Com. v. Pacheco, L.

J-S32041-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LUIS ENRIQUE PACHECO :
:
Appellant : No. 594 MDA 2022
Appeal from the Judgment of Sentence Entered March 18, 2022
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0001211-2021
BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY LAZARUS, J.: FILED: NOVEMBER 17, 2022
Luis Enrique Pacheco appeals from the judgment of sentence, entered
in the Court of Common Pleas of Berks County, after a jury convicted him of
one count of possession of a Schedule I controlled substance.1 After our
review, we affirm.
On March 17, 2022, the trial court, applying a sentencing enhancement,
sentenced Pacheco to 16 to 36 months’ incarceration in county prison. 2 The
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135 P.S. § 780-113(a)(16). The controlled substance is identified as MDMB-
4en-PINACA, a synthetic cannabinoid. See Information, 4/22/21.
2 Pacheco had a prior record score of 5. Due to his prior drug convictions, he
was subject to sentencing enhancement, bringing his maximum sentence to
three years. See N.T. Sentencing Hearing, 3/17/22, at 3; Sentence Guideline
Form, 4/4/22; see also 35 P.S. § 780-113(b) (“[I]f the violation is committed
after a prior conviction of such person for a violation of this act under this
section has become final, such person shall be sentenced to imprisonment not
exceeding three years or to pay a fine not exceeding twenty-five thousand
dollars ($25,000), or both.”) (emphasis added).
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next day, the court amended the sentencing order, committing Pacheco to a
state correctional facility. See Order, 3/18/22. Pacheco filed a timely post-
sentence motion on March 28, 2022, which the trial court denied on March 29,
2022. Pacheco filed this timely appeal.3 Both Pacheco and the trial court
complied with Pa.R.A.P. 1925.
On appeal, Pacheco raises one issue: Whether the trial court sentenced
Pacheco to an illegal sentence under 42 Pa.C.S. § 9762(i) when the court
sentenced him to 16 to 36 months’ incarceration in a state correctional
institution on the charge of possession of a controlled substance[,] when the
grading of such a charge is an ungraded misdemeanor? Appellant’s Brief, at
4.
A claim challenging the legality of a sentence is a question of law;
therefore, our standard of review is de novo and our scope of review is
plenary. See Commonwealth v. Kline, 166 A.3d 337, 340-41 (Pa. Super.
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3 Counsel for Pacheco filed a notice of appeal on April 14, 2022, from the
“Judgment of Sentence entered on this matter March 17, 2022, and the
subsequent denial of the Post-Sentence Motion entered on this matter on
March 29, 2022.” Notice of Appeal, 4/14/22. Counsel erroneously stated the
appeal was from the March 17, 2022 judgment of sentence and the March 29,
2022 order denying post-sentence motions, rather than from the March 18,
2022 amended judgment of sentence. Where the sentencing court amends
the judgment of sentence during the period it maintains jurisdiction pursuant
to 42 Pa.C.S. § 5505, the direct appeal lies from the amended judgment of
sentence. See Commonwealth v. Garzone, 993 A.2d 1245, 1254 n.6 (Pa.
Super. 2010); see also Commonwealth v. Shamberger, 788 A.2d 408,
410 n.2 (Pa. Super. 2001) (en banc) (“In a criminal action, appeal properly
lies from the judgment of sentence made final by the denial of post-sentence
motions.”) (citation omitted).
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2017). If no statutory authorization exists for a particular sentence, that
sentence is illegal and must be vacated. Id.Pacheco argues that the court’s order requiring him to serve his
sentence in a state institution is illegal because his conviction was for a single
count of possession, an ungraded misdemeanor. He contends the court is
prohibited, under 42 Pa.C.S. § 9762(i), from committing him to a state prison
because neither “the aggregate sentence consists of a conviction for an
offense graded as a misdemeanor of the second degree or higher,” nor has
“the Secretary of Corrections or the secretary’s designee [] consented to the
commitment.” Id.
Section 9762(b) provides, in relevant part:
(b) Sentences or terms of incarceration imposed after a
certain date.--All persons sentenced three or more years after
the effective date of this subsection [] to total or partial
confinement shall be committed as follows:
(1) Maximum terms of five or more years shall be committed
to the Department of Corrections for confinement.
(2) Maximum terms of two years or more but less than five
years shall be committed to the Department of Corrections
for confinement, except upon a finding of all of the
following:
(i) The chief administrator of the county prison, or the
administrator's designee, has certified that the county
prison is available for the commitment of persons
sentenced to maximum terms of two or more years but
less than five years.
(ii) The attorney for the Commonwealth has consented
to the confinement of the person in the county prison.
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(iii) The sentencing court has approved the confinement
of the person in the county prison within the jurisdiction
of the court.
(3) Maximum terms of less than two years shall be
committed to a county prison within the jurisdiction of the
court.
42 Pa.C.S. § 9762(b) (emphasis added; footnote omitted). Thus, a sentence
with a maximum term between two and five years must be served in state
prison, unless each of the conditions in subsection (b)(2)(i)-(iii) is met. At
the sentencing hearing, the assistant district attorney recommended “16
months to 36 months in the Berks County Prison.” N.T. Sentencing, 3/17/22,
at 3. The court stated, however, that “the warden of our [county] prison has
not certified the availability for state sentences.” Id. at 7. Because Berks
County Prison was not certified “for the commitment of persons sentenced to
maximum terms of two or more years but less than five years[,]” subsection
(b)(2)(i) was not met. Accordingly, the court did not have the authority to
order Pacheco’s sentence be served in county prison.
Nevertheless, Pacheco argues that section 9762(i) prohibits the court
from sentencing an individual convicted of an ungraded misdemeanor to state
prison. Section 9762(i) states:
(i) Prohibition.-- Notwithstanding any other provision of law, no
person sentenced to total or partial confinement after the effective
date of this subsection shall be committed to the Department of
Corrections unless:
(1) the aggregate sentence consists of a conviction for an offense
graded as a misdemeanor of the second degree or higher; or
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(2) the Secretary of Corrections or the secretary’s designee has
consented to the commitment.
42 Pa.C.S. § 9762(i).
The Commonwealth argues that while section 9762(i)(1) does, in fact,
prohibit a state sentence for an ungraded misdemeanor, the three-year
maximum sentence permitted by 35 P.S. § 780-113(b), which applied to
Pacheco in light of his prior convictions, is “specifically applicable to these
sentencing proceedings pursuant to [section] 9762(j).” Commonwealth’s
Brief, at 4. The Commonwealth contends that Pacheco’s enhanced sentence
“was consistent with a first-degree misdemeanor,” and, therefore, the court’s
order requiring he serve that sentence in state prison was not illegal. Id. at
7. We agree.
Section 9762(j) states: “18 Pa.C.S. § 106(b)(8) and (9) (relating to
classes of offenses) applies to subsection (i).” 42 Pa.C.S. § 9762(j).
Specifically, subsections 106(b)(8) and (b)(9) of the Crimes Code classify a
crime as a “misdemeanor of the third degree if it is so designated in this title
or if a person convicted thereof may be sentenced to a term of imprisonment,
the maximum of which is not more than one year[,]” 18 Pa.C.S. § 106(b)(8),
or if it is declared a misdemeanor “without specification of degree[.]” Id. at
§ 106(b)(9). In other words, a person convicted of a third-degree
misdemeanor cannot be sentenced to a state institution. However, pursuant
to section 780-113(b) of the Controlled Substance, Drug, Device and Cosmetic
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Act, Pacheco’s sentence was properly enhanced to a first-degree
misdemeanor. Section 780-113(b) provides:
(b) Any person who violates any of the provisions of clauses (1)
through (11), (13) and (15) through (20) or (37) of subsection
(a) shall be guilty of a misdemeanor, and except for clauses (4),
(6), (7), (8), (9) and (19) shall, on conviction thereof, be
sentenced to imprisonment not exceeding one year or to pay a
fine not exceeding five thousand dollars ($5,000), or both, and for
clauses (4), (6), (7), (8), (9) and (19) shall, on conviction thereof,
be sentenced to imprisonment not exceeding three years or to pay
a fine not exceeding five thousand dollars ($5,000), or both; but,
if the violation is committed after a prior conviction of such person
for a violation of this act under this section has become final, such
person shall be sentenced to imprisonment not exceeding three
years or to pay a fine not exceeding twenty-five thousand dollars
($25,000), or both.
35 P.S. § 780-113(b) (emphasis added). Notably, in Commonwealth v
Cousins, 212 A.3d 34 (Pa. 2019), our Supreme Court held that convictions
under 35 P.S. §§ 780-113(a)(31) and (32) (possession of paraphernalia and
possession of small amount of marijuana) were properly used to enhance
maximum sentences under section 780-113(b)). The Court stated: “[U]pon
review of the Act, we conclude that 35 P.S. § 780-113(b) is not ambiguous.
Indeed, in referring to a “violation of this act under this section,” the
legislature clearly evidenced an intent that any violation under the entirety of
35 P.S. § 780-113, and not only those violations specified in § 780-113(b),
would support an enhanced sentence.” Id. at 39-40 (emphasis added).
Here, Pacheco had multiple prior convictions for simple possession of a
controlled substance, possession with intent to deliver a controlled substance,
and possession of a small amount of marijuana. Thus, Pacheco was subject
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to the enhanced sentencing provision of 35 P.S. § 780-113(b), elevating his
crime to a first-degree misdemeanor. See 18 Pa.C.S. § 108(6) (“A crime is a
misdemeanor of the first degree if it is so designated in this title or if a person
convicted thereof may be sentenced to a term of imprisonment, the maximum
of which is not more than five years.”) (emphasis added). Accordingly, the
court’s order requiring Pacheco serve his sentence in state prison was not
illegal. Kline, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2022
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