Commonwealth v. Baldwin

COMMONWEALTH OF PENNSYLVANIA Appellee v. JASON R. BALDWIN Appellant

J-A10029-17

No. 1643 EDA 2016

SUPERIOR COURT OF PENNSYLVANIA

OCTOBER 24, 2017

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence dated April 13, 2016

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0009629-2012

BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SOLANO, J.:

Appellant, Jason R. Baldwin, appeals from the judgment of sentence imposed after he pled guilty to burglary, attempted burglary, and criminal conspiracy.¹ We affirm in part and vacate in part.

The trial court recited the factual and procedural background of this case as follows:

[Appellant] engaged in seven separate residential burglaries over the course of several days in July 2012 across Montgomery, Berks and Chester Counties. He, along with at least one co-conspirator, succeeded in stealing valuables from the residences, with the exception of one incident when the attempt to burglarize a residence failed.

[Appellant] was charged with more than 40 counts related to the incidents. He ultimately agreed to enter an open guilty plea to one count of burglary, one count of criminal conspiracy to commit burglary and one count of attempted burglary. Inexchange, the Commonwealth agreed to nol pros the remaining charges and to a cap of four to eight years of incarceration.

At a subsequent sentencing hearing, the Commonwealth advised this court of an error in the Pre-Sentence Investigation Report related to the calculation of [Appellant's] prior record score. [Appellant] did not object to the recalculation of the standard-ranges of 24 to 30 months in prison for the burglary offense and 21 to 27 months in prison each for the attempted burglary and conspiracy offenses. The Commonwealth also informed this court, without objection, that the burglary and attempted burglary convictions did not merge for purposes of sentencing because the offenses stemmed from different residences. Finally, the Commonwealth and [Appellant] agreed to the amount of restitution for the seven burglaries.

This court sentenced [Appellant] on April 13, 2016, to two to four years in prison for the burglary conviction and a consecutive term of two to four years in prison for the attempted burglary conviction. [Appellant] received a sentence of 10 years of consecutive probation for the conspiracy conviction. This court also signed the agreed-upon restitution sheets submitted by the Commonwealth.

[Appellant] filed a pro se "Motion for Reconsideration" on April 22, 2016, seeking to have his sentences run concurrently. This court denied the motion in an Order docketed on May 9, 2016.

Trial Court Opinion, 8/15/16, at 1-3 (citations to notes of testimony omitted). Appellant filed this timely appeal. He presents three issues for our review:

1. Did the [trial court] err and/or abuse his discretion in failing to merge all appropriate charges?

2. Did the [trial court] err and/or abuse his discretion by imposing a sentence without using the correct prior record score?

3. Did the [trial court] err and/or abuse his discretion by failing to order the correct amount of restitution?

Appellant's Brief at 2-3.

Merger

In his first issue, Appellant argues that the court erred by failing to merge his sentences for conspiracy to commit burglary and attempted burglary.² Appellant's Brief at 5. Appellant cites 18 Pa.C.S. § 906, which provides:

A person may not be convicted of more than one of the inchoate crimes of criminal attempt, criminal solicitation or criminal conspiracy for conduct designed to commit or to culminate in the commission of the same crime.

18 Pa.C.S. § 906 (emphasis added). Appellant acknowledges that he committed multiple crimes, stating, "there were seven burglaries and one attempted burglary, all of which involved a coconspirator." Appellant's Brief at 9. Appellant argues that he was wrongly sentenced "to two inchoate crimes" because "the conduct was designed to commit or to culminate in the commission of the same crime, namely burglary, [and] the sentences imposed on the attempted burglary and conspiracy conviction must merge for sentencing purposes." Id. at 5, 9. We disagree.

In Commonwealth v. Gallagher, 491 A.2d 196 (Pa. Super. 1985), we explained:

A defendant may not be convicted of more than one inchoate offense designed to commit or to culminate in thecommissionof the same crime. 18 Pa.C.S. § 906. . . . [T]he purpose of Section 906 [i]s to eliminate the conviction for more than one offense in the preparation to commit the objective, that is, where the offenses were designed to culminate in the commission of only one crime.

491 A.2d at 198 (bolded emphasis added, italicized emphasis in original, citations and quotation marks omitted). It is well-settled that convictions do not merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. See 42 Pa.C.S. § 9765; Commonwealth v. Raven, 97 A.3d 1244, 1249 (Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014). For example, conspiracy and attempted burglary were found to merge in Commonwealth v. Brown, 486 A.2d 441, 443-445 (Pa. Super. 1985), where the appellant participated in a single scheme to burglarize a single house.

Here, although Appellant's conduct related to commission of the same type of crime (burglary), he participated in seven burglaries of seven different houses and one additional attempted burglary of an eighth house.³ He pled guilty to conspiracy and was sentenced to 10 years' probation underCount 9 only with respect to his commission of the seven successfully completed burglaries.⁴ The Criminal Information as to Count 9 states that Appellant, "with the intent of promoting or facilitating the commission of the crime(s) of BURGLARY[,] unlawfully and feloniously agreed with GREGORY LEE EAGLE that they or one of more of them would engage in conduct which would constitute such crime(s), and did an overt act in furtherance thereof." Criminal Information, 2/1/13, at 2. Count 9 thus addressed Appellant's conspiracy to commit the completed "crime(s) of BURGLARY," and not the different crime of attempted burglary that was separately charged in Count 8 of the Criminal Information. Appellant entered his guilty plea as follows:

[COMMONWEALTH]: [Appellant], you understand by pleading guilty you are admitting certain things about your case are true?

[APPELLANT]: Yes.

[COMMONWEALTH]: Specifically, sir, by pleading guilty you are admitting that between July 13^th and July 16^th of 2012 across Montgomery, Berks and Chester County you engaged, sir, in seven separate burglaries, which you broke into residentialproperties with the intent and actually successfully intended to steal various valuables from inside?

[APPELLANT]: Yes.

[COMMONWEALTH]: As well as conspiring with at least one other person to effectuate these crimes?

[APPELLANT]: Yes.

N.T., 7/23/15, at 9 (emphasis added). Accordingly, Appellant's argument that his conviction of conspiracy should have merged with his conviction of attempted burglary fails because Appellant pled guilty to conspiracy to commit the completed crime of burglary with respect to seven houses, which were separate from an eighth house which Appellant unsuccessfully attempted to burglarize.

Our Supreme Court, in recently holding that Section 906 does not bar multiple convictions for the same inchoate crime, noted that "Pennsylvania Courts have applied this provision in situations where a defendant commits two or three inchoate offenses while preparing to commit a single underlying crime." Commonwealth v. Kingston, 143 A.3d 917, 923 (Pa. 2016) (emphasis added). In dicta, the Court stated:

It is not difficult to imagine why the General Assembly would proscribe multiple convictions for distinct inchoate offenses in circumstances where a defendant's conduct was designed to culminate in the commission of a single underlying crime.

Id. at 925 (emphasis added). In the present case, Appellant admitted to, and was convicted of conspiracy to commit, burglary relating to the seven successful and completed burglaries, and also admitted to attempting toburglarize an eighth house. Accordingly, Appellant's merger argument lacks merit.

Prior Record Score

Appellant's next issue, concerning the court's calculation of his prior record score, challenges the discretionary aspects of Appellant's sentence.⁵ The entry of an open guilty plea does not preclude a petition for allowance of an appeal to this Court of the discretionary aspects of a sentence subsequently imposed. Commonwealth v. Luketic, 162 A.3d 1149, 1159 (Pa. Super. 2017), citing Commonwealth v. Dalberto, 648 A.2d 16, 20 (Pa. Super. 1994), appeal denied, 540 Pa. 594, 655 A.2d 983, cert. denied, 516 U.S. 818, 116 S.Ct. 75, 133 L.Ed.2d 34 (1995). However, there is no automatic right to appeal such an issue, and appellate review depends on whether the appellant satisfies the requirements for a petition by allowance. Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014) (citation omitted), appeal denied, 95 A.3d 275 (Pa. 2014); Commonwealth v. Haynes, 125 A.3d 800, 806-07 (Pa. Super. 2015), appeal denied, 140 A.3d 12 (Pa. 2016). We will exercise our discretion to consider such a petition only if (1) the appellant has filed a timely notice ofappeal; (2) he has preserved the sentencing issue at the time of sentencing or in a motion to reconsider and modify his sentence; (3) he presents the issue in a properly framed statement in his brief under Rule 2119(f) of the Rules of Appellate Procedure pursuant to Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987); and (4) in the words of Section 9781(b), "it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter." See Haynes, 125 A.3d at 807; Commonwealth v. Zelinski, 573 A.2d 569, 574-75 (Pa. Super....