Com. v. Montes, A.

J-S79035-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANGEL MONTES, :
:
Appellant : No. 1265 EDA 2014
Appeal from the Judgment of Sentence Entered March 25, 2014,
in the Court of Common Pleas of Delaware County,
Criminal Division, at No(s): CP-23-CR-0004185
BEFORE: ALLEN, OLSON, and STRASSBURGER, JJ.*
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 10, 2015
Angel Montes (Appellant) appeals from the judgment of sentence
entered March 25, 2014 following his conviction for various drug offenses.
We vacate Appellant’s judgment of sentence and remand for resentencing.
On March 1, 2010, Appellant pled guilty and was sentenced to two to
four years of incarceration for possession of a controlled substance with
intent to deliver at CP-23-CR-0006909-2009. Appellant was paroled in June
of 2012. On May 27, 2013, Appellant failed to appear at a scheduled
appointment with his parole agent, Arthur Rothwell. On June 12, 2013,
Agent Rothwell went to Appellant’s home on Wanamaker Avenue in
Essington, Pennsylvania, and left a note advising him to come to Rothwell’s
office the following day.
*Retired Senior Judge assigned to the Superior Court.
J-S79035-14
On June 13, 2013, Appellant appeared at Agent Rothwell’s office with
his young son. When asked to submit a urine sample, Appellant informed
Agent Rothwell that he would likely test “hot,” or positive, for marijuana. In
response, Agent Rothwell informed his supervisor of Appellant’s statement,
as well as the charges for which he was on parole. After arrangements were
made for Appellant’s child, a search of his person was conducted. This
search did not reveal any contraband. Agent Rothwell, his supervisor, and
two other parole agents then conducted a search of Appellant’s home and
vehicle.
During the search of Appellant’s bedroom, Agent Rothwell discovered
in the top dresser drawer a box containing $610, underneath of which was a
digital scale. Another drawer contained a bag of suspected marijuana.
Additionally, a child’s book bag in the bedroom was found to contain
suspected cocaine, both loose and packaged for sale, as well as other drug
paraphernalia. Subsequently, Appellant was arrested and charged with
multiple offenses stemming from the search of his home.
On September 24, 2013, Appellant filed a motion to suppress physical
evidence. A hearing was held on October 17, 2013, and on November 7,
2013, the trial court denied Appellant’s motion. On February 26, 2014,
following a jury trial, Appellant was found guilty of possession of a controlled
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substance with intent to deliver (cocaine), possession of a small amount of
marijuana, and possession of drug paraphernalia.
On March 25, 2014, Appellant was sentenced to an aggregate term of
five to ten years’ incarceration. This timely appeal followed. Appellant
complied with the trial court’s request to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises two issues on appeal. Appellant’s Brief at 5. First, he
contends that Agent Rothwell lacked the reasonable suspicion necessary to
conduct a warrantless search of his vehicle and residence. Id. at 15-17. He
also argues, pursuant to Alleyne v. United States, 133 S. Ct. 2151 (2013),
that the mandatory minimum sentence imposed in this matter is illegal and
must be vacated. Id.1
We address Appellant’s first issue mindful of the following.
Our analysis of this question begins with the presumption that
where a motion to suppress has been filed, the burden is on the
Commonwealth to establish by a preponderance of the evidence
that the challenged evidence is admissible. If the trial court
denies the motion, we must determine whether the record
supports the trial court’s factual findings and whether the legal
conclusions drawn therefrom are free from error. In so doing,
we may consider only the evidence of the prosecution and so
1
This claim is not contained in Appellant’s 1925(b) statement. However, we
address it “despite the appellant’s failure to preserve the issue below,
because a challenge to a sentence premised upon Alleyne... implicates the
legality of the sentence and, thus, it cannot be waived on appeal.”
Commonwealth v. Vargas, __ A.3d __, 2014 WL 7447678 (Pa. Super.
filed December 31, 2014) (en banc).
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much of the evidence for the defense as remains uncontradicted
when read in the context of the record as a whole. Where the
record supports the findings of the suppression court, we are
bound by those facts and may reverse only if the court erred in
reaching its legal conclusions based upon the facts.
Commonwealth v. Berkheimer, 57 A.3d 171, 177 (Pa. Super. 2012) (en
banc) (citations and quotations omitted).
As noted above, at the time of the search of Appellant’s vehicle and
residence, he was serving a parole sentence. Searches of parolees
suspected of possessing contraband are governed by 61 Pa.C.S. § 6153,
which provides, in relevant part:
(b) Searches and seizures authorized.--
(1) Agents may search the person and property of
offenders in accordance with the provisions of this
section.
(2) Nothing in this section shall be construed to
permit searches or seizures in violation of the
Constitution of the United States or section 8 of
Article I of the Constitution of Pennsylvania.
***
(d) Grounds for personal search of offender.--
(1) A personal search of an offender may be
conducted by an agent:
(i) if there is a reasonable suspicion to
believe that the offender possesses
contraband or other evidence of
violations of the conditions of
supervision;
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***
(2) A property search may be conducted by an agent
if there is reasonable suspicion to believe that the
real or other property in the possession of or under
the control of the offender contains contraband or
other evidence of violations of the conditions of
supervision.
Id.
Appellant argues that the search of his vehicle and home violated his
constitutional rights because (1) without inquiring further into Appellant’s
statement that his urine sample would be “hot,” Agent Rothwell did not have
reasonable suspicion to support a search of Appellant’s vehicle or residence,
and (2) the search was not reasonably related to the suspected narcotics
violation (i.e., use of marijuana). Appellant’s Brief at 16.
As noted above, a property search may be conducted by a parole
agent “if there is reasonable suspicion to believe that the real or other
property in the possession of or under the control of the offender contains
contraband or other evidence of violations of the conditions of
supervision.” 61 Pa.C.S. § 6153(d)(2) (emphasis added). The statute
further provides that
(6) The existence of reasonable suspicion to search
shall be determined in accordance with constitutional
search and seizure provisions as applied by judicial
decision. In accordance with such case law, the
following factors, where applicable, may be taken
into account:
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(i) The observations of agents.
(ii) Information provided by others.
(iii) The activities of the offender.
(iv) Information provided by the
offender.
(v) The experience of agents with the
offender.
(vi) The experience of agents in similar
circumstances.
(vii) The prior criminal and supervisory
history of the offender.
(viii) The need to verify compliance with
the conditions of supervision.
61 Pa.C.S. § 6153(d)(6).
As this Court has stated:
[b]ecause the very assumption of the institution of parole is that
the parolee is more likely than the ordinary citizen to violate the
law, the agents need not have probable cause to search a
parolee or his property; instead, reasonable suspicion is
sufficient to authorize a search. Essentially, parolees agree to
endure warrantless searches based only on reasonable suspicion
in exchange for their early release from prison.
The search of a parolee is only reasonable, even where the
parolee has signed a waiver ..., where the totality of the
circumstances demonstrate that (1) the parole officer had
reasonable suspicion to believe that the parolee committed a
parole violation; and (2) the search was reasonably related to
the duty of the parole officer. The determination of whether
reasonable suspicion exists is to be considered in light of the
totality of the circumstances.
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Commonwealth v. Colon, 31 A.3d 309, 315 (Pa. Super. 2011) (citations
omitted).
The record reveals the following facts. Appellant failed to appear for a
scheduled parole meeting. Agent Rothwell testified that he suspected
Appellant may have missed this appointment due to “possible use of illegal
substances, which is why [he] wanted to get a urine [sample] from
[Appellant.]” N.T., 10/17/2013, at 30. When Appellant came to Agent
Rothwell’s office on June 13, 2013, he brought his young son. Agent
Rothwell testified that it is was not unusual for parolees to bring children
with them to appointments as a way to avoid arrest. Id. at 31. Appellant
then confirmed to Agent Rothwell that his urine sample would likely test
positive for marijuana. Agent Rothwell, knowing that Appellant’s parole-
approved residence on Wanamaker Avenue was also the location of his
underlying narcotics trafficking conviction, requested permission from his
supervisor to search Appellant’s vehicle and residence for narcotics and
related paraphernalia.
Based on the totality of the circumstances, including a consideration of
the factors set forth in 61 Pa.C.S. § 6153(d)(6), we agree with the trial court
that Agent Rothwell had reasonable suspicion to believe that Appellant had
violated his parole and that Appellant’s vehicle and residence contained
contraband. Therefore, he was permitted to search those locations.
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Commonwealth v. Koehler, 914 A.2d 427 (Pa. Super. 2006) (holding
warrantless search of parolee’s residence permitted where parole agent had
reasonable suspicion to suspect residence contained evidence of a crime or
violation of condition of parole). Accordingly, we hold that the trial court did
not err in denying Appellant’s motion to suppress.
Appellant next challenges the legality of his sentence, arguing that the
trial court unlawfully imposed a mandatory minimum sentence pursuant to
18 Pa.C.S. § 7508, which provides, in relevant part:
(3) A person who is convicted of violating section
13(a)(14), (30) or (37) of The Controlled Substance, Drug,
Device and Cosmetic Act where the controlled substance is
coca leaves or is any salt, compound, derivative or
preparation of coca leaves or is any salt, compound,
derivative or preparation which is chemically equivalent or
identical with any of these substances or is any mixture
containing any of these substances except decocainized
coca leaves or extracts of coca leaves which (extracts) do
not contain cocaine or ecgonine shall, upon conviction, be
sentenced to a mandatory minimum term of imprisonment
and a fine as set forth in this subsection:
(ii) when the aggregate weight of the compound or
mixture containing the substance involved is at least
ten grams and less than 100 grams; three years in
prison and a fine of $15,000 or such larger amount
as is sufficient to exhaust the assets utilized in and
the proceeds from the illegal activity; however, if at
the time of sentencing the defendant has been
convicted of another drug trafficking offense: five
years in prison and $30,000 or such larger amount
as is sufficient to exhaust the assets utilized in and
the proceeds from the illegal activity[.]
***
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(b) Proof of sentencing.--Provisions of this section shall not
be an element of the crime. Notice of the applicability of this
section to the defendant shall not be required prior to conviction,
but reasonable notice of the Commonwealth’s intention to
proceed under this section shall be provided after conviction and
before sentencing. The applicability of this section shall be
determined at sentencing. The court shall consider evidence
presented at trial, shall afford the Commonwealth and the
defendant an opportunity to present necessary additional
evidence and shall determine, by a preponderance of the
evidence, if this section is applicable.
18 Pa.C.S. § 7508(a)(3)(ii), (b).
The United States Supreme Court, in Alleyne, held that any facts
leading to an increase in a mandatory minimum sentence are elements of
the crime and must be presented to a jury and proven beyond a reasonable
doubt.
According to the Alleyne Court, a fact that increases the
sentencing floor is an element of the crime. Thus, it ruled that
facts that mandatorily increase the range of penalties for a
defendant must be submitted to a fact-finder and proven beyond
a reasonable doubt. The Alleyne decision, therefore, renders
those Pennsylvania mandatory minimum sentencing statutes
that do not pertain to prior convictions constitutionally infirm
insofar as they permit a judge to automatically increase a
defendant’s sentence based on a preponderance of the evidence
standard.
Commonwealth v. Watley, 81 A.3d 108, 117 (Pa. Super. 2013) (en banc)
(footnote omitted).
This Court’s recent decisions in Commonwealth v. Newman, 99
A.3d 86 (Pa. Super. 2014) (en banc) and Commonwealth v. Valentine,
101 A.3d 801, (Pa. Super. 2014) are instructive.
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In Newman, we reviewed the constitutionality of 42 Pa.C.S.A.
§ 9712.1, which enhances the minimum sentence where a
firearm is found on a drug dealer, an accomplice, or in the
vicinity of the contraband. …
[***]
We explained in Newman that under Alleyne, the factual
predicates for imposition of the § 9712.1 mandatory minimum
sentence (i.e., that the firearm was found on a drug dealer, an
accomplice or in the vicinity of the contraband) “must be pleaded
in the indictment, and must be found by the jury beyond a
reasonable doubt before the defendant may be subjected to an
increase in the minimum sentence.” Concluding that the factual
predicates for imposition of the mandatory minimum sentence
had not been presented to a jury, we vacated the judgment of
sentence.
Valentine, 101 A.3d at 810 (2014) (citations omitted) (quoting Newman,
99 A.3d at 98, 101-02). Thus, in Newman, this Court remanded for
resentencing without consideration of the mandatory minimum sentences
provided in Section 9712.1. Newman, 99 A.3d at 103. Applying Newman,
the Court in Valentine vacated the judgment of sentence and remanded for
resentencing without consideration of the mandatory minimum sentences at
42 Pa.C.S. §§ 9712 and 9713. Valentine, 101 A.3d at 812 & n.4.
More recently, in Commonwealth v. Fennell, --- A.3d ---, 2014 WL
6505791 (Pa. Super. 2014), this Court, applying the rationale of Valentine
and Newman, determined that, notwithstanding the fact triggering the
imposition of a mandatory sentence under section 7508 was stipulated to at
trial, the statute was facially unconstitutional. We are bound by this holding.
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Thus, based on the foregoing, we vacate Appellant’s sentence and remand
for resentencing without consideration of the mandatory minimum sentences
provided in section 7508.
Convictions affirmed. Judgment of sentence vacated. Case remanded.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2015
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