Com. v. Smith, L. ( 2016 )

J-S73005-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LARRY EUGENE SMITH
Appellant No. 1802 WDA 2015
Appeal from the Judgment of Sentence October 27, 2015
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0001414-2014,
CP-07-CR-0001415-2014, CP-07-0001420-2014,
CP-07-CR-0001422-2014, CP-07-CR-0001426-2014
CP-07-CR-0001427-2014
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.
CONCURRING AND DISSENTING STATEMENT BY LAZARUS, J.:
FILED: DECEMBER 9, 2016
I join in the majority’s disposition of the issues raised on appeal by
Smith. I dissent, however, on the majority’s affirmance of five of Smith’s six
conspiracy convictions.1
Pursuant to Commonwealth v. Perez, 553 A.2d 79 (Pa. Super.
1988), I believe that Smith conspired to commit a single violation of our
Commonwealth’s statute, possession with intent to deliver. Smith’s actions
involved a course of continuing conduct “involving the repetition of a single
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1
In doing so, I recognize that we can raise illegality of sentence claims sua
sponte. See Commonwealth v. Edrington, 780 A.2d 721 (Pa. Super.
2001).
J-S73005-16
crime,” id., when the same confidential informant engaged in six separate
controlled buys of marijuana with Smith. See 18 Pa.C.S. § 903(c) (if person
conspires to commit number of crimes, he is guilty of only one conspiracy so
long as such multiple crimes are object of same agreement or continuous
conspiratorial relationship). Accordingly, while I would affirm Smith’s
judgment of sentence, I would vacate five of his six conspiracy convictions.2
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2
I also disagree with the majority’s decision to affirm the five conspiracy
convictions based on the fact that Smith “very well may have not been
entitled to relief in any event.” Majority Memorandum, at n.4. While Smith’s
case may not necessitate remand for resentencing because his conspiracy
sentences were ordered to run concurrently to the underlying offense, it
does not change the fact that only one of Smith’s conspiracy convictions is
authorized under the facts alleged. Thus, this portion of his sentence is
illegal and our disposition should reflect that fact. See Commonwealth v.
Barnes, 871 A.2d 812 (Pa. Super. 2005) (despite fact that only one illegal
conspiracy conviction (to deliver controlled substance) required remand for
resentencing, court vacated two other conspiracy convictions (to commit
third-degree murder and to commit robbery) in its final disposition on appeal
where only a single conspiratorial agreement had been proven).
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