Com. v. Anderson, K. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
KOBINA A.A. ANDERSON
No. 235 EDA 2015
Appeal from the Judgment of Sentence November 26, 2014
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0004005-2012
BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 12, 2016
The Commonwealth appeals from the judgment of sentence entered in
the Philadelphia Court of Common Pleas after the trial court granted
Appellee Kobina A.A. Anderson’s petition to reconsider its original sentence
for carrying a firearm without a license, graded as a third-degree felony.1
The Commonwealth claims the trial court erred in grading the offense as a
first-degree misdemeanor under 18 Pa.C.S. § 6106(a)(2) upon resentencing.
We vacate the judgment of sentence and remand for resentencing.
The facts underlying Appellee’s conviction were set forth at a guilty
plea hearing.
[O]n January 19th, 2012, about 4:20 in the afternoon,
[Appellee] was driving a vehicle on the 2000 block of North
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 6106(a)(1).
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Broad. That vehicle had very dark window tint and the
rear lights were inoperable.
[Appellee] was stopped. The police smelled a strong
odor of marijuana in the vehicle. The police asked him if
he had any drugs or contraband. He said he had some
drugs in an Adidas vest which was in the backseat of the
vehicle.
While recovering that, the police also recovered a 40
caliber Glock semi-automatic handgun which was
underneath that vest. This gun was placed on a property
receipt. It was operable. [Appellee] does not have a
permit to carry a firearm.
N.T. Guilty Plea Hr’g, 6/12/14, at 14.
Appellee was charged with firearms not to be carried without a license,
carrying firearms on public streets of Philadelphia,2 and possessing a small
amount of marijuana.3 Appellee filed a motion to suppress on April 23,
2012. Consideration of the suppression motion was continued for pending
appellate court decisions. On April 30, 2014, the trial court denied
Appellee’s motion to suppress indicating that a Pennsylvania Supreme Court
decision had been issued.
On June 12, 2014, Appellee proceeded to a guilty plea hearing.
Appellee completed a written colloquy indicating he would enter an open
guilty plea to the violation of Section 6106, graded as a third-degree felony.
Colloquy for Plea of Guilty / Nolo Contendere, 6/12/14, at 1; Written Guilty
2
18 Pa.C.S. § 6108.
3
35 P.S. § 780-113(a)(31).
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Plea Colloquy, 6/12/14, at 1. The Commonwealth agreed to withdraw the
remaining charges. Written Guilty Plea Colloquy at 1. During the in-court
colloquy, the trial court apprised Appellant of the felony grade of the offense
and the possible maximum sentence of seven years. N.T. Guilty Plea Hr’g at
4, 8. The court accepted Appellee’s guilty plea, dismissed the remaining
charges by nolle prosequi, and deferred sentencing for the preparation of a
presentence investigation report.
At the September 4, 2014 sentencing hearing, Appellee’s counsel
indicated the following. Appellee was married, owned a home, and was
employed. N.T. Sentencing Hr’g, 9/4/14, at 6. Appellee had a prior record
score of zero, and this was his first adult arrest. Id. at 7-8. Appellee
legally purchased the firearm three months before his arrest and at the time
of his arrest, was returning from a gun range, but forgot to unload the
weapon.4 Id. at 9. Appellee was planning to obtain a license to carry a
firearm, but was told he could not apply because of outstanding parking
tickets or fines. Id. Additionally, Appellee’s counsel indicated that Appellee
immigrated from Ghana when he was three years old and was not yet a
citizen. Id. at 8. Counsel acknowledged “there [were] some other
immigration issues . . . .” Id. at 8, 11. The Commonwealth requested an
4
Cf. 18 Pa.C.S. § 6106(b)(4) (creating exception to license requirement for
“persons engaged in target shooting with a firearm, if such persons are at or
are going to or from their places of assembly or target practice and if, while
going to or from their places of assembly or target practice, the firearm is
not loaded” (emphasis added)).
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eleven-and-a-half to twenty-three month sentence. Id. at 14. The trial
court sentenced Appellee to two years’ reporting probation. Id. at 15.
On September 15, 2014, Appellee timely filed a petition for
reconsideration of the sentence with the assistance of new counsel.5
Appellee requested that the trial court “vacate and reconsider his sentence
of the felony charge of 6106” because he “was otherwise eligible to obtain a
permit to carry and therefore the charge . . . should’ve been reduced to a
misdemeanor, M1.” Appellee’s Pet. for Recons. of Sentence, 9/15/14, at 1.
Appellee asserted that he is “a resident alien and the conviction for a felony
may affect his status in the United States.” Id. The Commonwealth filed a
letter opposing the post-sentence motion and arguing that Appellee (1)
knowingly, intelligently, and voluntarily pleaded guilty to a felony offense,
(2) committed other criminal violations while unlawfully carrying the firearm,
and (3) presented no evidence that he was otherwise eligible to possess a
valid license to carry a firearm under 18 Pa.C.S. § 6109. Commonwealth’s
Opp’n. to Appellee’s Pet. for Recons. of Sentence, 10/16/14, at 2-4
(unpaginated).
5
The tenth day after the September 4, 2014 sentencing hearing fell on a
Sunday. Therefore, Appellee had until the following Monday, September 15,
2014, to file a post-sentence motion. See 1 Pa.C.S. § 1908 (establishing
rules for computation of time); Pa.R.Crim.P. 720(A)(1) (stating general rule
that a “written post-sentence motion shall be filed no later than 10 days
after imposition of sentence”).
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The trial court held arguments on Appellee’s petition on November 26,
2014. At the conclusion of the arguments, the court stated, “I’ll vacate the
guilty verdict of VUFA 6106 as a felony of the [third] degree, and will enter a
verdict of VUFA 6106 as a misdemeanor of the first degree.” N.T. Mot. Hr’g,
11/26/14, at 16. The court immediately resentenced Appellee to no further
penalty.6 Id.
The Commonwealth timely filed a motion for reconsideration of
sentence on December 4, 2014. The Commonwealth asserted that the
conviction was properly graded as a third-degree felony in light of Appellee’s
guilty plea and because Appellee failed to establish the factors for a
reduction of the grade of the offense. The Commonwealth filed a
supplemental motion for reconsideration of sentence on December 22, 2014,
asserting the misdemeanor grading of the offense deprived it of the benefits
of the plea agreement and seeking withdrawal of the guilty plea and
reinstatement of all charges.
On January 15, 2015, forty-two days after the Commonwealth filed its
original motion to reconsider, the clerk of the court erroneously issued an
order indicating that Appellee’s post-sentence motions were denied by
operation of law. The Commonwealth filed a notice of appeal and Pa.R.A.P.
1925(b) statement on the following day. On April 21, 2015, the clerk of the
6
Although the court’s intent was to resentence under Section 6106(a)(2), its
order and the docket reflect that the sentence was imposed for a violation of
Section 6105. See Trial Ct. Op., 5/25/15, at 3 n.2.
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court issued an order denying the Commonwealth’s post-sentence motion by
operation of law.7
The trial court, on May 26, 2015, filed a Rule 1925(a) opinion
suggesting we affirm the amended sentence. The court, in relevant part,
determined that “[i]n this case, no other offense, either prior or
contemporaneous, was established by a conviction.”8 Trial Ct. Op., 5/26/15,
at 5. The court further concluded that “the legislatively enacted mitigating
factor ‘otherwise eligible’ under [Section 6106(a)(2)] required that the
offense be graded as a[ first-degree misdemeanor].” Id.
The Commonwealth presents the following question for review:
7
Although the Commonwealth took the appeal from the January 15, 2015,
“order” and did not appeal the April 21, 2015 order denying its post-
sentence motions, we regard as done that which should have been done and
will not quash the Commonwealth’s premature appeal. See generally
Johnston the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d 511, 514-15
(Pa. Super. 1995) (en banc). Moreover, we observe that (1) the trial court
granted Appellee’s petition to reconsider the original sentence over the
Commonwealth’s objections, (2) the January 15, 2015 order apparently
engendered confusion, and (3) an order disposing of the Commonwealth’s
post sentence motion was eventually docketed. Therefore, the holding and
rationale of Commonwealth v. Borrero, 692 A.2d 158 (Pa. Super. 1997),
do not require us to quash this appeal. See Borrero, 692 A.2d at 160(quashing appeal filed by the defendant after he filed timely post-sentence
motions but prematurely filed notice of appeal before the court ruled on the
motion and no appropriate order was docketed at the time the appeal was
considered).
8
The trial court also concluded that the Commonwealth’s claim that it was
deprived of the benefit of the plea agreement was waived because it was
raised in an untimely supplemental motion for reconsideration. Trial Ct. Op.
at 2 n.1. The Commonwealth has not pursued that argument on appeal.
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Where [Appellee] pleaded guilty and was sentenced under
§ 6106 of the Uniform Firearms Act as a felony of the third
degree, whether the lower court subsequently erred by (as
the docket states) changing and replacing the offense
under § 6106 with § 6105 graded as a first degree
misdemeanor; or by (as indicated by the court) changing
the § 6106 offense to a first degree misdemeanor?
Commonwealth’s Brief at 4.
The Commonwealth asserts Appellee was not entitled to the first-
degree misdemeanor grading under Section 6106(a)(2) for firearm not to be
carried without a license. First, the Commonwealth argues that Appellee
failed to produce evidence or prove he was otherwise eligible to possess a
valid license to carry a firearm. Id. at 10. Second, it claims the record
established that Appellee committed other criminal violations while carrying
the firearm without a license. Id. at 13. The Commonwealth contends the
trial court erred in concluding that only a conviction for another criminal
violation will preclude a reduction of the grade under Section 6106. Id. at
12-13. We conclude that relief is due.
The Commonwealth’s arguments raise questions of law over which our
standard of review is de novo and our scope of review is plenary.
Commonwealth v. Mendozajr, 71 A.3d 1023, 1027 (Pa. Super. 2013).
Section 6106(a) states:
(a) Offense defined.—
(1) Except as provided in paragraph (2), any person
who carries a firearm in any vehicle or any person who
carries a firearm concealed on or about his person,
except in his place of abode or fixed place of business,
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without a valid and lawfully issued license under this
chapter commits a felony of the third degree.
(2) A person who is otherwise eligible to possess a
valid license under this chapter but carries a firearm in
any vehicle or any person who carries a firearm
concealed on or about his person, except in his place of
abode or fixed place of business, without a valid and
lawfully issued license and has not committed any
other criminal violation commits a misdemeanor of
the first degree.
18 Pa.C.S. § 6106(a)(1)-(2) (emphasis added).
In Commonwealth v. Bavusa, 832 A.2d 1042 (Pa. 2003), the
Pennsylvania Supreme Court held that Section 6106(a)(1) defines an offense
that is presumptively graded as a felony of the third degree, while Section
6106(a)(2) constitutes a grading/sentencing provision. Id. at 1056. The
Court concluded that the issue of “[w]hether the offense should be graded
as a felony or a misdemeanor is a matter to be decided at sentencing.” Id.In light of Bavusa, a reduction in the grade of the Section 6106
offense from a presumptive felony to a misdemeanor requires consideration
of two prongs, both of which must be met. See id. First, the defendant
“must be otherwise eligible to possess a valid license under this chapter . . .
.” See 18 Pa.C.S. §§ 6106(a)(2), 6109(e)(1)(i)-(xiv); see also
Commonwealth v. Coto, 932 A.2d 933, 940 (Pa. Super. 2007). The
defendant bears the burdens of production and persuasion regarding his
license eligibility. Coto, 932 A.2d at 940. Second, the defendant must not
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have “committed any other criminal violation . . . .” See 18 Pa.C.S. §
6106(a)(2); Bavusa, 832 A.2d at 1056. We focus on the second prong.
Although the decisional law establishes that a “contemporaneous
conviction” is sufficient to preclude application of Section 6106(a)(2), no
decision has suggested that a conviction is necessary to negate that second
prong. See Bavusa, 832 A.2d at 1056; accord Commonwealth v.
Scarborough, 89 A.3d 679, 685 (Pa. Super.) (contemporaneous conviction
for a Section 6108 offense prevents the misdemeanor grading of a Section
6106 offense), appeal denied, 102 A.3d 985 (Pa. 2014); Mendozajr, 71
A.3d at 1028 (same); Commonwealth v. Derr, 841 A.2d 558, 561-62 (Pa.
Super. 2004) (contemporaneous conviction for driving under the influence
precluded the misdemeanor grading of Section 6106 offense). Returning to
the statute, we note that Section 6106 plainly speaks to “committing any
other criminal violation,” and not a conviction for such acts. See 18 Pa.C.S.
§ 6106(a)(2). Were Section 6106(a)(1) viewed as increasing the maximum
possible sentence based on the grade of the offense, we would find more
compelling the argument that a contemporaneous conviction, or at least a
finding beyond a reasonable doubt, was necessary to establish the felony
grade of the offense. Cf. Bavusa, 832 A.2d at 1061 (Saylor, J.,
concurring); see generally Apprendi v. New Jersey, 530 U.S. 466(2000). However, Bavusa drew a narrow, but clear, theoretical line
between Section 6106(a)(1) and (2), and separated Section 6106(a)(2) as a
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provision for sentencing mitigation. We therefore agree with the
Commonwealth that a contemporaneous conviction is not necessary to
preclude mitigation under Section 6106(a)(2).
Having concluded a separate conviction is not necessary to bar
application of Section 6106(a)(2), we could remand this matter for more
detailed findings of fact and credibility on the second prong of Section
6106(a)(2). However, because the Uniform Firearms Act applies with special
force in Philadelphia, a review of the instant record convinces us that a
remand is not necessary for further proceedings on this issue.
Section 6108 of the Crimes Code defines the offense of carrying a
firearm on the public streets of Philadelphia as follows:
No person shall carry a firearm, rifle or shotgun at any
time upon the public streets or upon any public property in
a city of the first class unless:
(1) such person is licensed to carry a firearm; or
(2) such person is exempt from licensing under section
6106(b) of this title (relating to firearms not to be
carried without a license).
18 Pa.C.S. § 6108. A Section 6108 offense is graded as a misdemeanor of
the first degree. See id. §§ 6108, 6119.
In Bavusa, the Court described the interaction between Section 6106
and 6108.
[W]hile the Section 6108 offense is based upon the same
incident and general conduct as the Section 6106 offense,
the statutes contain distinct and different material
elements with respect to concealment and the geographic
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location of the conduct: i.e., concealment is an element of
Section 6106(a) but not of Section 6108, while location in
Philadelphia is an element of Section 6108 but not of
Section 6106(a).
Bavusa, 832 A.2d at 1055-56.
Justice Nigro, who dissented in Bavusa, suggested:
Based on the majority’s conclusions, it would seem that a
violation of Section 6108 in Philadelphia simultaneously
establishes Section 6106 felony gradation, thereby
precluding defendants who commit a Section 6106 offense
within Philadelphia from misdemeanor gradation, although
such conduct would constitute a misdemeanor everywhere
else in the state. Thus, as a practical matter, the majority
creates a disparate rule whereby violations of Section 6106
constitute a misdemeanor of the first degree, unless the
violation occurs in Philadelphia, in which case the offense
becomes a felony in the third degree.
Id. at 1063 n.3 (Nigro, J., dissenting).
Subsequently, in Scarborough, this Court rejected a defendant’s
claim that “his violation under Section 6106 would be a first degree
misdemeanor if committed anywhere else in Pennsylvania except
Philadelphia, and that such a geographical distinction violates his due
process and equal protection rights.” Scarborough, 89 A.3d at 685. The
Scarborough Court engaged in a rational basis review, and concluded that
the interplay of Sections 6106 and 6108, whereby a person
who carries a concealed weapon in Philadelphia will always
face enhanced sentencing exposure on a third degree
felony, also addresses a legitimate state interest in curbing
gun violence in Philadelphia. We find that the Legislature
could legitimately amend Section 6106 to include carrying
a concealed weapon in a city of the first class as a
disqualifier for grading as a first degree misdemeanor.
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The interplay of Sections 6106 and 6108 simply
accomplishes the same.
Id. at 687.
Instantly, Appellee pleaded guilty to a Section 6106 offense. Although
the Section 6108 charge was dismissed by nolle prosequi, the same facts
underlying his plea to Section 6106 establish that he committed a Section
6108 offense. Specifically, he was driving on a public street in Philadelphia—
i.e. the 2000 block of North Broad Street—and was carrying a loaded
firearm. See N.T. Guilty Plea Hr’g at 14. Under these circumstances,
precedents constrain us to conclude that the trial court erred in its
application of Section 6106(a)(2).
Lastly, we note that the trial court was also convinced that a sentence
of no further penalty was appropriate. This Court has no basis to consider
the discretionary aspects of that sentence. Therefore, we conclude only that
Appellee’s Section 6106 must be graded as a third-degree felony and
remand this matter for resentencing.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Shogan, J. Concurs in the Result.
Mundy, J. Concurs in the Result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/12/2016
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