Com. v. Handlovic, L. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LAWRENCE J. HANDLOVIC
Appellant No. 3519 EDA 2014
Appeal from the PCRA Order November 24, 2014
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0002298-2013
BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 10, 2015
Appellant, Lawrence J. Handlovic, appeals from the November 24,
2014 order, dismissing his first petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we
affirm.
Our review of the certified record discloses the following procedural
history of this case. On April 8, 2009, Appellant was charged by criminal
complaint with burglary, graded as a first-degree felony; criminal trespass,
graded as a third degree felony; theft by unlawful taking, graded as a
second degree felony; receiving stolen property, graded as a second degree
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felony; and criminal mischief, graded as a summary offense.1 On October
31, 2013, Appellant entered an open plea of guilty to all charges. The trial
court sentenced Appellant that same day to a term of incarceration of 24 to
48 months for the burglary, a concurrent term of incarceration of 12 to 24
months for the criminal trespass, a consecutive term of incarceration of 24
to 48 months for the theft by unlawful taking, for an aggregate sentence of
4 to 8 years’ incarceration. On November 8, 2013, Appellant filed a motion
to reconsider the sentence, which the trial court denied on November 13,
2013. Appellant did not file a direct appeal.
On April 7, 2014, Appellant filed a timely pro se PCRA petition. The
PCRA court appointed counsel to represent Appellant and subsequently
scheduled an “issue-framing conference” for May 23, 2014. At that
conference, Appellant limited his issue to the legality of his sentence based
on a failure to merge the theft charge with the burglary charge. N.T.,
5/23/14, at 4-5. On July 2, 2014, the PCRA court filed its notice of intent to
dismiss Appellant’s PCRA petition without a hearing, pursuant to
Pennsylvania Rule of Criminal Procedure 907.2 On November 24, 2014, the
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1
18 Pa.C.S.A. §§ 3503(a)(2), 3503(a)(1)(i), 3925(a), and 3304(a)(2),
respectively.
2
On August 1, 2014, Appellant filed a premature notice of appeal, which this
Court quashed on November 13, 2014. Per Curiam Order, 11/13/14, 2230
EDA 2014.
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PCRA court dismissed Appellant’s PCRA petition. Appellant filed a timely
notice of appeal on December 2, 2014.3
On appeal, Appellant raises a single issue for our review.
Whether plea counsel was ineffective in failing to file
a motion to reconsider an illegal sentence and/or
appeal to the Pennsylvania Superior Court where
[A]ppellant claims that [second-degree felony] theft
of a firearm merges with burglary where the
underlying criminal conduct is one single criminal
act?
Appellant’s Brief at 3.
We address this issue in compliance with the following standards.
Our standard of review of the denial of a PCRA
petition is limited to examining whether the court’s
rulings are supported by the evidence of record and
free of legal error. This Court treats the findings of
the PCRA court with deference if the record supports
those findings. It is an appellant’s burden to
persuade this Court that the PCRA court erred and
that relief is due.
Commonwealth v. Feliciano, 69 A.3d 1270, 1274-1275 (Pa. Super. 2013)
(citation omitted).
[Our] scope of review is limited to the findings of the
PCRA court and the evidence of record, viewed in the
light most favorable to the prevailing party at the
PCRA court level. The PCRA court’s credibility
determinations, when supported by the record, are
binding on this Court. However, this Court applies a
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3
Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925. The PCRA court referenced its statement of
reasons that accompanied its July 2, 2014 Rule 907 notice of intent as
containing the reasons for its decision.
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de novo standard of review to the PCRA court’s legal
conclusions.
Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)
(en banc) (internal quotation marks and citations omitted), appeal granted,
105 A.3d 658 (Pa. 2014). Additionally, in order to be eligible for PCRA relief,
a petitioner must plead and prove by a preponderance of the evidence that
his conviction or sentence arose from one or more of the errors listed at 42
Pa.C.S.A. § 9543(a)(2). These issues must be neither previously litigated
nor waived. Id. at § 9543(a)(3). “Issues concerning the legality of
sentence are cognizable under the PCRA.”4 Commonwealth v. Beck, 848
A.2d 987, 989 (Pa. Super. 2004) (citation omitted).
“A claim that crimes should have merged for
sentencing purposes raises a challenge to the legality
of the sentence. Therefore, our standard of review is
de novo and our scope of review is plenary.”
Commonwealth v. Quintua, 56 A.3d 399, 400 (Pa.
Super. 2012) (citation omitted). “An illegal sentence
must be vacated. In evaluating a trial court’s
application of a statute, our standard of review is
plenary and is limited to determining whether the
trial court committed an error of law.”
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4
Appellant couches his issue as an ineffective assistance of counsel claim.
However, as stated, the legality of a sentence may be challenged directly
through the PCRA, and it is in this posture that Appellant’s argument is
developed. We therefore address Appellant’s issue simply as a PCRA
challenge to the legality of the sentence imposed by the trial court. “It is
settled that a legality-of-sentence issue may be reviewed sua sponte by this
Court, due to the fact that an illegal sentence must be vacated.”
Commonwealth v. Stradley, 50 A.3d 769, 774 (Pa. Super. 2012) (citation
omitted).
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Commonwealth v. Poland, 26 A.3d 518, 523 (Pa.
Super. 2011) (citation omitted), appeal denied, 37
A.3d 1195 (2012).
Our legislature has defined the circumstances
under which convictions for separate crimes may
merge for the purpose of sentencing.
§ 9765. Merger of sentences
No 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.A. § 9765.
Our Supreme Court determined that
the plain language of Section 9765 reveals a
legislative intent “to preclude the courts of this
Commonwealth from merging sentences for
two offenses that are based on a single
criminal act unless all of the statutory
elements of one of the offenses are included in
the statutory elements of the other.” … [Our
Supreme Court] held that when each offense
contains an element the other does not,
merger is inappropriate.
Quintua, supra at 401, quoting Commonwealth v.
Baldwin, 604 Pa. 34, 985 A.2d 830, 837 (2009). In
essence, “[o]ur merger statute merely codified the
adoption by the [Commonwealth v. Tarver, 493
Pa. 320, 426 A.2d 569 (1981)]/[Commonwealth v.
Anderson, 538 Pa. 574, 650 A.2d 20 (1994)]
decisions of the Blockburger[v. United States,
284 U.S. 299 (1932)] test and upholds the long-
standing merger doctrine relative to greater and
lesser-included offenses.” Commonwealth v.
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Wade, 33 A.3d 108, 120 (Pa. Super. 2011), appeal
denied, 51 A.3d 839 (2012).
To determine whether offenses are greater and
lesser-included offenses, we compare the
elements of the offenses. If the elements of
the lesser offense are all included within the
elements of the greater offense and the
greater offense has at least one additional
element, which is different, then the sentences
merge. Commonwealth v. Anderson, 538
Pa. 574, 650 A.2d 20, 24 (1994). If both
crimes require proof of at least one element
that the other does not, then the sentences do
not merge. Id.Commonwealth v. Johnson, 874 A.2d 66, 70–71
(Pa. Super. 2005), appeal denied, 587 Pa. 720, 899
A.2d 1122 (2006).
Commonwealth v. Nero, 58 A.3d 802, 806-807 (Pa. Super. 2012), appeal
denied, 72 A.3d 602 (Pa. 2013). “Accordingly, merger is appropriate only
when two distinct criteria are satisfied: (1) the crimes arise from a single
criminal act; and (2) all of the statutory elements of one of the offenses are
included within the statutory elements of the other.” Commonwealth v.
Jenkins, 96 A.3d 1055, 1056 (Pa. Super. 2014) (citation omitted), appeal
denied, 96 A.3d 1055 (Pa. 2014). “The exception to [the elements-based
general rule] is when a statute dictates the manner and method by which
merger will occur.” Commonwealth v. Springer, 961 A.2d 1262, 1265
(Pa. Super. 2008) (citation omitted).
Instantly, “Appellant argues that the Court was bound to apply the
elements test of Title 42 Pa.C.S. §9765 in accordance with the plain
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language interpretation of Section 9765 revealed by the General Assembly.”
Appellant’s Brief at 9. Appellant proceeds to aver in conclusory fashion, that
“[h]ere, the criminal acts of [] Appellant involve a theft inside a residence.
The crime of burglary was charged. The crime of theft is the underlying
criminal event that is the lesser included element of burglary.” Id. We
disagree.
Contrary to Appellant’s bald assertion, each subject crime contains an
essential element not required to prove the other. In other words, neither
crime is a lesser-included offense of the other. “Under Pennsylvania law the
crime of burglary is defined as an unauthorized entry with the intent to
commit a crime after entry.” Commonwealth v. Alston, 651 A.2d 1092,
1094 (Pa. 1994) (citations omitted).5 “Proof of Theft by Unlawful Taking
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5
The statute provides as follows.
§ 3502. Burglary
(a) Offense defined.--A person commits the
offense of burglary if, with the intent to commit a
crime therein, the person:
…
(2) enters a building or occupied structure, or
separately secured or occupied portion thereof that
is adapted for overnight accommodations in which at
the time of the offense no person is present;
…
18 Pa.C.S.A. § 3502(a)(2).
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requires three elements: (1) unlawful taking or unlawful control over
movable property; (2) movable property belongs to another; and (3) intent
to deprive (permanently).” Commonwealth v. Young, 35 A.3d 54, 62 (Pa.
Super. 2011) (citation omitted), appeal denied, 48 A.3d 1249 (Pa. 2012).6
Here, Appellant claims theft by unlawful taking is a lesser-included
offense of burglary, implicitly acknowledging that burglary includes an
element of proof not required to prove theft, i.e., entry of a structure.
However, the Commonwealth is not required to prove an actual taking,
which is a necessary element of the theft charge, in order to establish a
burglary charge. Rather, the Commonwealth is only required to prove an
intent to commit a crime upon unlawful entry.
We do note that the Commonwealth is not required
to specify what crime a defendant, who is charged
with burglary [], was intending to commit. Further,
the Commonwealth need not prove the underlying
crime to sustain a burglary conviction.
Commonwealth v. Lease, 703 A.2d 506 (Pa.
Super. 1997) (burglary conviction affirmed where
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6
The statute provides as follows.
§ 3921. Theft by unlawful taking or disposition
(a) Movable property.--A person is guilty of theft
if he unlawfully takes, or exercises unlawful control
over, movable property of another with intent to
deprive him thereof.
…
18 Pa.C.S.A. § 3921(a)
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defendant was acquitted of the underlying crimes of
theft and receiving stolen property because the
factfinder could have determined that the defendant
entered the residence with the intent to steal but did
not consummate the theft after entry.) See also,
Commonwealth v. Alston, 651 A.2d 1092, 1095
([Pa.] 1994) (Commonwealth is not required to
allege or prove what particular crime the defendant
intended to commit after entry into a residence.)
Commonwealth v. Brown, 886 A.2d 256, 260, (Pa. Super. 2005) (parallel
citation omitted), appeal denied, 902 A.2d 969 (Pa. 2006). Therefore, the
charges of burglary and theft by unlawful taking each contain elements of
proof not required by the other. Accordingly, they do not merge pursuant to
Section 9765.7
Based on the foregoing, we conclude Appellant’s claim that his
sentence was illegal because the trial court failed to merge his burglary and
theft by unlawful taking convictions for the purpose of sentencing is
groundless. Accordingly, we discern no error by the PCRA court in
dismissing Appellant’s PCRA petition, and we affirm its November 24, 2014
order.
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7
Appellant acknowledges that the exception to the general elements-based
merger principles of Section 9765 as provided by 18 Pa.C.S.A. § 3502(d)
does not apply to the instant case because the theft by unlawful taking count
is graded as a second-degree felony. See Appellant’s Brief at 10, citing, 18
Pa.C.S.A. § 3502(d) (providing, “A person may not be sentenced both for
burglary and for the offense which it was his intent to commit after the
burglarious entry or for an attempt to commit that offense, unless the
additional offense constitutes a felony of the first or second degree”); see
also PCRA Court’s Rule 907 Notice and Statement of Reasons, 7/2/14, at 1-
3.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2015
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