Commonwealth v. Ramsey

214 A.3d 274

COMMONWEALTH of Pennsylvania, Appellee

v.Edward Glenn Terrel RAMSEY, Appellant

No. 1046 WDA 2018

Superior Court of Pennsylvania.

Submitted May 14, 2019

Filed July 2, 2019

Stephanie M. Noel, Public Defender, Pittsburgh, for appellee.

Kevin F. McCarthy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

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

OPINION BY BENDER, P.J.E.:

Appellant, Edward Glenn Terrel Ramsey, appeals from the judgment of sentence imposed after he pled guilty to one count of possession with intent to deliver a controlled substance (PWID), and one count of delivery of a controlled substance. On appeal, Appellant challenges the legality and discretionary aspects of his sentence. After careful review, we vacate Appellant's judgment of sentence and remand for resentencing.

Appellant's convictions stemmed from his single sale, to an undercover police officer, of a compound mixture containing detectable amounts of heroin and fentanyl. On March 13, 2018, Appellant pled guilty to the above-stated offenses. He was initially sentenced on June 5, 2018, to a term of 3 to 6 years' incarceration. However, on June 8, 2018, the court sua sponte vacated Appellant's sentence and resentenced him to a term of 2 to 4 years' incarceration for his PWID offense and a concurrent 6 years' probation for his delivery conviction. ¹

The court also deemed Appellant eligible for the Recidivism Risk Reduction Incentive Act, 61 Pa.C.S. §§ 4501 - 4512.

Appellant filed a timely post-sentence motion, which was denied. He then filed a timely notice of appeal, and he also timely complied with the trial court's order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The trial court filed its Rule 1925(a) opinion on October 11, 2018. Herein, Appellant presents two questions for our review, which we have reordered for ease of disposition:

I. Did the trial court violate [Appellant's] double jeopardy and due process rights under the United States and Pennsylvania Constitutions by separately sentencing him on two counts of [d]elivery of a [c]ontrolled substance where one single compound containing detectable amounts of both heroin and fentanyl was delivered; where a single criminal act of delivery occurred; and where the specific kind of controlled substance relates only to the applicable Offense Gravity Score [ (OGS) ] and statutory maximum penalty, and not the statutory elements of the offense?

II. Where only the most serious juvenile adjudication of each prior disposition is counted in an individual's Prior Record Score [ (PRS) ] pursuant to 204 Pa. Code § 303.6, did the trial court err by calculating [Appellant's] [PRS] as repeat felony offender [ (RFEL) ] where [Appellant's] criminal record was comprised of two juvenile adjudications for [b]urglary[,] but where one such adjudication was an adjudication without disposition?

Appellant's Brief at 5.²

In Appellant's first issue, he argues that the trial court violated his double jeopardy protections under the United States and Pennsylvania Constitutions by separately sentencing him for two drug offenses that arose from a single delivery of a compound mixture containing inseparable controlled substances.³ Alternatively, he insists that his sentences for both drug offenses under section 780-113(a)(30) are illegal because those convictions must merge for sentencing purposes.⁴

In support of his arguments, Appellant directs our attention to Commonwealth v. Farrow , 168 A.3d 207 (Pa. Super. 2017). There, Farrow was charged, convicted, and sentenced for three counts of driving under the influence (DUI) - general impairment pursuant to 75 Pa.C.S. § 3802(a)(1). Id. at 213. For two of those counts, the Commonwealth added a penalty enhancement under 75 Pa.C.S. § 3804. Id. The Farrow panel recognized that in Commonwealth v. Mobley , 14 A.3d 887 (Pa. Super. 2011), our Court held "that the provisions found in [ section] 3804 were not elements of DUI offenses and ‘delineate[ only] the applicable penalties to which a defendant is subject when convicted of DUI.’ " Farrow , 168 A.3d at 216 (quoting Mobley , 14 A.3d at 894 ). Accordingly, we held "that, pursuant to the guidance supplied in Mobley , the trial court violated [Farrow's] protection against double jeopardy" by "impos[ing] three separate sentences at three counts that each alleged, at bottom, a single criminal act in violation of the same criminal statute." Id.

The same is true in the instant case. Appellant received separate sentences for two counts that each alleged, at bottom, a single criminal act in violation of section 780-113(a)(30). Each count pertained to a different controlled substance. However, as Appellant observes, "there is nothing in the plain language of [s]ection 780-113(a)(30) that states that the particular drug delivered is an element of the offense — all that is required is that a controlled substance is delivered." Appellant's Brief at 34. Rather, the specification of the particular drug delivered "relates only to the OGS and the maximum possible penalties for violating the Drug Act." Id. (citing 204 Pa. Code § 303.15 (assigning an offense gravity score to each offense and subcategorizing (a)(30) offenses by type (or schedule) of substance and weight)); see also 35 P.S. §§ 780-113(f), (n), (o) (stating the grading and maximum penalties for particular schedules of substances).

Moreover, our decision in Commonwealth v. Swavely , 382 Pa.Super. 59, 554 A.2d 946 (1989), on which the trial court solely relies, does not convince us that Appellant's separate sentences are constitutionally permissible. There, Swavely committed one drug delivery of two different types of prescription pills contained in the same vial. Id. at 949. For this act, he was convicted and separately sentenced for two counts of delivery under section 780-113(a)(30). Id. In affirming Swavely's sentences, we stressed that he had delivered two separable substances and, therefore, "two separate offenses occurred, and sentencing on both offenses did not violate the Double Jeopardy Clause of the Fifth Amendment." Id. Importantly, the Swavely panel explicitly distinguished Swavely's delivery of two different, and completely separable, pills from "the delivery of a mixture or compound, in a single unit, containing a detectable amount of more than one controlled substance." Id. at 951. Accordingly, Swavely does not control in the present case. Rather, following the rationale of Farrow , we conclude that the trial court violated Appellant's protection against double jeopardy by imposing separate sentences for convictions that stemmed from his single sale of a compound substance containing inseparable controlled substances.

We also agree with Appellant — as does the Commonwealth — that his two convictions must at least merge for sentencing purposes. Our General Assembly has directed that,

[n]o crimes shall 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. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.

42 Pa.C.S. § 9765. "The statute's mandate is clear. It prohibits merger unless two distinct facts are present: 1) the crimes arise from a single criminal act; and 2) all of the statutory elements of one of the offenses are included in the statutory elements of the other." Commonwealth v. Baldwin , 604 Pa. 34, 985 A.2d 830, 833 (2009).

Here, Appellant was convicted of two offenses that are both defined by the same provision:

(30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.

35 P.S. § 780-113(a)(30). Appellant convincingly contends that, "under a very simple merger analysis, [his] delivery of the compound containing detectable amounts of both heroin and fentanyl [arose] from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense; indeed, the statutory elements are identical." Appellant's Brief at 34-35. Moreover, our Court has previously recognized the crime of PWID as a lesser-included offense of delivery of a controlled substance. See Commonwealth v. Eicher , 413 Pa.Super. 235, 605 A.2d 337, 353 (1992) (stating that "[t]he crime of possession with the intent to deliver ... has been recognized to be a lesser included offense of the crime of delivery of a controlled substance") (citing Commonwealth v. Edwards , 302 Pa.Super. 522, 449 A.2d 38, 39 (Pa. Super. 1982) ). Thus, in addition to violating double jeopardy protections, it is clear that Appellant's separate sentences are illegal because his convictions must merge for sentencing purposes. Accordingly, we vacate Appellant's sentences and remand for resentencing.

Despite this disposition, we must address Appellant's second issue challenging the trial court's calculation of his PRS, as it will afford clarity to the trial court at resentencing. Initially, we observe that this claim constitutes a challenge to the discretionary aspects of Appellant's sentence. See Commonwealth v. Spenny , 128 A.3d 234, 241 (Pa. Super. 2015) (citation omitted).

[S]uch challenges are not subject to our review as a matter of right. "An appellant must satisfy a four-part test to invoke this Court's jurisdiction when challenging the discretionary aspects of a sentence," by (1) preserving the issue in the court below, (2) filing a timely notice of appeal, (3) including a statement pursuant to Pa.R.A.P. 2119(f) (" Rule 2119(f) statement") in his brief on appeal, and (4) raising a

...