Com. v. McClelland, D. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DIANE MCCLELLAND :
:
Appellant : No. 489 WDA 2020
Appeal from the Judgment of Sentence Entered March 5, 2020
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0002056-2011
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY DUBOW, J.: FILED: AUGUST 12, 2021
Appellant, Diane McClelland, appeals from the March 5, 2020 Judgment
of Sentence of 24½ to 49 years’ incarceration entered upon remand for
resentencing by this Court. Appellant challenges the legality and discretionary
aspects of her sentence. After careful review, we affirm.
The relevant facts and procedural history are as follows. In 2013, a jury
convicted Appellant of Conspiracy to Commit Burglary, Conspiracy to Deal in
Proceeds of Unlawful Activities, Conspiracy to Commit Theft, Dealing in
Proceeds of Unlawful Activities, Receiving Stolen Property, and Hindering
Apprehension or Prosecution1 in addition to one count of Conspiracy to Commit
Homicide. At trial, the jury heard evidence proving that Appellant participated
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 903 (graded as a first-degree felony), 5111(a)(1), 3925, and
5105(a)(5), respectively.
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in numerous thefts of cash from the home of, and eventual murder of, Evelyn
Stepko, Appellant’s elderly neighbor.2
Following her convictions, on June 6, 2013, the trial court sentenced
Appellant to a term of 24½ to 49 years’ incarceration.3 In its June 6, 2013
written sentencing Order, the trial court noted that Appellant “admitted to
having knowledge of the conspiracy and the burglary [but] at no time did
[she] do anything to stop these burglaries. . . . As discussed prior to and at
trial, violence is an inherent result of burglary and the home invasion of an
elderly victim . . . is considered a violent crime.” Sentencing Order, 6/6/13,
at 2.
Appellant filed a direct appeal, and this Court affirmed after concluding
that due to substantial briefing defects, she had waived her issues.
Commonwealth v. McClelland, 131 A.3d 93 (Pa. Super. 2015) (unpublished
memorandum). Appellant successfully obtained reinstatement of her direct
appeal rights. Following our review, this Court vacated Appellant’s conviction
of Conspiracy to Commit Homicide, affirmed all other convictions, vacated in
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2 Appellant’s husband and stepson were her co-defendants in the 2013 trial.
3 Specifically, the court imposed a sentence of 20 to 40 years’ incarceration
for Appellant’s Conspiracy to Commit Homicide conviction, 2 to 4 years’
incarceration for her Dealing in Proceeds of Unlawful Activities conviction, 2 to
4 years’ incarceration for her Receiving Stolen Property conviction, and 6
months to 1 year of incarceration for her Hindering Apprehension or
Prosecution conviction. The court ordered these sentences to run
consecutively and imposed no further penalty for Appellant’s convictions of
Conspiracy to Commit Burglary, Conspiracy to Deal in Proceeds of Unlawful
Activities, and Conspiracy to Commit Theft convictions.
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part her Judgment of Sentence, and remanded for resentencing.
Commonwealth v. McClelland, 204 A.3d 436, 445, 448 (Pa. Super. 2019).
We also directed that, for sentencing purposes, “Appellant’s [C]onspiracy [to
Commit Burglary] offense must be graded as the equivalent to the burglary
offense to which she conspired.” Id. at 445 n.3.
On March 5, 2020, the trial court held a resentencing hearing. Relevant
to the instant appeal, and in light of this Court’s directive that the court grade
Appellant’s Conspiracy to Commit Burglary offense as “equivalent to the
burglary offense to which she conspired,” Appellant argued that the court
should grade the offense as a second-degree felony because “the object of the
conspiracy was very clear that no person was to be present.” 4, 5 N.T., 3/5/20,
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4 Relevantly, our Crimes Code defines by two subsections a burglary offense
that occurs in a structure that is adapted for overnight accommodation:
Section 3502(a)(1) pertains to when a person is present during the
commission of the offense; Section 3502(a)(2) pertains to when a person is
not present during the commission of the offense. See 18 Pa.C.S. § 3502. A
Section 3502(a)(1) offense is graded as a first-degree felony; a Section
3502(a)(2) offense is also a first-degree felony. The only section of the
Burglary statute graded as a second-degree felony is Section 3502(a)(4)
which pertains to burglary of a structure not adapted for overnight
accommodations in which a person is not present at the time of the offense.
See id. at 3502(a)(4). The evidence at trial demonstrated that Appellant
participated in a conspiracy to commit numerous burglaries of a structure
adapted for overnight accommodation, i.e., the victim’s home. Therefore,
Appellant’s counsel’s argument at the resentencing hearing that the court
should grade Appellant’s Burglary conviction as a second-degree felony was
erroneous as a matter of law.
5 The Sentencing Guidelines provide an OGS of 9 for a conviction under Section
3502(a)(1) and of 7 for a conviction under 3502(a)(2). 204 Pa.Code. §
303.15. Further, the Guidelines provide that convictions for conspiracy of a
(Footnote Continued Next Page)
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at 4. The Commonwealth argued that the court should grade Appellant’s
Conspiracy to Commit Burglary offense as a first-degree felony because the
burglary in which Appellant conspired was clearly of a structure designed for
overnight accommodation, i.e., the victim’s residence, and on at least one
occasion, the victim was, in fact present during the burglary.6 Id. at 4-5. The
court deemed Appellant’s argument waived because she did not raise it at the
time of her original sentence. The court then graded the offense—Criminal
Conspiracy to Commit Burglary of a structure adapted for overnight
accommodation—as a first-degree felony with an associated offense gravity
score (“OGS”) of 8. Id. at 8.
At the conclusion of the hearing, the court reimposed the same
aggregate sentence of 24½ to 49 years’ incarceration. It noted that, in
imposing this sentence, it had considered, inter alia, Appellant’s Pre-Sentence
Investigation Report, statements of support from her family members, her
prison records and rehabilitation efforts, her somewhat qualified acceptance
of responsibility and expression of remorse, the vulnerability of the 92-year-
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crime constituting a first-degree felony receive an OGS “of one point less than
the offense . . . which was the object of the conspiracy.” Id. at 303.3(c)(1).
Thus, Appellant believes that the court should calculate her OGS as 6 and not
8.
6 The Commonwealth also noted that the Conspiracy to Commit Burglary
offense was listed on Appellant’s Criminal Information as a first-degree felony.
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old victim, the impact of the crime on the community, the years’-long duration
of the course of Appellant’s conduct, and the argument of counsel.7
Appellant filed a Post-Sentence Motion, which the trial court denied.
This appeal followed. Both Appellant and the trial court have complied with
Pa.R.A.P. 1925.
Appellant raises the following seven issues on appeal:
I. Whether the [s]entencing [c]ourt erred when it found that
Appellant had been convicted of Conspiracy to Commit
Burglary related [to] a person being present (under 18 Pa.C.S.
[§] 3502(a)(1) rather than Conspiracy to Commit Burglary
related to a person not being present (under 18 Pa.C.S. §
3502(a)(2))?
II. Whether the [s]entencing [c]ourt erred when it found that the
issues of the grading and guideline recommendations of
Conspiracy to Commit Burglary were waived.
III. Whether the [s]entencing [c]ourt erred with it sentenced []
Appellant to the exact same period of incarceration that she
received when she was previously sentenced to a charge of
Conspiracy to Commit Homicide?
IV. Whether the [s]entencing [c]ourt erred when it sentenced []
Appellant far outside of the sentencing guidelines.
V. Whether the [s]entencing [c]ourt erred when it considered the
death of the victim (which was not an object of the conspiracy)
as a factor in sentencing?
VI. Whether the [s]entencing [c]ourt did not properly consider the
age of [] Appellant, the support of her family/friends, her
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7 Specifically, the court imposed a 10- to 20-year term of incarceration for
Appellant’s Conspiracy to Commit Burglary conviction, a consecutive 10- to
20-year term of incarceration for her Dealing in Proceeds of Unlawful Activity
conviction, a consecutive 4- to 8-year term of incarceration for her Receiving
Stolen Property conviction, and a consecutive 6-month to 1-year term of
incarceration for her Hindering Apprehension or Prosecution conviction.
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behavior during incarceration, her attempt to accept
responsibility, or her risk of recidivism when it sentenced
Appellant?
VII. Whether the [s]entencing [c]ourt demonstrated partiality,
prejudice, bias[,] and ill-will generally throughout sentencing
and particular when it noted [] Appellant should have been
charged with felony murder?
Appellant’s Brief at 3.
In her first issue, Appellant relies on Alleyne v. United States, 570
U.S. 99 (2013), to assert that the sentencing court imposed an illegal sentence
when it applied the sentencing guideline relevant to a conviction of Conspiracy
to Commit Burglary—Person Present, 18 Pa.C.S. § 3502(a)(1), rather than
the guideline applicable to a conviction of Conspiracy to Commit Burglary—No
Person Present, 18 Pa.C.S. § 3502(a)(2). Appellant’s Brief at 13-15.
Appellant argues that whether the purpose of the conspiracy in which she
participated was to burglarize an occupied or unoccupied structure was a
question of fact that the court should have, but erroneously did not, put to the
jury. Id. at 13-14. She correctly notes that both offenses are first-degree
felonies; however, the sentencing guidelines recommend a harsher
punishment for a conviction under Section 3502(a)(1) than under Section
3502(a)(2). Id. at 15. She concludes, therefore, that because the jury did
not specifically find that she intended to participate in a conspiracy the object
of which was to burglarize an occupied structure, the court improperly applied
the OGS consistent with that offense. Id.
Appellant’s reliance on Alleyne as a basis for relief fails. In Alleyne,
the United States Supreme Court held “[a]ny fact that, by law, increases the
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penalty for a crime is an ‘element’ that must be submitted to the jury and
found beyond a reasonable doubt.” Alleyne, 570 U.S. at 103. With respect
to the crime of Burglary—Person Present, the presence of a person in a
burglarized structure is not a fact that increases the penalty for Burglary and,
thus, must be separately submitted to the jury and found beyond a reasonable
doubt. Rather the presence of a person in a burglarized structure is an
element of the offense of Burglary—Person Present, 18 Pa.C.S. § 3502(a)(1),
sufficient proof of which is implicit in a jury conviction of that offense. Stated
another way, the presence of a person in a burglarized structure is an element
of the crime itself and not an element that increases the penalty for Burglary
once convicted. Thus, Alleyne is inapplicable here and Appellant’s legality of
sentence claim fails.8
In Appellant’s remaining five issues, she challenges the discretionary
aspects of her sentence. In particular, she claims that the trial court: (1)
demonstrated “vindictiveness” in imposing a new sentence for her Conspiracy
to Commit Burglary that is more severe than her original sentence for that
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8 In her related second issue, Appellant asserts that the sentencing court erred
in finding that she had waived this claim, averring that she could not have
raised it earlier. Appellant’s Brief at 15. In light of our disposition of
Appellant’s first issue, we decline to address her second issue.
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offense;9, 10 (2) erred in sentencing her outside of the sentencing guidelines;
(3) erred in considering the victim’s death as a sentencing factor; (4) did not
properly consider mitigating factors in fashioning Appellant’s sentence; and
(5) demonstrated partiality, prejudice, bias, and ill-will throughout sentencing.
Appellant’s Brief at 16-19.
Challenges to the discretionary aspects of sentence are not appealable
as of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super.
2015). Rather, an appellant challenging the sentencing court’s discretion must
invoke this Court’s jurisdiction by (1) filing a timely notice of appeal; (2)
properly preserving the issue at sentencing or in a motion to reconsider and
modify the sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a
separate section of the brief setting forth a concise statement of the reasons
relied upon for allowance of appeal with respect to the discretionary aspects
of a sentence; and (4) presenting a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S. §
9781(b). Id.
Appellant preserved this sentencing challenge in a post-sentence
motion, and filed a timely Notice of Appeal. Appellant has not, however,
included a Pa.R.A.P. 2119(f) Statement in her Brief, and the Commonwealth
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9 The trial court initially imposed no further penalty for Appellant’s Conspiracy
to Commit Burglary conviction.
10 A claim alleging judicial vindictiveness challenges the discretionary aspects
of sentence. Commonwealth v. Barnes, 167 A.3d 110, 122-23 (Pa. Super.
2017)
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has objected to this omission. See Commonwealth’s Brief at 10. Appellant
has, thus, waived her challenge to the discretionary aspects of her sentence.
See Commonwealth v. Sanchez, 848 A.2d 977, 986 (Pa. Super. 2004)
(holding that appellant waived challenge to discretionary aspects of sentence
where he failed to include in his brief a Pa.R.A.P. 2119(f) Statement).
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/12/2021
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