J-A10029-17 No. 1643 EDA 2016
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.:
18 Pa.C.S. §§ 3502(a), 901(a), and 903(a)(1), respectively.
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. In
exchange, the Commonwealth agreed to nol pros the remaining charges and to a cap of four to eight years of incarceration.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:
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.
1. Did the [trial court] err and/or abuse his discretion in failing to merge all appropriate charges?Appellant's Brief at 2-3.
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?
In his first issue, Appellant argues that the court erred by failing to merge his sentences for conspiracy to commit burglary and attempted burglary. Appellant's Brief at 5. Appellant cites 18 Pa.C.S. § 906, which provides:
A claim that crimes should have merged for sentencing purposes raises a challenge to the legality of the sentence, which cannot be waived. Commonwealth v. Williams , 980 A.2d 667, 672 (Pa. Super. 2009), appeal denied , 990 A.2d 730 (Pa. 2010).
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 the
commission of 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. He pled guilty to conspiracy and was sentenced to 10 years' probation under Count 9 only with respect to his commission of the seven successfully completed burglaries. 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:
Appellant was sentenced to 2-4 years' incarceration under Count 1 for the crime of burglary and 2-4 years' incarceration under Count 8 for the crime of attempted burglary. N.T., 4/13/16, at 22-23. At the guilty plea hearing, Appellant expressly acknowledged that with regard to Count 8, he additionally "attempted without success to break into" another property "to commit a burglary." N.T., 7/23/15, at 3, 7, 9. The crimes for which Appellant was sentenced under Counts 1 and 8 therefore clearly were different and do not merge. We do not understand Appellant to argue otherwise.
Appellant does not contend that his sentence for the conspiracy conviction under Count 9 merges with the sentence for the completed burglary that he conspired to commit and for which he was sentenced under Count 1. It is well-settled that "the crime of conspiracy does not merge with the substantive offense that is the subject of the conspiracy." Commonwealth v. Jacquez , 113 A.3d 834, 838 (Pa. Super. 2015). As our Supreme Court has stated, "the law has always considered criminal conspiracy and the completed substantive offense to be separate crimes." Commonwealth v. Miller , 364 A.2d 886, 887 n.5 (Pa. 1976) (referencing the rationale of the United States Supreme Court in Iannelli v. United States , 420 U.S. 770, 778 (1975), that "collective criminal agreement — partnership in crime — presents a greater potential threat to the public than individual delicts" and "the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise").
[COMMONWEALTH]: [Appellant], you understand by pleading guilty you are admitting certain things about your case are true?
[COMMONWEALTH]: Specifically, sir, by pleading guilty you are admitting that between July 13th and July 16th of 2012 across Montgomery, Berks and Chester County you engaged, sir, in seven separate burglaries, which you broke into residential
properties with the intent and actually successfully intended to steal various valuables from inside?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.
[COMMONWEALTH]: As well as conspiring with at least one other person to effectuate these crimes?
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 to burglarize 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. 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 of appeal; (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. 1990), appeal denied , 593 A.2d 419 (Pa. 1990).
Challenges concerning a prior record score calculation implicate the discretionary aspects of sentencing. See Commonwealth v. Sanchez , 848 A.2d 977, 986 (Pa. Super. 2004) (holding that a miscalculation of the prior record score "constitutes a challenge to the discretionary aspects of [a] sentence"); see also Commonwealth v. O'Bidos , 849 A.2d 243, 253 (Pa. Super. 2004) (same), appeal denied , 860 A.2d 123 (Pa. 2004).
Instantly, Appellant filed a timely notice of appeal, preserved his claim that his sentence was excessive in a post-sentence motion, and included a proper Rule 2119(f) statement in his appellate brief. Appellant's Brief at 6. In addition, he has presented a substantial question. Commonwealth v. Janda , 14 A.3d 147, 165 (Pa. Super. 2011) (improper calculation of prior record score raises substantial question). Nonetheless, in his argument, Appellant simply and generally avers - without more - that the court applied the wrong prior record score because "the score before sentencing was a '3' and then it was changed to a '5.'" Appellant's Brief at 11. Appellant does not explain why the prior record score of 5 was incorrect. See id. His argument therefore fails to provide us with a sufficient explanation to enable full appellate review. See Commonwealth v. Cornelius , 856 A.2d 62, 77 (Pa. Super. 2004) (declining to review claim where brief contains limited explanation and development of argument), appeal denied , 895 A.2d 548 (Pa. 2006).
Our review of the record at sentencing reveals the following:
THE COURT: All right. Do [counsel] have any additions or corrections?N.T., 4/13/16, at 3. Neither Appellant nor his counsel objected or otherwise responded to this. Nor did they object when subsequently, in a discussion of standard range sentences, the Commonwealth reiterated, "again, . . . prior record score of 5, . . ." Id. at 5. Although Appellant filed a post-sentence motion claiming that his sentence was excessive, that motion did not specifically discuss any issue relating to his prior record score. Because Appellant did not preserve this issue in the trial court, it is waived.
[COMMONWEALTH]: I do have a correction . . .
THE COURT: Yes, is there another mistake? . . .
[COMMONWEALTH]: I believe that his prior record score is a 5. They had it listed as a 3.
Accordingly, on this record, we find no merit to Appellant's second issue concerning the calculation of his prior record score.
In his third issue, Appellant challenges the court's imposition of restitution, and asserts that it "was an illegal sentence" because "the record fails to contain the factual basis for the amount of restitution ordered." Appellant's Brief at 14. Appellant states that his issue is "not only . . . the amount of restitution, but also the authority of the court to order restitution." Id. at 12. Appellant contends "that the lower court imposed an illegal sentence when it ordered him to pay restitution to the victim in excess of what the victim's [sic] lost." Appellant's Brief at 14.
Both the trial court and the Commonwealth reject Appellant's argument on the basis that Appellant stipulated to the amount of restitution at the sentencing hearing. See Trial Court Opinion, 8/15/16, at 5; Commonwealth Brief at 8. Our review of the record discloses that there was no discussion of restitution at Appellant's guilty plea hearing, N.T., 7/23/15, at 1-12, and at sentencing, the only mention of restitution was the following:
[COMMONWEALTH]: Judge, at the time of sentencing, he agreed that he would stipulate to the restitution for the seven burglaries he is alleged to have committed. And I have submitted restitution sheets to that effect for your signature and I have reviewed them with [Appellant's counsel].N.T., 4/13/16, at 6. In imposing Appellant's sentence, the court added, "[Appellant] is to pay the cost of prosecution and restitution as indicated on the attached stipulated restitution sheets." Id. at 22. However, the amount of restitution was never stated by anyone on the record, and our review of the certified record reveals that it contains no "stipulated restitution sheets."
THE COURT: Do you agree with that, [counsel]?
[APPELLANT'S COUNSEL]: That is correct, Your Honor.
In a recent en banc opinion in which this Court reviewed the propriety of a restitution award, we explained:
In the context of criminal proceedings, an order of restitution is not simply an award of damages, but, rather, a sentence. An appeal from an order of restitution based upon a claim that a
restitution order is unsupported by the record challenges the legality, rather than the discretionary aspects, of sentencing. The determination as to whether the trial court imposed an illegal sentence is a question of law; our standard of review in cases dealing with questions of law is plenary.Commonwealth v. Holmes , 155 A.3d 69, 78 (Pa. Super. 2017) (en banc) (quoted citations omitted). The Commonwealth must prove the amount of restitution to be ordered:
. . .
The court is required to specify the amount of restitution at sentencing, but may modify its order at any time provided that it states its reasons for any modification on the record.
It is the Commonwealth's burden of proving its entitlement to restitution. Commonwealth v. Boone , 862 A.2d 639, 643 (Pa. Super. 2004) (stating that the amount of restitution must be supported by the record). When fashioning an order of restitution, the lower court must ensure that the record contains the factual basis for the appropriate amount of restitution. The dollar value of the injury suffered by the victim as a result of the crime assists the court in calculating the appropriate amount of restitution. The amount of the restitution award may not be
excessive or speculative. It is well-settled that "[a]lthough it is mandatory under section 1106(c) to award full restitution, it is still necessary that the amount of the 'full restitution' be determined under the adversarial system with considerations of due process." Commonwealth v. Ortiz , 854 A.2d 1280, 1282 (Pa. Super. 2004).Commonwealth v . Atanasio , 997 A.2d 1181, 1183 (Pa. Super. 2010) (some citations omitted).
We also stated in Holmes :
When a victim suffers injury to person or property, a sentencing court is mandated under [18 Pa.C.S. §] 1106(a) to enter an order of restitution. Restitution under Section 1106(a), as part of a sentence, is penal in character and is imposed for losses for which a defendant has been held criminally accountable. When restitution is issued under Section 1106(a), a sentencing court is obligated to order full restitution regardless of the current financial resources of a defendant. 18 Pa.C.S.A. § 1106(c)(1)(i). Once an order of restitution has been made as part of a defendant's sentence under Section 1106(a), it is enforceable until paid.
Here, it appears that the amount of restitution was provided to the court in "restitution sheets" at the time of sentencing, but that those "sheets" were never placed in the record. The court never specified the amount of restitution at sentencing, and the only restitution figure before us — $115,545.72 — is the amount stated by Appellant in his brief. We therefore are constrained to conclude that, despite the assent of Appellant's counsel at sentencing, the record before us does not support the imposition of restitution. Accordingly, we vacate the restitution portion of Appellant's sentence, and remand for further proceedings to ensure the proper imposition of restitution. At those proceedings, the Commonwealth may introduce into the record the "restitution sheets" that it contends were used at Appellant's sentencing.
Judgment of sentence affirmed in part and vacated in part consistent with this memorandum. Case remanded with instructions. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/24/2017
155 A.3d at 86 (Pa. Super. 2017) (case citations omitted).