Commonwealth v. Dixon

53 A.3d 839

2012 PA Super 188

COMMONWEALTH of Pennsylvania, Appellee

v.Bryan Lynn DIXON, Appellant.

Superior Court of Pennsylvania.

Submitted May 29, 2012.

Filed Sept. 7, 2012.

Patrick J. Connors, Media, for appellant.

John J. Whelan, Assistant District Attorney, Media, for Commonwealth, appellee.

BEFORE: MUSMANNO and BOWES, JJ., and McEWEN, P.J.E.

OPINION BY BOWES, J.:

Bryan Lynn Dixon appeals his November 17, 2011 judgment of sentence imposed following entry of a plea of guilty to possession with intent to deliver (“PWID”) (marijuana) and possession of drug paraphernalia. The sentencing court applied the two-year mandatory minimum sentence for drug offenses committed within 1,000 feet of a school to Appellant's conduct, which occurred within that radius of a daycare facility. See18 Pa.C.S. § 6317. The Banks Group Daycare “fell squarely” within the definition of “school” approved in Commonwealth v. Lewis, 885 A.2d 51 (Pa.Super.2005), according to the sentencing court. After careful review, we vacate Appellant's sentence and remand for resentencing.

On August 4, 2009, at approximately 2:00 p.m., based upon a report of drug trafficking at 1908 West Fourth Street supplied by a confidential informant, City of Chester police officers arrested Appellant shortly after he exited his residence at that address. Officer Marlowe Freemen, who knew Appellant, asked him if he possessed anything that was improper. Appellant admitted that he had marijuana in his pocket. After a pat down search, Appellant was placed under arrest. After being apprised of his Miranda rights, Appellant consented to the search of his residence. He thereafter directed the officers to marijuana, bagging materials, and other drug paraphernalia stored there. Appellant's residence was located within 1,000 feet, but not within 250 feet, of the Banks Group Daycare.¹

After litigating an unsuccessful suppression motion, Appellant pled guilty to the aforementioned charges. Prior to sentencing on November 17, 2011, the Commonwealth advised Appellant that it intended to seek the two-year mandatory minimum sentence provided in 18 Pa.C.S. § 6317 for drug offenses occurring within 1,000 feet of a school. The Commonwealth maintained that a daycare facility was indistinguishable from a preschool, and, although not specifically enumerated in the statute, constituted a school within the meaning of the statute.

At sentencing, the following stipulations were placed on the record in lieu of testimony:

ADA: Your Honor, between myself and Mr. Deavor [Defense Counsel], we have arrived at several stipulations. First and foremost, we would stipulate that at the time of this offense there was an institution called the Banks Group Daycare located at 2002 West Fourth Street in the city of Chester at the time of this incident. Is that correct, Mr. Deavor?

Defense Counsel: Correct.

ADA: That that institution was open at the time and that the arrest of the Defendant took place within the 1,000 feet of that institution and he had the drugs on him at that time. Is that correct?

Defense Counsel: That's correct.

ADA: Additionally, Your Honor, counsel is stipulating that the Banks Group Daycare is a state-certified ...

....

ADA: That it is a—it's state-certified by the Department of Welfare, that there are children who attend this daycare ages 0 to 13 years, and by 0, I mean infants in months, up to and including 13 years of age, and that the day-to-day activities of this daycare are—include, but are not limited to, age-appropriate learning letters, numbers, writing their name, and appropriate classroom behavior or facility behavior.

The Court: All right.

ADA: Additionally ...

Defense Counsel: Appropriate behavior, not appropriate classroom behavior.

The Court: All right.

Defense Counsel: Just leave it at that. I don't think there are classrooms at the facility.

ADA: Additionally, Your Honor, I, in exchange for that stipulation, am stipulating that there are not state-certified teachers at the facility and that it is not—if Ms. Robinson were asked, she does not characterize the facility as a preschool.

The Court: But it has to be certified by the state, right?

ADA: It is certified by the state, the Department of Welfare.

N.T., 11/17/11, at 8–10. In summary, Appellant was arrested for possession of marijuana within 1,000 feet of the Banks Group Daycare, a facility certified by the Department of Welfare and attended by children ages 0 to 13 years. There were no state-certified teachers at the facility, and that if its director, Ms. Robinson, were asked, she did not “characterize the facility as a preschool,” but the children at the facility engaged in age-based educational activities on a daily basis. Id. at 10.

Based on the evidence and argument presented, the sentencing court held that the daycare was a “school” for purposes of the drug-free school zone statute and the two-year mandatory minimum sentence applied. The court sentenced Appellant to thirty to sixty months incarceration for PWID, and six to twelve months imprisonment on the possession of drug paraphernalia to run concurrent to the other sentence. By stipulation entered December 12, 2011, Appellant's minimum sentence was reduced to twenty-two and one-half months due to his Recidivism Risk Reduction Incentive Act (“RRRI”) eligibility.²

Appellant timely filed post-sentence motions, which were denied on November 30, 2011, and he appealed to this Court on December 28, 2011. After Appellant complied with the court's order to file a Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal, the trial court issued its opinion and the matter is ripe for our review. Appellant raises one issue for our consideration:

Whether the Sentencing Court erred when it misapplied 18 Pa.C.S. 6317, 204 Pa.Code 303.10, (the youth/school enhancement) and 61 Pa.C.S. 4505(c)(2), thereby violating Appellant's United States and Pennsylvania constitutional, statutory and common law rights?

Appellant's brief at 4.

Application of a mandatory sentencing provision implicates the legality, not the discretionary, aspects of sentencing. Commonwealth v. Foster, 609 Pa. 502, 17 A.3d 332 (2011). In reviewing the trial court's interpretation of statutory language, we are mindful of the well-settled rule that “[s]tatutory interpretation implicates a question of law.” Commonwealth v. Gonzalez, 10 A.3d 1260, 1261–1262 (Pa.Super.2010). Thus, our scope of review is plenary, and our standard of review is de novo. Commonwealth v. Van Aulen, 952 A.2d 1183, 1184 (Pa.Super.2008).

Appellant argues that the sentencing court erred in applying the two-year mandatory minimum sentence, specifically 18 Pa.C.S. § 6317(b), which is applicable to certain drug offenses committed “within 1000 feet of a public, private, or parochial school or a college or university.” He contends that the Banks Group Daycare is not a school within the meaning of § 6317. We agree for the reasons that follow.

In determining the meaning of a statute, we are obliged to consider and give effect to the intent of the legislature. Courts may disregard the statutory construction rules only when the application of such rules would result in a construction inconsistent with the manifest purpose of the General Assembly. Commonwealth v. Marion, 981 A.2d 230, 242 (Pa.Super.2009). As with all issues involving statutory interpretation, we must refer to the Statutory Construction Act, 1 Pa.C.S. § 1901–1991. Section 1921 provides in pertinent part:

(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.

(b) 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.

(c) When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:

(1) The occasion and necessity for the statute.

(2) The circumstances under which it was enacted.

(3) The mischief to be remedied.

(4) The object to be attained.

(5) The former law, if any, including other statutes upon the same or similar subjects.

(6) The consequences of a particular interpretation.

(7) The contemporaneous legislative history.

(8) Legislative and administrative interpretations of such statute.

1 Pa.C.S. § 1921.

We are also mindful of the premise that “when the legislature adopts a statute it does so with full knowledge of existing statutes relating to the same subject,” and that “statutes or parts of statutes that relate to the same persons or things or to the same class of persons or things are to be construed together, if possible.” Commonwealth v. Hansley, 994 A.2d 1150, 1152–1153 (Pa.Super.2010) (quoting Hutskow v. Washowich, 156 Pa.Cmwlth. 655, 628 A.2d 1202, 1207 (1993) and Casiano v. Casiano, 815 A.2d 638, 642 (Pa.Super.2002)).

We turn to the relevant statute, 18 Pa.C.S. § 6317 of the Crimes Code, which provides in pertinent part:

§ 6317. Drug-free school zones

(a) General rule.—A person 18 years of age or older who is convicted in any court of this Commonwealth of a violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L. 233, No. 64 [35 P.S. § 780–113(a)(14) or (30) ] ) known as The Controlled Substance, Drug, Device and Cosmetic Act, shall, if the delivery or possession with intent to deliver of the controlled substance occurred within 1,000 feet of the real property on which is located a public, private or parochial school or a college or university or within 250 feet of the real property on which is located a recreation center or playground or on a school bus, be sentenced to a minimum sentence of at least two years of total confinement, notwithstanding any other provision of this title, The Controlled Substance, Drug, Device and Cosmetic Act or other statute to the contrary....

....

(b...