Com. v. Jackson, M. ( 2023 )

J-A11042-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL L. JACKSON :
:
Appellant : No. 582 WDA 2022
Appeal from the Judgment of Sentence Entered December 28, 2021
In the Court of Common Pleas of Butler County Criminal Division at
No(s): CP-10-CR-0001404-2018
BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: June 9, 2023
Michael L. Jackson (Jackson) appeals from the December 28, 20211
judgment of sentence entered by the Court of Common Pleas of Butler County
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* Retired Senior Judge assigned to the Superior Court.
1 The order denying Jackson’s timely post-sentence motion was docketed on
March 22, 2022, and his retained counsel moved to withdraw on April 11,
2022. Jackson filed a pro se motion for appointment of counsel to aid him in
an appeal which was dated April 12, 2022, and docketed April 25, 2022. The
trial court appointed appellate counsel by order docketed May 2, 2022, and
counsel filed a notice of appeal on May 17, 2022. Thus, Jackson’s counseled
notice of appeal was untimely filed 56 days after his post-sentence motion
was denied. See Pa. R. Crim. P. 720(A)(2)(a). While this Court cannot extend
the time for filing an appeal, “this general rule does not affect the power of
the courts to grant relief in the case of fraud or breakdown in the processes
of the court.” See Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa.
Super. 2007). We have previously found a breakdown in the processes of the
court when the sentencing court “either failed to advise [the] Appellant of his
post-sentence and appellate rights or misadvised him.” Id. (citations
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(trial court) following remand from this Court for resentencing on conspiracy
to commit possession with intent to deliver (PWID), two counts of PWID,
criminal use of a communication facility, two counts of possession of a
controlled substance (simple possession) and possession of drug
paraphernalia.2 He contends that his sentence is illegal because one of the
counts of simple possession must merge with one of the counts of PWID. We
affirm.
We set forth the facts of the instant case in more detail in Jackson’s
direct appeal. See Commonwealth v. Jackson, 638 WDA 2020, at *1-5
(Pa. Super. Sept. 7, 2021) (unpublished memorandum). Briefly, the Butler
City Police and Pennsylvania Office of the Attorney General conducted an
investigation into Jackson’s drug dealing activity in June of 2018. They used
a confidential informant to execute a controlled buy of 16 stamp bags of heroin
from Jackson at his home. Id. at *1-2. After the controlled buy, they obtained
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omitted); see also Pa. R. Crim. P. 720(B)(4)(a) (requiring an order denying
a post-sentence motion include notice of the right to appeal and applicable
time limits). Our review of the order denying Jackson’s post-sentence motion
reveals that it did not apprise him of his appellate rights. See Order of Court,
3/22/22. Accordingly, we conclude that Jackson was prevented from filing a
timely appeal due to a breakdown in the processes of the court and we decline
to quash this appeal as untimely.
218 Pa.C.S. § 903; 35 P.S. § 780-113(a)(30); 18 Pa.C.S. § 7512(a); 35 P.S.
§§ 780-113(a)(16) & (32).
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a search warrant for the home and recovered numerous narcotics and items
of paraphernalia to package and process the narcotics.
Law enforcement found a powdery substance scattered about the
second floor of the home that later tested positive for a mixture of heroin,
cocaine and fentanyl. Id. at 2-3. In Jackson’s bedroom, they found heroin,
cocaine, stamp bags, gloves, digital scales and other assorted paraphernalia.
Id. at *3. Jackson was searched incident to arrest and officers recovered a
small plastic bag containing blue pills from his rectum. Id. Those pills tested
positive for fentanyl. Id.
The initial criminal information charged Jackson with ten counts related
to the controlled buy and items found pursuant to the search warrant.
Relevant to this appeal, Count 4 was charged as follows:
COUNT 4 – MANUFACTURE, DELIVER, OR POSSESS WITH INTENT
TO MANUFACTURE OR DELIVER (FELONY)
IN THAT, on or about [June 27, 2018], the actor . . . did possess
with intent to deliver 27 full stamp bags of Heroin, a Schedule I
controlled substance, a bag containing at least 20 individual bags
of Crack Cocaine, a Schedule II controlled substance, 2 knotted
plastic bags containing raw Heroin, a Schedule I controlled
substance, along with a vast amount of packaging and processing
material, and a plastic bag containing unknown blue pills that were
concealed within Michael Jackson’s anus . . . .
Information, 9/11/18. Count 8, simple possession, listed the same narcotics
as the factual basis for that charge. At the time of jury selection, the trial
court granted the Commonwealth’s motion to amend the criminal information
to add Counts 11 through 13, which were PWID, conspiracy to commit PWID,
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and simple possession, all of fentanyl.3 N.T., 6/13/19, at 2-3. The trial court
entered an order listing the additional charges but, for reasons unclear from
the record, no amended criminal information was filed. The transcript of the
brief argument on the motion to amend does not reveal a specific factual basis
for the charges. Id.
Jackson proceeded to a jury trial and was convicted of the above-
mentioned charges. The verdict slip set forth Counts 4 and 13 as follows:
Count 4 – Manufacture, Deliver or Possess with Intent to Deliver
27 full stamp bags of Heroin, a bag containing at least 20
individual bags of Crack Cocaine, 2 knotted plastic bags containing
raw Heroin, along with a vast amount of packaging and processing
material and a plastic bag containing unknown blue pills.
Count 13 – Possession of a Controlled Substance – Fentanyl.
Verdict Slip, 6/26/19 (cleaned up). Thus, the verdict slip did not specify which
item formed the basis for Count 13.
The trial court sentenced Jackson to an aggregate of 117 months to 234
months’ incarceration followed by two years’ probation. On direct appeal, we
held that the evidence was insufficient to support five of the conspiracy
charges and remanded for resentencing on the remaining charges. Id. at
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3 The jury found Jackson not guilty of PWID of fentanyl on Count 11 and this
Court found the evidence insufficient to support his conviction of conspiracy
to commit PWID of fentanyl on Count 12. See Verdict Slip, 6/26/19;
Commonwealth v. Jackson, 638 WDA 2020, at *10-11 (Pa. Super. Sept. 7,
2021) (unpublished memorandum). Therefore, only his conviction for Count
13, simple possession of fentanyl, is at issue here.
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*10-11. On remand, the trial court initially resentenced Jackson to an
aggregate of 108 to 216 months’ incarceration. This included a sentence of
30 to 60 months’ incarceration on PWID at Count 4 and 12 to 24 months’
incarceration on simple possession of fentanyl at Count 13. Jackson filed post-
sentence motions that were granted in part and denied in part following oral
argument. The trial court modified his sentence at Count 8, simple possession
of multiple narcotics, to no further penalty, finding that it merged with Count
4. Thus, the aggregate sentence was reduced to 96 to 102 months. Jackson
timely appealed and he and the trial court have complied with Pa. R.A.P. 1925.
Jackson presents one issue on appeal: whether his sentence is illegal
because Count 13, simple possession of fentanyl, should have merged for
sentencing purposes with Count 4, PWID of multiple narcotics.4 Relying on
Commonwealth v. Ramsey, 214 A.3d 274 (Pa. Super. 2019), he argues
that merger is appropriate because even though the fentanyl was recovered
in both powdered and pill form, it was all collected on the same date and as
part of the same search. He points out that the trial court relied on the
powdered fentanyl and the pill-form fentanyl as two separate substances, but
the powdered form also tested positive for cocaine and heroin, which were
also separately accounted for in Count 4. He concludes that possession of all
forms of fentanyl was a single criminal act and merger is appropriate.
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4 Whether a sentence is illegal is a question of law and our scope of review is
plenary. Commonwealth v. Maxwell, 932 A.2d 941, 942 (Pa. Super. 2007).
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Offenses merge when “the crimes arise from a single criminal act and
all of the statutory elements of one offense are included in the statutory
elements of the other offense.” 42 Pa.C.S. § 9765. If crimes merge, the trial
court may only impose a sentence on the higher-graded offense. Id. We
have previously held that simple possession is a lesser included offense of
PWID. See Commonwealth v. Williams, 958 A.2d 522, 528 (Pa. Super.
2008). Thus, our merger analysis is confined to whether the two offenses
were predicated on the same criminal act.
In Ramsey, the defendant pled guilty to one count of PWID and one
count of delivery of a controlled substance, both violations of 35 P.S. § 780-
113(a)(30), based on a sale he made to an undercover police officer of a single
compound that contained both heroin and fentanyl. Ramsey, supra, at 276.
We concluded that a single criminal act supported both convictions, as the
type of controlled substance involved in a violation of 35 P.S. § 780-
113(a)(30) is not an element of the crime, but rather relates only to the
appropriate penalty and sentencing guidelines. Id. at 278. Moreover, we
distinguished the act of selling a compound comprised of multiple substances
from a case in which the defendant was properly sentenced on two offenses
when he sold two different types of pills in the same vial. Id. (discussing
Commonwealth v. Swavely, 554 A.2d 946 (Pa. Super. 1989)). Accordingly,
we agreed that merger of Ramsey’s offenses was appropriate.
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Conversely, in Williams, we confronted a situation in which the
defendant was convicted of two counts of simple possession: one count was
related to baggies of cocaine found in the defendant’s sock and the other was
related to baggies of cocaine subsequently recovered from the defendant’s
car. Williams, supra, at 523. On appeal, he argued that the two counts
should have merged for sentencing purposes. We rejected his argument,
concluding that “his possession of cocaine in two different locations and of two
different amounts” constituted two separate criminal acts. Id. at 527-28; see
also Commonwealth v. Roberts, 133 A.3d 759 (Pa. Super. 2016) (finding
merger of two PWID offenses was not required when defendant possessed a
bag of powdered cocaine and a bag of crack cocaine).
In rejecting Jackson’s claim, the trial court concluded that he possessed
fentanyl in two different forms, constituting two different criminal acts for the
purposes of merger. See Order of Court, 3/22/22, at 1-3. The testimony and
laboratory report admitted at trial revealed that approximately .97 grams of
a powder mixture of potential hair, heroin, cocaine and fentanyl was collected
from the floor during the search. Id. at 1-2 (citing Commonwealth Exhibit
40). The “unknown blue pills” referenced in Count 4 were recovered from
Jackson’s person following his arrest, weighed approximately 1.95 grams in
total and tested positive for fluoroisobutyryl fentanyl. Id. at 2-3 (citing
Commonwealth Exhibit 40).
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The trial court did not err in concluding that Counts 4 and 13 do not
merge, as they arise from separate criminal acts. If Jackson had only
possessed the powdered mixture containing heroin, cocaine and fentanyl, we
would agree that this case is governed by Ramsey, and that he cannot be
separately punished for each component of a mixed compound of narcotics.
Here, however, Jackson possessed fentanyl in two distinct forms—the powder
and the blue pills—rendering this case on all fours with Williams, Roberts
and Swavely. Where a defendant possesses a narcotic “in two different
locations and of two different amounts,” or the narcotic takes on two forms
and would be sold separately in the marketplace, he has committed two
separate criminal acts. Williams, supra, at 527-28; Roberts, supra.Additionally, all of the substances identified in the criminal information and
verdict slip as the factual basis for Counts 4 and 8 were separate from the
powdered mixture that underlies Count 13. See Commonwealth Exhibit 40.
The compound mixture containing fentanyl that was recovered from the floor
was not accounted for in Count 4. Accordingly, Jackson’s convictions for PWID
and simple possession of fentanyl do not merge and no relief is due.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2023
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