Com. v. Hudson, K. ( 2019 )

J-S14003-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KWESI HUDSON :
:
Appellant : No. 2465 EDA 2018
Appeal from the Judgment of Sentence Entered August 7, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0003657-2017
BEFORE: LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J.
MEMORANDUM BY LAZARUS, J.: FILED APRIL 24, 2019
Kwesi Hudson appeals from the judgment of sentence, entered in the
Court of Common Pleas of Delaware County, after a jury convicted him of two
counts of robbery1 and two counts of false imprisonment.2 Hudson challenges
the legality of his mandatory minimum sentence. After careful review, we
affirm.
On May 24, 2017, Trina Price was working the evening shift as a cashier
at a CVS pharmacy in Media, Delaware County. As the store was about to
close, Hudson approached Price with a ski mask over his face and a gun in his
hand.3 He threatened Price with the gun, demanding to be taken to the safe.
____________________________________________
1 18 Pa.C.S.A. § 3701(a)(1)(ii).
2 18 Pa.C.S.A. § 2903(a).
3 Later, the police discovered Hudson possessed a BB gun.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S14003-19
Price took Hudson to the CVS shift supervisor’s office, where the safe was
kept. Hudson forced Price into the office at gunpoint, ordered Price to lie on
the floor, and demanded Jackie Gallen, the shift supervisor, hand over the
money in the safe. Gallen had been in the middle of a FaceTime video
conversation with her boyfriend, who contacted the police as he watched the
robbery unfold. Hudson directed Gallen to take the money from the safe and
put it in his bag. After Gallen emptied the contents of the safe, Hudson locked
the two women in the store’s rear bathroom. Hudson then attempted to
escape out of the store’s back door, but set off an alarm in the process. The
police arrived shortly thereafter and arrested Hudson.
On March 30, 2018, the jury found Hudson guilty of the above-
mentioned charges. On July 2, 2018, the Commonwealth notified Hudson of
its intent to invoke mandatory minimum penalties pursuant to 42 Pa.C.S.A. §
9714 (sentences for second and subsequent offenses). N.T. Sentencing,
8/7/18, at 5. At Hudson’s sentencing hearing on August 7, 2018, the
Commonwealth introduced Hudson’s certified criminal record from New
Jersey, which noted a twenty-year sentence of incarceration for first-degree
robbery, pursuant to N.J.S.A. § 2C:15-1(a)(2). Finding the requirements of
section 9714 satisfied, the court sentenced Hudson to consecutive ten to
-2-
J-S14003-19
twenty year terms of incarceration for the two robbery convictions, followed
by nine to eighteen months’ imprisonment for false imprisonment.4
Hudson did not file post-sentence motions. He, however, timely filed a
notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. Hudson raises the following issues for our
review:
1) Whether the mandatory sentences imposed pursuant to 42
Pa.C.S.[A.] § 9714 for robbery [] are illegal[,] since the
mandatory provision and its triggering facts were not charged
in the information?
2) Whether the mandatory sentences imposed pursuant to 42
Pa.C.S.[A.] § 9714 for robbery [] are illegal because []
Hudson’s prior robbery case pursuant to N.J.S.A. § 2C:15-
1(a)(2) is not a crime of violence as defined by [s]ection
9714(g), especially where the New Jersey statute is not
equivalent to robbery under 18 Pa.C.S.[A.] § 3701(a)(1)(ii)?
Brief of Appellant, at 5.
Initially, we note both of Hudson’s claims are properly before this Court
though neither was raised at sentencing or in post-sentence motions.5 Where
“[a]pplication of a mandatory minimum sentence gives rise to illegal sentence
concerns, even where the sentence is within the statutory limits[,] [l]egality
____________________________________________
4 The court set one count of false imprisonment to run concurrently to his
sentences for robbery and one count to run consecutively, for an aggregate
penalty of twenty years and nine months’ to forty one years and six months’
incarceration.
5 The court found Hudson waived his first claim by raising it for the first time
in his Rule 1925(b) concise statement of errors complained of on appeal. See
Pa.R.A.P. 1925(a) opinion, 11/13/18, at 11.
-3-
J-S14003-19
of sentence questions are not waivable.” Commonwealth v. Watley, 81
A.3d 108, 117–18 (Pa. Super. 2013) (en banc). Hudson’s claims fall within
this narrow exception to traditional rules of issue preservation. Id.Consequently, we will address the merits of his appeal. “Issues relating to the
legality of a sentence are questions of law. Our standard of review over such
questions is de novo and our scope of review is plenary.” Commonwealth
v. Wolfe, 106 A.3d 800, 802 (Pa. Super. 2014)
In his first claim, Hudson argues the prosecution was required to provide
him with notice of its intent to seek a “second[-]strike penalty” by amending
“the informations to include allegations of prior convictions that might
potentially trigger a mandatory sentence.” Brief of Appellant, at 13. In
support of his argument, Hudson relies on a line of cases where prior criminal
convictions were required to be alleged an information or indictment. See
Brief of Appellant, at 11–15 (citing Commonwealth v. Gibson, 688 A.2d
552, 556 (Pa. Super. 1995); Commonwealth v. Campbell, 417 A.2d 712,
713–14 (Pa. Super. 1980); Commonwealth v. Longo, 410 A.2d 368, 503
(Pa. Super. 1979); Commonwealth v. Moses, 271 A.2d 339, 340 (Pa.
1970)).
None of the above-mentioned cases involves section 9714. See
Gibson, supra at 556 (retail theft); Campbell, supra at 713–14 (retail
theft); Longo, supra at 503 (retail theft); Moses, supra at 556 (liquor code
violation). Rather, these cases contemplate statutes where the crime charged
-4-
J-S14003-19
varies in accordance with the number of prior convictions the accused has
accrued, exposing the repeat offender to a greater maximum penalty, and
thus, concomitantly requiring notice of prior convictions in the charging
document. See e.g., 18 Pa.C.S.A. § 3929(b) (charging retail theft as
summary offense if defendant has two or fewer prior convictions, but as third-
degree felony if three or more prior convictions); accord Commonwealth v.
Reagan, 502 A.2d 702, 705 (Pa. Super. 1985) (“in [] these cases, the
recidivist statute under which the defendant was sentenced provided for an
increased maximum or an ‘enlarged’ sentence, and it was for this reason that
the Courts concluded that prior convictions had to be alleged in the
information or indictment.”) (emphasis in original).
Hudson always faced a statutory maximum penalty of twenty years on
each robbery charge, irrespective of how many robberies he had previously
committed, because they were graded as first-degree felonies.6 See 18
Pa.C.S.A. § 1103(1) (stating maximum sentences for felonies). For retail
theft, the statute at the crux of Hudson’s argument, the maximum penalty
faced by a defendant shifts from 90 days when charged as a summary offense
____________________________________________
6 Under Pennsylvania Law, robbery can be graded as a felony of the first,
second, or third degree. 18 Pa.C.S.A. 3701(b). That determination, however,
occurs independently of one’s prior criminal history, instead hinging on the
severity of the actor’s conduct. See 18 Pa.C.S.A. § 3701(a)(1), (b)(1). The
robberies for which Hudson was convicted—robberies where an individual
“threatens another with or intentionally puts [another] in fear of immediate
serious bodily injury”—are always felonies of the first degree. Id.
-5-
J-S14003-19
for having two or fewer prior retail theft convictions to seven years when
charged as a third-degree felony with three or more prior convictions. See
id.; see also 18 Pa.C.S.A. § 1105 (stating maximum penalty for summary
offenses). Consequently, Hudson’s proposition—that prior crimes of violence
need to be alleged in the charging document—rests on entirely inapposite case
law. See Reagan, supra at 705.
To properly consider the timing of notice, we turn to section 9714, which
reads, in relevant part, as follows:
(a) Mandatory sentence.--
(1) Any person who is convicted in any court of this
Commonwealth of a crime of violence shall, if at the time of
the commission of the current offense the person had
previously been convicted of a crime of violence, be
sentenced to a minimum sentence of at least ten years of
total confinement, notwithstanding any other provision of
this title or other statute to the contrary.
...
(d) Proof at sentencing.-- Provisions of this section shall not be
an element of the crime and notice thereof to the defendant shall
not be required prior to conviction, but reasonable notice of the
Commonwealth's intention to proceed under this section shall be
provided after conviction and before sentencing[.]
18 Pa.C.S.A. § 9714(a), (d).
By the text of the statute itself, it is clear that reasonable notice comes
not at charging, but “after conviction and before sentencing.” Id. This Court
has found the Commonwealth’s notice of intent under section 9714 reasonable
-6-
J-S14003-19
when communicated as few as three days before sentencing.
Commonwealth v. Taylor, 831 A.2d 661, 667 (Pa. Super. 2003).
Hudson received notice on July 2, 2018—over one month before he was
sentenced on August 7, 2018. N.T. Sentencing, 8/7/18, at 5. Hudson does
not contest the fact that he received notice prior to sentencing. Brief of
Appellant, at 12 (“After the verdict, but prior to sentencing, the prosecution
notified Mr. Hudson of its intent to invoke mandatory second strike penalties
pursuant to 42 Pa.C.S. § 9714(a)(1)[.]”). Such circumstances fall well with
this Court’s conception of “reasonable notice” under section 9714;
consequently, Hudson’s first claim fails. See Taylor, supra at 667.
In his second argument, Hudson claims his mandatory sentences are
illegal because his prior first-degree robbery conviction does not qualify as a
crime of violence as defined by section 9714(g).
Section 9714(g), in relevant part, reads as follows:
(g) Definition.--As used in this section, the term “crime of
violence” means . . . robbery as defined in 18 Pa.C.S.[A.] §
3701(a)(1)(i), (ii) or (iii) . . . or an equivalent crime under the
laws of this Commonwealth in effect at the time of the commission
of that offense or an equivalent crime in another jurisdiction.
42 Pa.C.S.A. § 9714(g) (emphasis added).
To determine whether a crime in another state is equivalent to a
Pennsylvania offense, a court must consider “the elements of the foreign
offense in terms of classification of the conduct proscribed, its definition of the
offense, and the requirements for culpability.” Commonwealth v. Northrip,
-7-
J-S14003-19
985 A.2d 734, 740 (Pa. 2009) (citation omitted). Additionally, a court shall
consider the “underlying public policy behind the two criminal statutes.”
Commonwealth v. Ward, 856 A.2d 1273, 1277 (Pa. Super. 2004). We note
“the offenses do not identically have to mirror each other[,] but must be
substantially equivalent to invoke operation of 42 Pa.C.S.[A.] § 9714.” Id.
Under New Jersey law, “[a] person is guilty of robbery if, in the course
of committing a theft, he . . . [t]hreatens another with or purposefully puts
him in fear of immediate bodily injury[.]” N.J.S.A. § 2C:15-1(a)(2).
Moreover, robbery is graded as a crime of the first degree in New Jersey, “if
in the course of committing the theft, the actor attempted to kill anyone, or
purposefully inflicts or attempts to inflict serious bodily injury, or is armed
with, or uses or threatens the immediate use of a deadly weapon.” N.J.S.A.
§ 2C:15-1(b). Under the relevant Pennsylvania statute, “[a] person is guilty
of robbery, if in the course of committing a theft, he . . . threatens another
with or intentionally puts him in fear of immediate serious bodily injury[.]” 18
Pa.C.S.A. § 3701(a)(ii). Both crimes carry maximum penalties of twenty
years’ imprisonment. See 18 Pa.C.S.A. § 1103; see also N.J.S.A. § 2C:43-
6.
This Court recently found New Jersey’s definition of first-degree robbery
serves as a crime of violence under section 9714, equivalent to Pennsylvania’s
definitions of robbery in subsections 3701(a)(1)(i), (ii), and (iii).
Commonwealth v. Rose, 172 A.3d 1121, 1132–33 (Pa. Super. 2017). This
-8-
J-S14003-19
decision rested on the fact that the New Jersey and Pennsylvania statutes
“include nearly identical elements and grading for robbery offenses of the first
degree. . . . Additionally, the statutes are aimed at preventing the same
criminal activity, indicating that the public policy rationale for both statutes is
identical.” Id. (emphasis added).
The difference between the New Jersey and Pennsylvania statutes, upon
which Hudson focuses, is that the New Jersey statute punishes placing another
in fear of immediate bodily injury, whereas the Pennsylvania statute requires
placing another in fear of immediate serious bodily injury. See Brief of
Appellant, at 19. Hudson, however, ignores the fact that he was convicted of
first-degree robbery in New Jersey. Commonwealth Exhibit 1, at 1. This is a
conviction he could have received only if he attempted “to kill anyone, or
purposefully inflict[ed] or attempt[ed] to inflict serious bodily injury, or [was]
armed with, or use[d] or threaten[ed] the immediate use of a deadly weapon.”
N.J.S.A. § 2C:15-1(b). Taken in light of the full context of his previous
conviction, we find no reason to deviate from our decision in Rose. See Rose,
supra at 1132–33; see also Northrip, supra at 740 (“[Section 9714] neither
directs nor requires the court to consider every possible set of circumstances
in order to determine whether the mandatory sentence applies.”).
Consequently, Hudson’s second claim fails.
Judgment of sentence affirmed.
-9-
J-S14003-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/19
- 10 -