Com. v. Meckley, J. ( 2019 )

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J-S79038-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEREMIAH MICHAEL MECKLEY, :
:
Appellant : No. 764 MDA 2018
Appeal from the Judgment of Sentence Entered April 20, 2018
in the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000654-2014
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
JEREMIAH MICHAEL MECKLEY, :
: No. 765 MDA 2018
Appellant
Appeal from the Judgment of Sentence Entered April 20, 2018
in the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000255-2015
BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 28, 2019
Jeremiah Michael Meckley (“Meckley”) appeals from the judgment of
sentence imposed following his expulsion from the State Intermediate
Punishment Program (“SIPP”). We vacate and remand for resentencing.
On October 22, 2014, Meckley entered an open guilty plea, at Lycoming
County case number 654-2014 (“654-2014”), to one count of possession of a
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controlled substance, and two counts of theft by unlawful taking.1 For his two
convictions of theft by unlawful taking, Meckley was sentenced to an
aggregate sentence of 36 months in the county Intermediate Punishment
Program. Importantly to this appeal, for his conviction of possession of a
controlled substance, Meckley was sentenced to pay a fine in the amount of
fifty dollars.
On March 18, 2015, Meckley entered an open guilty plea to burglary at
Lycoming County case number 255-2015 (“255-2015”), and was sentenced
to twelve months of probation, to be served consecutively to the sentence
imposed at 654-2014.
On July 27, 2016, the trial court found Meckley to be in violation of the
conditions of his probation at 255-2015 and the county Intermediate
Punishment Program at 654-2014. Meckley was resentenced at 255-2015 and
654-2014 to complete the SIPP. Notably, the SIPP sentence included
Meckley’s conviction for possession of a controlled substance.
On April 30, 2018, Meckley was expelled from the SIPP and resentenced
to an aggregate term of five to eleven years in prison. The aggregate sentence
included a term of six months to one year in prison for the possession of a
controlled substance conviction. Meckley filed a post-sentence Motion, which
the trial court denied. Meckley filed a timely Notice of Appeal and a court-
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1 See 35 P.S. § 780-113(a)(16); 18 Pa.C.S.A. § 3921.
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ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on
appeal.2
On appeal, Meckley raises the following questions for our review:
I. Did the Court abuse its discretion when imposing consecutive
[]sentences totaling five to eleven years [in prison]?
II. Did the Court err by imposing an illegal sentence [at] 654-
2014?
Brief for Appellant at 4 (claims renumbered).
In his first claim, Meckley challenges the discretionary aspects of his
sentence. “Challenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right.” Commonwealth v. Moury, 992 A.2d
162, 170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary
sentencing issue,
[this Court conducts] a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
***
Objections to the discretionary aspects of a sentence are generally
waived if they are not raised at the sentencing hearing or in a
motion to modify the sentence imposed.
Moury, 992 A.2d at 170 (quotation marks and some citations omitted).
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2 We note that Meckley filed two Notices of Appeal, one at each of the trial
court docket numbers. Because the claims are related, we address both
herein.
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Here, Meckley failed to preserve his discretionary sentencing claim with
a specific and particular claim for relief in his post-sentence Motion. See
Commonwealth v. Reeves, 778 A.2d 691, 692-93 (Pa. Super. 2001)
(stating that a failure to state the specific reason for a requested modification
of sentence in a post-sentence motion “[denies] the sentencing judge an
opportunity to reconsider or modify [the defendant’s] sentence on this basis,
and therefore, the claim is waived.”); see also Pa.R.Crim.P. 720 (stating that
post-sentence motions “shall be stated with specificity and particularity.”).
Thus, Meckley’s discretionary sentencing claim is waived. See Reeves,
supra; Moury, supra.
In his second claim, Meckley alleges that the trial court imposed an
illegal sentence by resentencing him to a prison sentence for his conviction of
possession of a controlled substance. Brief for Appellant at 8. Meckley points
out that his original sentence on the possession charge was a fifty dollar fine.
Id. Meckley argues that because the possession charge was not included in
the 2014 sentence for county Intermediate Punishment, it should not have
been included in his 2016 and 2018 resentencings. Id. We agree.
[T]he constitutional prohibition against “double jeopardy”
was designed to protect an individual from being subjected to the
hazards of trial and possible conviction more than once for an
alleged offense....” United States v. DiFrancesco, 449 U.S.
117, 127 (1980). The [Supreme] Court has also indicated that
there are three separate constitutional protections encompassed
in the guarantee against double jeopardy: protection against a
second prosecution for the same offense after acquittal;
protection against a second prosecution for the same offense after
conviction; and protection against multiple punishments for the
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same offense. Schiro v. Farley, 510 U.S. 222, 229 (1994);
DiFrancesco, supra at 129. “These protections stem from the
underlying premise that a defendant should not be twice tried or
punished for the same offense.” Schiro, supra.Commonwealth v. Spotz, 18 A.3d 244, 261-62 (Pa. 2011) (some citations
omitted).
Here, the record reflects that Meckley’s 2014 sentence for the
possession conviction was a fifty dollar fine. Unlike sentences for intermediate
punishment, which can be modified or revoked, a fine is a final sentence. See
42 Pa.C.S.A. § 9773 (stating that “[t]he court may at any time terminate a
sentence of county intermediate punishment”); 42 Pa.C.S.A. § 9774 (stating
that “[t]he court may at any time terminate a sentence of State intermediate
punishment”); see also 42 Pa.C.S.A. § 9726 (stating that “[t]he court may …
sentence the defendant only to pay a fine, when … it is of the opinion that the
fine alone suffices.”). The trial court’s inclusion of the possession conviction
in Meckley’s 2016 and 2018 resentencings violates Meckley’s constitutional
right not to be subject to double jeopardy. See Spotz, supra. Because
Meckley’s sentence for possession was one count in a multi-count case, we
vacate Meckley’s judgment of sentence on all counts, and remand for
resentencing consistent with this Memorandum. See Commonwealth v.
Bartrug, 732 A.2d 1287, 1298 (Pa. Super. 1999) (stating that “if a trial court
errs in its sentence on one count in a multi-count case, then all sentences for
all counts will be vacated so that the court can restructure its entire sentencing
scheme.”).
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Judgment of sentence vacated. Case remanded for resentencing
consistent with this Memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/28/2019
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