Com. v. Gillespie, D.

J-A29036-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DWIGHT GILLESPIE, :
:
Appellant : No. 1955 WDA 2014
Appeal from the Judgment of Sentence entered on May 27, 2014
in the Court of Common Pleas of Erie County,
Criminal Division, No. CP-25-CR-0000918-2013
BEFORE: FORD ELLIOTT, P.J.E., BOWES and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 10, 2015
Dwight Gillespie (“Gillespie”) appeals from the judgment of sentence
imposed following his conviction of two counts of receiving stolen property.1
We affirm Gillespie’s convictions, vacate Gillespie’s judgment of sentence,
and remand for resentencing.
On March 13, 2014, a jury convicted Gillespie of the above crimes,
which were listed as Counts 11 and 13, respectively, in the Amended
Criminal Information.2 On May 27, 2014, the sentencing court sentenced
Gillespie to two concurrent terms of 48 to 120 months in prison for his
convictions, to be served consecutively to a prior sentence for which
1
See 18 Pa.C.S.A. § 3925(a).
2
At Count 11, Gillespie was charged with receiving jewelry and electronics
that were stolen from the home of Steven Fenner (“Fenner”). At Count 13,
Gillespie was charged with receiving a gun stolen from the home of Paul
Hanson.
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Gillespie was on parole. The sentencing court also ordered Gillespie to pay
restitution in the amount of $11,313.44.3 The sentencing court did not
award any credit for the time that Gillespie had served in prison from the
date of his arraignment, November 28, 2012, until the date he was
sentenced.4 On June 9, 2014, Gillespie filed a post-trial Motion, requesting
modification of his sentence.5 The trial court denied Gillespie’s post-trial
Motion on June 10, 2014. Gillespie did not file a direct appeal. However,
Gillespie subsequently filed a Petition pursuant to the Post Conviction Relief
Act,6 seeking reinstatement of his direct appeal rights. The Commonwealth
consented to Gillespie’s Petition, resulting in the reinstatement of his direct
3
In its Sentencing Order, the sentencing court did not state to whom the
restitution amount was payable. See Sentencing Order, 5/27/14, at 1.
4
The record reflects that, on November 28, 2012, upon his arraignment for
the charges at issue in this appeal, Gillespie was unable to post the $50,000
bail amount imposed, and thereafter remained in prison from the time of his
arraignment through trial and sentencing.
5
In his post-trial Motion, Gillespie argued that the sentencing court had
imposed a sentence in the aggravated range because Gillespie was on parole
for prior convictions, and urged the court to reduce his sentence to a term
within the mitigated range because (1) Gillespie would be resentenced at the
prior docket; (2) Gillespie was acquitted of all counts that he participated in
the burglaries at issue; and (3) Gillespie testified for the Commonwealth in a
companion trial, thereby aiding in the conviction of a co-conspirator. See
Post-Trial Motion, 6/9/14, at 2 (unnumbered). In his Motion, Gillespie also
asserted, superficially, that the verdict was against the weight of the
evidence, the evidence was insufficient to support the verdict, the
Commonwealth failed to prove the items found in Gillespie’s possession were
stolen, and the jury rendered inconsistent verdicts. See id. at 2-3
(unnumbered).
6
See 42 Pa.C.S.A. §§ 9541-9546.
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appeal rights, nunc pro tunc. Gillespie thereafter filed a timely Notice of
Appeal, and a court-ordered Pa.R.A.P. 1925(b) Statement of Matters
Complained of on Appeal.
On appeal, Gillespie raises the following questions for our review:
1. Whether [Gillespie’s] sentence at Count 11 is illegal because
the restitution imposed in the amount of $11,313.44 was
neither proven during trial[,] nor found by the fact[-]finder to
be the amount of restitution for the items found in
[Gillespie’s] home that had not already been returned?
2. Whether the [sentencing] court erred when it failed to impose
the restitution amount at Count 11 to be paid joint [sic] and
several [sic] with the co-defendants?
3. Whether [Gillespie] is serving an illegal sentence because he
was denied time credit applied to his sentence?
4. Whether the grading of the offense at Count 11, receiving
stolen property, was in error[,] as the amount of the theft
established during trial did not support a second-degree
felony grading for the offense?
5. Whether the sentencing court abused its discretion by relying
on guidelines calculated with an erroneous offense gravity
score[,] when the sentencing count fashioned [Gillespie’s]
sentence at Count 11?
Brief for Appellant at 3 (some capitalization omitted, issues renumbered for
ease of disposition).
In his first claim, Gillespie contends that although the jury found him
guilty of receiving property stolen from Fenner’s home, the jury never
determined the value of such property. Id. at 17. Gillespie points out
Fenner’s trial testimony that the stolen items found in Gillespie’s possession
included an Xbox 360 gaming system, an Xbox game, a laptop computer, a
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television, two cameras and a portion of the jewelry stolen from the Fenner
home. Id. Gillespie also points out the prosecutor’s arguments at trial that
the total valuation of Fenner’s stolen property that was found in Gillespie’s
possession, based on Fenner’s trial testimony, was approximately $2,100 to
$2,200. Id. Gillespie claims that the restitution amount of $11,313.44 that
he was ordered to pay is not supported by Fenner’s testimony or the
prosecutor’s arguments at trial. Id. at 18. Gillespie argues that “a
challenge to the amount of restitution implicates the legality of the sentence
and cannot be waived.” Id. (emphasis supplied).
Contrary to Gillespie’s assertion otherwise, a claim challenging the
amount of restitution imposed by the sentencing court presents a challenge
to the discretionary aspects of sentencing. In the Interest of M.W., 725
A.2d 729, 731 n.4 (Pa. 1999) (holding that “[w]here such a challenge is
directed to the trial court’s authority to impose restitution, it concerns the
legality of the sentence; however, where the challenge is premised upon a
claim that the restitution order is excessive, it involves a discretionary
aspect of sentencing.”).
Although Gillespie has framed his issue as implicating the legality of
the restitution Order imposed by the trial court, a review of his brief reveals
that the essence of his argument is that the amount of restitution imposed is
excessive. See Brief for Appellant at 17-18 (wherein Gillespie argues that
the restitution amount of $11,313.44 for the stolen items is not supported
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by the valuations of $2,100 to $2,200 established through Fenner’s
testimony and the Commonwealth’s arguments).7 Thus, Gillespie’s claim
constitutes a challenge to the discretionary aspects of the sentencing court’s
restitution Order.
“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, [see] 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, [see] 42
Pa.C.S.A. § 9781(b).
Moury, 992 A.2d at 170 (citation omitted).
In the instant case, Gillespie filed a timely Notice of Appeal, and
included in his appellate brief a separate Rule 2119(f) statement. However,
7
While Gillespie also argues that the sentencing court failed to take into
consideration that stolen property was returned to Fenner, see Brief for
Appellant at 17-18, the record reflects that some of the property stolen from
the Fenner home was never returned, and certain of the items received by
Gillespie were returned to the Fenners in a damaged condition, requiring
their replacement. See N.T. (Trial), 3/12/14, at 44-50 (wherein Fenner
testified that only two of three stolen televisions were returned; only one of
two stolen laptops was returned, and the returned laptop was inoperable;
and that, although some of his wife’s costume jewelry and a few pieces real
jewelry had been recovered, approximately $8,600 worth of real jewelry was
not recovered).
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Gillsepie did not preserve his claims at sentencing or in a post-sentence
Motion.8 As such, he failed to comply with the requirements necessary to
challenge the discretionary aspects of his sentence. See Commonweath v.
Tejada, 107 A.3d 788, 799 (Pa. Super. 2015) (holding that, because the
defendant had failed to preserve the arguments in support of his
discretionary aspects of sentencing claim at his sentencing or in his post-
sentence motion, they were not subject to appellate review.). Thus,
Gillespie has failed to preserve this issue for our review.9
In Gillespie’s second claim, he contends that the trial court failed to
require that the restitution amount of $11,313.44 at Count 11 be paid jointly
and severally with his co-defendants. Brief for Appellant at 18.
8
Although Gillespie filed a post-trial Motion, he failed to raise any issue
regarding the restitution amount in that Motion.
9
Even if we were to conclude that Gillespie’s challenge to the restitution
amount implicated the legality of his sentence, we would have determined
that such challenge lacks merit. Here, the Commonwealth presented, at
sentencing, the Restitution Claim Form prepared by the Fenners, which
itemized the property stolen from their home, and included documentation
showing that, although they were reimbursed $6,690.91 by their
homeowners insurance company, they sustained an additional $4,622.53 in
unreimbursed losses as a result of the theft, resulting in a total loss of
$11,313.44. While, as noted above, the sentencing court did not state in its
Sentencing Order to whom the restitution amount was payable, see
Sentencing Order, 5/27/14, at 1, presumably, the insurance company
becomes the payee for the amounts that it reimbursed Fenner, and Fenner
becomes the payee for his family’s unreimbursed losses. See In the
Interest of Dublinski, 695 A.2d 827, 831 (Pa. Super. 1997). However, as
discussed infra, upon remand, this must be clarified.
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Initially, “[t]he Rules of Appellate Procedure state unequivocally that
each question an appellant raises is to be supported by discussion and
analysis of pertinent authority.” Coulter v. Ramsden, 94 A.3d 1080, 1088
(Pa. Super. 2014); see also Pa.R.A.P. 2119(a) (stating that the appellant’s
brief “shall have ... such discussion and citation of authorities as are deemed
pertinent.”). “Appellate arguments which fail to adhere to these rules may
be considered waived, and arguments which are not appropriately developed
are waived. Arguments not appropriately developed include those where the
party has failed to cite any authority in support of a contention.” Coulter,
94 A.3d at 1088 (citation omitted); see also Hercules v. Jones, 609 A.2d
837, 840 (Pa. Super. 1992) (characterizing claims unsupported by argument
linking relevant authority to the facts of the case as “phantom arguments,”
which are waived).
We need not reach the merits of Gillespie’s second issue because the
argument section of his brief relating to this issue consists of general
statements unsupported by any discussion or analysis of relevant legal
authority. See Brief for Appellant at 18. Accordingly, we conclude that
Gillespie’s failure to develop this argument in any meaningful fashion
precludes our review of this issue. See Coulter, 94 A.3d at 1088-89.10
10
Even if Gillespie had properly developed this issue, we would have
concluded that it lacks merit, as our review of the record discloses no co-
defendants in this case. See Sentencing Court Opinion, 12/23/14, at 1
(wherein the sentencing court states that there were no co-defendants tried
with Gillespie).
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In his third issue, Gillespie asserts that the trial court failed to give him
credit for time served. Such a claim presents a non-waivable challenge to
the legality of the sentence imposed. See Commonwealth v. Davis, 852
A.2d 392, 399-400 (Pa. Super. 2004) (holding that an attack upon the trial
court’s failure to give credit for time served is an attack upon the legality of
the sentence, which cannot be waived).
Gillespie contends that the Presentence Investigation Report (“PSI”)
informed the sentencing court that Gillespie was “incarcerated 11/28/12 to
present at this docket [docket 918 of 2013]. He has also been incarcerated
since 10/25/12 on a state parole detainer.” Brief for Appellant at 9 (citing
PSI at 1). Gillespie asserts that the sentencing court nevertheless denied
him credit for time served on the present docket, 918 of 2013, and
supported its decision by stating that the credit for time served should go to
Gillespie’s prior sentence at docket 117 of 2009, for which Gillespie was
already under sentence. Brief for Appellant at 9 (citing N.T. (Sentencing),
5/27/14, at 9). Gillespie claims that the trial court failed to recognize the
difference between a criminal defendant who is actively serving a state
prison sentence and a criminal defendant held on a parole detainer. Brief for
Appellant at 10. Gillespie argues that nothing in the record supports the trial
court’s erroneous determination that his parole at docket 117 of 2009 had
been revoked prior to the May 27, 2014 sentencing hearing. Id. Gillespie
contends that, for the majority of the time prior to that hearing, he was also
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being held on the new charges filed against him in this case. Id. Gillespie
asserts that he should have received time credit from November 28, 2012,
when he was initially held on the $50,000 bail amount, to the date he was
sentenced on May 27, 2014. Id. at 12.
In Commonwealth v. Mann, 957 A.2d 746 (Pa. Super. 2008), this
Court discussed the manner in which credit for time served is to be
apportioned in cases where a criminal defendant is awaiting trial for new
charges while simultaneously awaiting disposition of an alleged
parole/probation violation:
all time served by a parole violator while awaiting disposition on
new charges must be credited to the original sentence if he or
she remains in custody solely on a Board detainer. If the
defendant is incarcerated prior to disposition, and has
both a detainer and has failed for any reason to satisfy
bail, the credit must be applied to the new sentence by
the sentencing court. In this circumstance, the credit must be
applied by the trial court as a sentencing condition, as the Board
and the Commonwealth Court have no jurisdiction to alter
sentencing conditions on later review. If the new sentence is
shorter than the time served, the balance can be applied to the
original sentence, but the sentencing court must specify “time
served” in the sentencing order for the new offense, so that the
Board will be able to apply the credit.
Id. at 751 (citations omitted, emphasis supplied).
Here, the record reflects that, on November 28, 2012, upon his
arraignment for the charges at issue in this appeal, Gillespie was unable to
post the $50,000 bail amount imposed, and therefore remained in prison
from the time of his arrest through trial and sentencing. Thus, credit for the
time Gillespie served from his arrest date until his sentencing date should
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have been applied to the new sentence imposed by the sentencing court.
See id. Because the sentencing court failed to award Gillespie credit at
docket 918 of 2013, for the period from November 28, 2012, to May 27,
2014 during which Gillespie was incarcerated for the charges of receiving
stolen property, we vacate Gillespie’s sentence and remand for resentencing
so that such credit may be applied.
Gillespie’s fourth claim involves an assertion that the trial court
improperly graded his offenses of receiving stolen property at Counts 11 and
13. A question as to the proper grading of an offense goes to the legality of
the sentence and not the discretionary aspects; hence, it is non-waivable.
Commonwealth v. Sanchez, 848 A.2d 977, 986 (Pa. Super. 2004).
Gillespie points out that, in its verdict, the jury did not make a specific
determination of the value of the Fenners’ stolen jewelry and electronics that
Gillespie was found to have received at Count 11. Brief for Appellant at 15.
Gillespie asserts that, even if the jury believed the Commonwealth’s
evidence that the total value of the stolen jewelry and electronics that
Gillespie received was between $2,100 and $2,200, then the offense of
receiving stolen property at Count 11 should have been graded as a third-
degree felony, as the receipt of stolen property valued between $2,000 and
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$25,000 constitutes a third-degree felony under the applicable guidelines.11
Id. Gillespie claims that the sentencing court erroneously graded Count 11
as a second-degree felony. Id. Thus, Gillespie argues, his sentence should
be vacated because the offense of receiving stolen property at Count 11
should have been graded as a third-degree felony. Id.
Additionally, Gillespie contends that the offense of receiving stolen
property at Count 13 was also improperly graded. Id. n.3.12 Gillespie
asserts that a conviction for the receipt of a stolen firearm, by a person who
is not in the business of buying and selling firearms, constitutes a first-
degree misdemeanor. Id. Gillespie claims that the sentencing court
erroneously graded Count 13 as a second-degree felony. Id.
Our review of the 6th Edition of the Sentencing Guidelines13 reflects
that the crime of receiving stolen property valued over $2,000 and less than
$25,000 constitutes a felony of the third degree. The testimony of the
owner of stolen goods is sufficient to establish the value of those goods in
11
Gillespie points out that his crimes of receiving stolen property arise from
events that occurred on or about October 24, 2012. Brief for Appellant at
13. Gillespie asserts the 6th Edition of the Sentencing Guidelines applies to
his crimes, rather than the 7th Edition, which applies to sentences for crimes
that were committed on or after December 28, 2012. Id.
12
Although Gillespie did not raise this issue, as it pertains to Count 13, in his
Pa.R.A.P. 1925(b) Statement, this claim is non-waivable, as it presents a
question regarding the legality of his sentence. See Sanchez, 848 A.2d at
986.
13
Upon request by this Court, the sentencing court provided a copy of the
relevant provisions of the 6th Edition of the Sentencing Guidelines as a
supplement to the record on appeal.
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criminal cases, and the weight to be accorded to such testimony is for the
fact-finder. See Comonwealth v. Stafford, 416 A.2d 570, 573 (Pa. Super.
1979).
Here, Fenner testified at trial regarding the items stolen from his home
that were later found in Gillespie’s possession, and the approximate cost of
each item. See N.T. (Trial), 3/12/14, at 44-50; see also N.T. (Trial),
3/13/14, at 61 (where the Commonwealth summarized Fenner’s valuation
testimony and calculated the total value of the items received by Gillespie at
$2,100 to $2,200). Thus, the Commonwealth presented sufficient evidence
regarding the value of the items received by Gillespie that were stolen from
Fenner. See Commonwealth v. Figueroa, 859 A.2d 793, 798 (Pa. Super.
2004) (upholding the grading of defendant’s conviction for theft by
deception because the Commonwealth had presented evidence of the value
of the stolen property). Using the total value of the Fenner’s stolen items
presented at trial, the sentencing court should have graded the offense at
Count 11 as a third-degree felony, pursuant to the applicable guidelines.
Thus, although we affirm Gillespie’s conviction at Count 11, we must vacate
Gillespie’s sentence and remand for resentencing, so that Count 11 may be
properly graded by the sentencing court.
The 6th Edition of the Sentencing Guidelines also indicates that the
receipt of a firearm, by a receiver who is not in the business of
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buying/selling firearms,14 is classified as a first-degree misdemeanor.
Nevertheless, our review discloses that the sentencing court graded the
offense at Count 13 as a second-degree felony. Thus, although we affirm
Gillespie’s conviction at Count 13, we vacate Gillespie’s sentence and
remand for resentencing, so that Count 13 may be properly graded by the
sentencing court.
Given our disposition of Gillespie’s fourth claim, we need not address
his fifth claim, which implicates the discretionary aspects of his sentence.
See Commonwealth v. Archer, 722 A.2d 203, 210-11 (Pa. Super. 1998)
(holding that an allegation that the trial court miscalculated the offense
gravity score presents a challenge to the discretionary aspects of
sentencing).
Accordingly, we affirm Gillespie’s convictions, but vacate his sentence
and remand for the imposition of a new sentence that (1) provides Gillespie
with credit for time served at docket 918 of 2013 for the period from
November 28, 2012, to May 27, 2014; (2) properly grades Gillespie’s
offenses at Counts 11 and 13; and (3) clarifies the individuals and/or entities
to whom restitution is payable, and the restitution amounts payable to each.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
14
None of the criminal pleadings in this action allege that Gillespie was in the
business of buying and selling firearms, and the sentencing documents
indicate that Gillespie was sentenced at Count 13 as a receiver not in the
business of buying and selling firearms.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/2015
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