroad where it is applied to persons who legally possess a firearm that is not involved with the commission of a drug offense and thereby punishes constitutionally-protected conduct?

Stein's Brief at 4.

As his first issue on appeal, Stein questions the applicability of the mandatory sentence set forth in section 9712.1 to his case. “A challenge to the application of a mandatory minimum sentence is a challenge to the legality of the sentence. Our review of an illegal sentence is plenary and if no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction.” Commonwealth v. Carpio–Santiago, 14 A.3d 903, 905 (Pa.Super.2011). As long as the Court has jurisdiction over the matter, a legality of sentencing issue is reviewable and cannot be waived. ² Commonwealth v. Stokes, 38 A.3d 846, 857–58 (Pa.Super.2011).

Stein asserts that the fact that he legally possessed the firearm in question at the time of his arrest on drug trafficking charges removes him from the ambit of section 9712.1 Stein's Brief at 15. Citing principles of statutory construction, he argues that because he did not use the firearm in any respect when committing the underlying crime of drug delivery, the offense was not “committed with” a firearm, as the title of section 9712.1 requires. Id. at 17–21.

The trial court found that because Stein was convicted of violating subsection (a)(30) of The Controlled Substance, Drug, Device and Cosmetic Act and he was in physical possession of a firearm at the time he committed the offense, it was without discretion to sentence Stein to anything other than the mandatory minimum of five years of imprisonment required by section 9712.1. Trial Court Opinion, 9/28/11, at 6. The trial court states that because the statute does not distinguish between licensed and unlicensed firearms, and expressly states that the mandatory sentence applies whether the firearm is visible or concealed during the commission of the crime, Stein's arguments are meritless. Id. at 7–8.

Section 9712.1 states, in relevant part:

§ 9712.1. Sentences for certain drug offenses committed with firearms

(a) Mandatory sentence.—Any person who is convicted of a violation of section 13(a)(30) of [...] The Controlled Substance, Drug, Device and Cosmetic Act, when at the time of the offense the person or the person's accomplice is in physical possession or control of a firearm, whether visible, concealed about the person or the person's accomplice or within the actor's or accomplice's reach or in close proximity to the controlled substance, shall likewise be sentenced to a minimum sentence of at least five years of total confinement.

* * *

(d) Authority of court in sentencing.—There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section.

42 Pa.C.S.A. § 9712.1(a), (d) (emphasis added) (footnote omitted). A “firearm” is defined as “[a]ny weapon, including a starter gun, which will or is designed to or may readily be converted to expel a projectile by the action of an explosive or the expansion of gas therein.” 42 Pa.C.S.A. §§ 9712.1(f), 9712(e) (emphasis added).

“The basic tenet of statutory construction requires a court to construe words of the statute according to their plain meaning.” Commonwealth v. Corban Corp., 909 A.2d 406, 411 (Pa.Super.2006), aff'd, 598 Pa. 459, 957 A.2d 274 (2008). “Words and phrases shall be construed according to rules of grammar and according to their common and approved usage[.]” 1 Pa.C.S.A. § 1903. “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b).

The statute in question is clear and unambiguous. It requires that a minimum sentence of five years of imprisonment be applied if (1) the defendant is convicted of 35 P.S. 780–113(a)(30) and (2) either the defendant or his accomplice was in possession or control of a firearm, the firearm was within the defendant's or his accomplice's reach, or a firearm was in close proximity to the drugs in question. As indicated above, a firearm is “any weapon,” not only an illegally possessed weapon. It does not matter if the individual possesses a license to carry the firearm—the possession of a firearm without a license is a separate offense and is separately punishable under the law. See 18 Pa.C.S.A. § 6106(a).

Furthermore, the statute expressly does not require that the firearm actually be used in the commission of the drug offense. It need only be on the defendant's or his accomplice's person or in the defendant's or his accomplice's control, within the defendant's or his accomplice's reach, or in close proximity to the drugs. See 42 Pa.C.S.A. § 9712.1(a). Stein argues that the title of the statute “must be considered when construing the statute,” and the title of section 9712.1 requiring that the drug offense be committed “with firearms” means there must be “some sort of nexus established between the drug trafficking activity and the firearm found.” Stein's Brief at 20. First, although section 1924 permits consideration of the title of the statute when construing the meaning of a statute, it is by no means required. See 1 Pa.C.S.A. § 1924.³ As we have previously stated: “[T]he title is always a part of a statute or ordinance and, as such, may be considered in construing the enactment, but it is in no sense conclusive, particularly when there is no ambiguity in the body of the statute or ordinance itself.” Commonwealth v. Campbell, 758 A.2d 1231, 1237 (Pa.Super.2000).

Moreover, we disagree with Stein's interpretation of the title of section 9712.1. The phrase “with firearms” in the title of the statute does not necessarily mean that the firearms were used in the commission of the offense. Rather, we interpret it to mean that the drug offense was committed with a firearm present—an interpretation that is fully supported by the plain language of the statute itself, as it merely requires that there be a firearm on or near a person involved in the commission of the crime or in close proximity to the drugs in question.⁴ See Commonwealth v. Sanes, 955 A.2d 369, 377 (Pa.Super.2008) (concluding that a defendant was subject to the mandatory minimum...