Appeal from the Order of the Superior Court entered June 26, 2007 at No. 1823 MDA 2006, affirming the Judgment of Sentence of the Schuylkill County Court of Common Pleas entered May 2, 2006 at No. CP-54-CR-323-2005 928 A.2d 300 (Pa.Super. 2007).
The opinion of the court was delivered by: Mr. Justice McCAFFERY
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.
SUBMITTED: October 3, 2008
We accepted this appeal to address a single issue: whether the mandatory minimum sentencing provision of 35 P.S. § 780-113(k) applies to a conviction for conspiracy to manufacture a controlled substance? The Superior Court held that this mandatory minimum sentencing provision does apply to a conspiracy to manufacture conviction. We vacate and remand.
Appellant, Brian William Hoke, Jr., was convicted of numerous charges stemming from his involvement in a methamphetamine manufacturing operation. He was convicted under the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et seq., of possessing drug paraphernalia,*fn1 and of manufacturing a controlled substance (methamphetamine).*fn2 He was also convicted under the Pennsylvania Crimes Code, 18 Pa.C.S.A. § 101 et seq., of risking a catastrophe.*fn3 Finally, he was convicted under the Crimes Code of criminal conspiracy to commit each of the foregoing crimes.*fn4
Applying the mandatory minimum sentencing provision in 35 P.S. § 780-113(k), the trial judge imposed a sentence of two to four years' incarceration upon Appellant for his conviction for the manufacture of a controlled substance. The judge then imposed a consecutive two to four year sentence, again applying the mandatory minimum sentencing provision under 35 P.S. § 780-113(k), for the conspiracy to manufacture a controlled substance conviction.*fn5
Appellant contends that it was error for the trial judge to impose a mandatory minimum sentence for the conspiracy conviction. In affirming the judgment of sentence, the Superior Court stated:
Pursuant to 18 Pa.C.S.A. § 905, "[e]xcept as otherwise provided in this title, attempt, solicitation and conspiracy are crimes of the same grade and degree as the most serious offense which is attempted or solicited or is an object of the conspiracy." 18 Pa.C.S.A. § 905(a). Thus, as Appellant was convicted of the manufacture of a controlled substance, the conspiracy charge on which he was sentenced was subject to the same mandatory sentencing provision as the offense of manufacturing a controlled substance set forth under 35 P.S. § 780-113(k).
Commonwealth v. Hoke, 928 A.2d 300, 306 (Pa.Super. 2007). The foregoing is the extent of the Superior Court's analysis.
Our review of the Superior Court's decision presents a pure question of law. We therefore apply a de novo standard of review. Commonwealth v. Worthy, 957 A.2d 720, 724 (Pa. 2008).
The mandatory minimum sentencing statute at issue provides as follows:
Any person convicted of manufacture of amphetamine, its salts, optical isomers and salts of its optical isomers; methamphetamine, its salts, isomers and salts of isomers; or phenylacetone and phenyl-2-proponone shall be sentenced to at least two years of total confinement without probation, parole or work release, ...