Com. v. Buckley, Q. ( 2016 )

J. S27030/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
v. :
:
QUINCY BUCKLEY, :
:
Appellant : No. 1675 MDA 2015
Appeal from the Judgment of Sentence February 18, 2014
In the Court of Common Pleas of Lackawanna County
Criminal Division No(s): CP-35-CR-0001544-2011
BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E. *
MEMORANDUM BY DUBOW, J.: FILED MAY 24, 2016
Appellant, Quincy Buckley, appeals from the Judgment of Sentence
entered in the Lackawanna County Court of Common Pleas on February 18,
2014. We affirm.
On November 8, 2012, Appellant entered a counselled plea to one
count each of Conspiracy to Deliver Cocaine, Delivery of Cocaine (“PWID”),
and Criminal Use of a Communication Facility.1 After completion of a pre-
sentence investigation, which listed the weight of cocaine possessed by
Appellant as 50-100 grams, on February 18, 2014, the trial court sentenced
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 903(c), 35 Pa.C.S. § 780-113(a)(30), and 18 Pa.C.S. §
7512(a), respectively. Six other charges arising from the same series of
events were nolle prossed in accordance with the terms of Appellant’s plea
agreement. N.T. Guilty Plea Hr’g., 11/8/12, 4-5.
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Appellant to concurrent terms of three to eight years’ incarceration on the
Conspiracy charge, six to twelve months’ incarceration on the PWID charge,
and two years’ incarceration on the Criminal Use of a Communication Facility
charge, followed by two years of probation. On February 6, 2014, Appellant
filed a counselled Motion for Reconsideration of Sentence, which the court
denied on March 3, 2014.
Appellant obtained new counsel and, on August 21, 2014, Appellant’s
counsel filed a nunc pro tunc Motion for Reconsideration, in which he
challenged the sentencing guideline range used by the trial court to
determine his sentence. On December 8, 2014, Appellant filed a counselled
Post Conviction Relief Act (“PCRA”)2 Petition, alleging that his previous
counsel was ineffective for failing to file a Notice of Appeal on Appellant’s
behalf. After a hearing, the trial court granted Appellant’s PCRA Petition on
September 22, 2015, reinstating Appellant’s appeal rights nunc pro tunc.
On September 28, 2015, Appellant filed a Notice of Appeal. Appellant
complied with the trial court’s order to file a Pa.R.A.P. 1925(b) Statement of
Errors Complained of on Appeal. The trial court filed a Rule 1925(a) opinion.
Appellant raises the following issue on appeal:
Whether, where no drug weight was placed in the criminal
information or on the record at sentencing and [Appellant]
never admitted a drug weight on the record or in his guilty
plea colloquy, [Appellant] was illegally sentenced based on
a higher than minimal drug weight?
2
42 Pa.C.S. § 9541-9546.
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Appellant’s Brief at 7.
Appellant claims on appeal that the trial court imposed an illegal
sentence because the court used an improper Offense Gravity Score. He
argues that because he never admitted at the time of his plea that the
weight of the cocaine was between 50 and 100 grams, the court should
have assumed the weight to be under 50 grams at the time of sentencing,
and the Offense Gravity Score should have been 5 instead of 10.3 Relying
on Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), and Alleyne v.
United States, 133 S. Ct. 2151 (2013), Appellant claims that the trial
court impermissibly relied on the cocaine’s weight to increase his sentence
because that is a fact he did not admit or stipulate to in his guilty plea. We
disagree, and agree with the trial court that Apprendi and Alleyne are not
applicable to the instant case.
A challenge to the legality of a sentence is a question of law.
Therefore, this Court’s standard of review is de novo and the scope of review
is plenary. See Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa. Super.
2014).
Our independent review of the record reveals that the trial court
advised Appellant at the guilty plea hearing that he faced a ten-year
3
In his brief, Appellant notes that the offense gravity score for PWID
Cocaine with the lowest weight is 5, which, in Appellant’s case, would have
led to a significantly lower standard range sentence of one to twelve months’
incarceration. Appellant’s Brief at 18.
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maximum sentence on the Conspiracy charge, a ten-year maximum
sentence on the PWID charge, and a seven-year maximum sentence on the
Criminal Use of a Communication Facility charge. N.T. Plea Hr’g. at 2, 4. In
addition, Appellant’s written plea agreement stated that Appellant would
plead to criminal conspiracy to deliver a controlled substance “under 100
grams of cocaine.” Plea Agreement, 11/8/12.
Moreover, we agree with the trial court’s determination that Apprendi
and Alleyne do not provide Appellant with relief. In addressing Appellant’s
allegations of error, the trial court opined as follows:
Apprendi held that any judicial finding which results in
punishment beyond the statutory maximum must be
submitted to a jury, and Alleyne held that any fact that
triggers a mandatory minimum sentence must be
submitted to a jury. This court neither sentenced
[Appellant] beyond the statutory maximum, nor imposed a
mandatory minimum sentence here. Also the
Pennsylvania Superior Court has recently held that
Apprendi and Alleyne are not applicable to judicial
consideration at sentencing of the weight of drugs sold
where mandatory minimum sentences or sentences
beyond the statutory limits are not imposed.
Commonwealth v. Styers[ ]. In Styers, the defendant
argued that Apprendi and Alleyne prohibited the trial
court from considering the weight of the drugs sold at
sentencing, but the Superior Court held that the trial court
could consider the weight of the drugs at sentencing since
trial courts have broad sentencing discretion informed by
judicial fact finding which does not violate the Sixth
Amendment.
Trial Ct. Op., 11/19/15, at 4.
Where a defendant enters a guilty plea, there is no requirement that
he plead guilty to every fact that affects the severity of his sentence.
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Commonwealth v. Reid, 867 A.2d 1280, 1284-85 (Pa. Super. 2005). As
long as the defendant is aware of the maximum sentence he faces, which
indicates that the Commonwealth is alleging that he committed certain
crimes with certain elements, he is on notice that the Commonwealth is
alleging these facts, and it is not dispositive if the facts are not in the
information. Id. at 1285.
Here, Appellant had been informed that he faced a ten-year maximum
sentence each on the Conspiracy charge and the PWID charge, which would
only be the case if the weight of the cocaine was between 50 and 100
grams. He acknowledged this in his guilty plea agreement and at the guilty
plea hearing. Appellant also signed a written plea agreement that stated
that Appellant would plead guilty to “(Count 3) Criminal Conspiracy to
Deliver a Controlled Substance (under 100 grams of Cocaine.)” See Plea
Agreement. Appellant was, therefore, aware that the Commonwealth was
charging him with delivering and conspiring to deliver up to 100 grams of
cocaine. Because there is no requirement that a defendant plead guilty to
every fact that goes into applying the sentencing guidelines, and Appellant
had been advised of the maximum sentence he faced as well as the weight
of the drugs alleged, Appellant’s sentence is not illegal.
Judgment of Sentence affirmed. Case remanded. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/2016
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