Com. v. Settles, R.

J-A01027-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RICHARD ALLEN SETTLES, JR., :
:
Appellant : No. 1729 WDA 2013
Appeal from the Judgment of Sentence October 9, 2013,
Court of Common Pleas, Fayette County,
Criminal Division at No. CP-26-CR-0000210-2012
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and ALLEN, JJ.
MEMORANDUM BY DONOHUE, J.: FILED FEBRUARY 24, 2015
Richard Allen Settles, Jr. (“Settles”) appeals from the judgment of
sentence entered following his convictions of possession of a controlled
substance and possession of a controlled substance with the intent to deliver
(“PWID”).1 Settles challenges only the trial court’s denial of his motion to
suppress. We find no error in the trial court’s denial of Settles’ suppression
motion but conclude that his sentence is illegal. Accordingly, we vacate the
judgment of sentence and remand for resentencing.
The trial court summarized the facts underlying Settles’ convictions as
follows:
On January 27, 2012, around 1:12 a.m., Patrolman
Jamie Holland of the Uniontown Police Department,
conducted a traffic stop on a van that failed to use a
right turn signal at an intersection. N.T., 7/31/2012,
1
35 P.S. § 780-113(a)(16), (30).
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at 3-4. As he exited his vehicle, Holland immediately
detected the odor of marijuana coming from the van,
the smell of which grew stronger as he neared the
van. Id. at 6-7. After asking the driver of the van, []
Settles, for his identification, the officer alerted him
that he could smell marijuana coming from the
vehicle. Id. at 7.
Because of the odor of the marijuana, Holland had
[Settles] exit the vehicle. Id. at 8. To ensure
officer’s safety, Holland performed a Terry frisk on
[Settles] to check for weapons. Id. at 8-9. During
the pat down, in [Settles’] pants pocket, from the
feel and packaging, the officer felt what he
recognized to be a packaged narcotic. Id. at 9. The
item was a small amount of marijuana in a clear
plastic baggie that was tied and knotted in the corner
of the baggie. Id. The officer then proceeded to
conduct an investigative search of the driver’s area
by looking into the van but[] not by entering the
van. Id. at 10, 23-24. As he looked into the van,
Holland could see, in plain view, a garbage bag with
marijuana packed inside. Id. at 10, 23. Upon
viewing the packaged marijuana, he obtained a
search warrant to search the van. Id. at 11.
Trial Court Opinion, 4/7/14, at 2-3. The search of the van revealed two
garbage bags full of marijuana, weighing a total of 22,740 grams (or 50.13
pounds). The marijuana recovered from Settles’ front pocket weighed 2.9
grams. Following a jury trial, Settles was convicted of the above-mentioned
crimes and sentenced to five years of imprisonment2 and ordered to pay
various fines and costs. This timely appeal follows.
2
The trial court imposed this sentence on the PWID charge pursuant to 18
Pa.C.S.A. § 7508(a)(1)(iii). See Trial Court Order, 10/9/13, at 1.
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Settles sets forth two issues for our review in the statement of
questions involved portion of his brief on appeal: “Whether all evidence
should be suppressed when the Terry [f]risk [r]ule was violated” and
“Whether the [e]xclusionary [r]ule applies to the warrantless search of
vehicle [sic].” Settles’ Brief at 7.3
Our standard of review in addressing a challenge to
the denial of a suppression motion is limited to
determining whether the suppression court's factual
findings are supported by the record and whether
the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before
the suppression court, we may consider only the
evidence of the Commonwealth and so much of the
evidence for the defense as remains uncontradicted
when read in the context of the record as a whole.
Where the suppression court's factual findings are
supported by the record, we are bound by these
findings and may reverse only if the court's legal
conclusions are erroneous. The suppression court's
legal conclusions are not binding on an appellate
court, whose duty it is to determine if the
suppression court properly applied the law to the
facts. Thus, the conclusions of law of the courts
below are subject to our plenary review. Moreover,
appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when
examining a ruling on a pre-trial motion to suppress.
Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014).
3
In the argument section of his brief, Settles does not delineate two
separate arguments. This runs afoul of our rules, which provide that “[t]he
argument shall be divided into as many parts as there are questions to be
argued; and shall have at the head of each part--in distinctive type or in
type distinctively displayed--the particular point treated therein, followed by
such discussion and citation of authorities as are deemed pertinent.”
Pa.R.A.P. 2119(a). We urge Settles’ counsel to hew more closely to the
rules governing briefing requirements in the future.
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The thrust of Settles’ issues is that Officer Holland could not search his
vehicle without a warrant, and therefore that the trial court should have
suppressed the evidence found therein. We cannot agree. In
Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), the Pennsylvania
Supreme Court removed the twin requirements of both probable cause and
exigency for a lawful search of an automobile without a warrant. It held as
follows:
In sum, our review reveals no compelling
reason to interpret Article I, Section 8 of the
Pennsylvania Constitution as providing greater
protection with regard to warrantless searches
of motor vehicles than does the Fourth
Amendment. Therefore, we hold that, in this
Commonwealth, the law governing warrantless
searches of motor vehicles is coextensive with
federal law under the Fourth Amendment. The
prerequisite for a warrantless search of a
motor vehicle is probable cause to search;
no exigency beyond the inherent mobility
of a motor vehicle is required. The
consistent and firm requirement for probable
cause is a strong and sufficient safeguard
against illegal searches of motor vehicles,
whose inherent mobility and the endless
factual circumstances that such mobility
engenders constitute a per se exigency
allowing police officers to make the
determination of probable cause in the first
instance in the field.
Gary, 91 A.3d at 138 (emphasis added). Thus, an officer may lawfully
search an automobile without a warrant when he or she has probable cause
to believe that a crime has been committed or is being committed. At the
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suppression hearing, Officer Holland testified that he smelled an
overwhelming aroma of marijuana (not burning marijuana) emanating from
Settles’ vehicle. N.T., 7/31/12, at 8. This provided probable cause to
believe that criminal activity was occurring, see Commonwealth v. El, 933
A.2d 657, 661 (Pa. Super. 2007), aff'd, 602 Pa. 126, 977 A.2d 1158 (2009)
(“The standard for probable cause is whether the facts and circumstances
within the officer's knowledge are sufficient to warrant a reasonably cautious
person to believe that an offense has been or is being committed.”), and
therefore permitted a lawful search of the vehicle without a warrant.4
We now turn our attention to Settles’ sentence.5 The trial court
imposed only a minimum sentence of five years. Trial Court Order, 10/9/13,
4
We pause to note two things. First, although the Gary decision was
published four months before the briefs in this case were filed, neither
Settles nor the Commonwealth mention it. Settles contended, at oral
argument, that the holding of Gary would apply only prospectively. We
disagree. See Passarello v. Grumbine, 87 A.3d 285, 307 (Pa. 2014)
(“The general rule in Pennsylvania is that appellate courts apply the law in
effect at the time of appellate review.”) Furthermore, despite his
proclamation, Settles has not made a post-argument submission to this
Court to expound on this theory or provide us with authority in support of
his position.
Second, the notes of testimony from the suppression hearing reveal that
after observing marijuana in plain view, Officer Holland secured the vehicle
and sought a warrant before continuing his search. N.T., 7/31/12, at 10-
11. He was not required to do so; as we explained, pursuant to Gary,
Officer Holland could have performed the search without a warrant.
5
It is axiomatic that this Court may raise issues concerning the legality of a
sentence sua sponte. See Commonwealth v. Mitchell, 986 A.2d 1241,
1244 n.3 (Pa. Super. 2009).
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at 1. A flat sentence such as this is illegal because it violates section 9756
of the sentencing code, which requires a trial court to specify both a
maximum and minimum term when entering a sentence of total
confinement. Commonwealth v. Mitchell, 986 A.2d 1241, 1243 (Pa.
Super. 2009); see also 42 Pa.C.S.A. § 9756(b). Accordingly, we must
vacate Settles’ sentence and remand to the trial court for resentencing.6
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2015
6
We note that since the imposition of Settle’s sentence, this Court has
found the statutory sentencing provision upon which the trial court relied, 18
Pa.C.S.A. 7508, unconstitutional. Commonwealth v. Cardwell, __ A.3d
__, 2014 WL 6656644 (Pa. Super. Nov. 25, 2014).
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