Summary
In Commonwealth v. Kinsley, 133 Mass. 578, where a license to operate a pool table had been revoked, it was said at page 579, "Such a license is not a contract, and a revocation of it does not deprive the defendant of any property, immunity or privilege within the meaning of these words in the Declaration of Rights, art. 12."
Summary of this case from Clarke v. Board of Collegiate AuthorityOpinion
J-S72018-17 No. 1607 EDA 2017
01-18-2018
COMMONWEALTH OF PENNSYLVANIA v. JAMES EARL KINSLEY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order April 18, 2017 in the Court of Common Pleas of Delaware County, Criminal Division at No(s): CP-23-CR-0000053-2014 BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS, P.J.E. MEMORANDUM BY MUSMANNO, J.:
Former Justice specially assigned to the Superior Court.
James Earl Kinsley ("Kinsley") appeals from the Order dismissing his first Petition filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
See 42 Pa.C.S.A. §§ 9541-9546.
In its Opinion, the PCRA court set forth its findings of fact, which we adopt for the purpose of this appeal. See PCRA Court Opinion, 4/18/17, at 1-5.
Kinsley did not file a direct appeal. On June 12, 2015, Kinsley, pro se, filed the instant, timely PCRA Petition. The PCRA court appointed counsel, who filed an amended Petition, asserting therein that (1) Kinsley's sentence was illegal, as his convictions for criminal attempt-involuntary deviate sexual intercourse ("IDSI") (person less than 16 years of age) and criminal solicitation-IDSI (forcible compulsion) should have merged; and (2) Kinsley's trial counsel was ineffective for failing to detect the error. On March 21, 2017, the PCRA court conducted a hearing on the Petition. On April 18, 2017, the PCRA court issued its Order dismissing the Petition. This timely appeal followed.
On appeal, Kinsley raises the following issue for our review: "Whether the PCRA [c]ourt erred in [dismissing Kinsley's] PCRA [P]etition where the record clearly showed that [Kinsley's] sentences for the convictions for [c]riminal [a]ttempt-IDSI [(p]erson [l]ess than 16 [y]ears of [a]ge[)], 18 Pa.C.S.[A.] § 901(a)[,] and [c]riminal [s]olicitation-I[DS]I [(f]orcible [c]ompulsion[)], 18 Pa.C.S.[A.] § 902(a)[,] are illegal sentences because these offenses merge?" Brief for Appellant at 4.
We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court's decision on any grounds if the record supports it. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary.Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted).
Kinsley contends that he received two sentences for the same criminal act, in violation of 18 Pa.C.S.A. § 906. Brief for Appellant at 11. Kinsley asserts that he "understood that he was entering a plea to only one victim." Id. Kinsley claims that "the [PCRA] court erred in determining that there were two different criminal episodes[,] where there is nothing in the guilty plea hearing to support that finding." Id.
Section 906 provides that "[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.A. § 906. --------
In its Opinion, the PCRA court addressed Kinsley's issue, set forth the relevant law, and determined that the convictions were not subject to merger under section 906 because Kinsley knowingly and intelligently plead guilty to criminal attempt-IDSI (person less than 16 years of age) in relation to one victim, and plead guilty to criminal solicitation-IDSI (forcible compulsion) in relation to a different victim. See PCRA Court Opinion, 4/18/17, at 5-10; see also id. at 10 (wherein the PCRA court determined that "[t]he record is clear that [Kinsley] was fully appraised by his attorney[,] and knew that there were two separate episodes, two separate informations/two cases[,] and that [Kinsley] had negotiated one resolution."). We agree with the reasoning of the PCRA court, which is supported by the record and free of legal error, and affirm on this basis. See id.; see also PCRA Court Opinion, 6/2/17, at 3 (wherein the PCRA court explained that Kinsley's "inchoate crimes were not designed to commit or to culminate in the same crime[, because] they were separate crimes of sexual abuse of children, as they involved separate dates and different perceived victims.").
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/18/18
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