Appeal from the Judgment of Sentence November 17, 2011 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002236-2011
The opinion of the court was delivered by: Bowes, J.
BEFORE: MUSMANNO and BOWES, JJ., and MCEWEN, P.J.E.
Bryan Lynn Dixon appeals his November 17, 2011 judgment of sentence imposed following entry of a plea of guilty to possession with intent to deliver ("PWID") (marijuana) and possession of drug paraphernalia. The sentencing court applied the two-year mandatory minimum sentence for drug offenses committed within 1,000 feet of a school to Appellant's conduct, which occurred within that radius of a daycare facility. See 18 Pa.C.S. § 6317. The Banks Group Daycare "fell squarely" within the definition of "school" approved in Commonwealth v. Lewis, 885 A.2d 51 (Pa.Super. 2005), according to the sentencing court. After careful review, we vacate Appellant's sentence and remand for resentencing.
On August 4, 2009, at approximately 2:00 p.m., based upon a report of drug trafficking at 1908 West Fourth Street supplied by a confidential informant, City of Chester police officers arrested Appellant shortly after he exited his residence at that address. Officer Marlowe Freemen, who knew Appellant, asked him if he possessed anything that was improper. Appellant admitted that he had marijuana in his pocket. After a pat down search, Appellant was placed under arrest. After being apprised of his Miranda rights, Appellant consented to the search of his residence. He thereafter directed the officers to marijuana, bagging materials, and other drug paraphernalia stored there. Appellant's residence was located within 1,000 feet, but not within 250 feet, of the Banks Group Daycare.*fn1
After litigating an unsuccessful suppression motion, Appellant pled guilty to the aforementioned charges. Prior to sentencing on November 17, 2011, the Commonwealth advised Appellant that it intended to seek the two- year mandatory minimum sentence provided in 18 Pa.C.S. § 6317 for drug offenses occurring within 1,000 feet of a school. The Commonwealth maintained that a daycare facility was indistinguishable from a preschool, and, although not specifically enumerated in the statute, constituted a school within the meaning of the statute.
At sentencing, the following stipulations were placed on the record in lieu of testimony:
ADA: Your Honor, between myself and Mr. Deavor [Defense Counsel], we have arrived at several stipulations. First and foremost, we would stipulate that at the time of this offense there was an institution called the Banks Group Daycare located at 2002 West Fourth Street in the city of Chester at the time of this incident. Is that correct, Mr. Deavor?
Defense Counsel: Correct.
ADA: That that institution was open at the time and that the arrest of the Defendant took place within the 1,000 feet of that institution and he had the drugs on him at that time. Is that correct?
Defense Counsel: That's correct.
ADA: Additionally, Your Honor, counsel is stipulating that the Banks Group Daycare is a state-certified . . .
ADA: That it is a - - it's state-certified by the Department of Welfare, that there are children who attend this daycare ages 0 to 13 years, and by 0, I mean infants in months, up to and including 13 years of age, and that the day-to-day activities of this daycare are - - include, but are not limited to, age-appropriate learning letters, numbers, writing their name, and appropriate classroom behavior or facility behavior.
The Court: All right. ADA: Additionally . . .
Defense Counsel: Appropriate behavior, not appropriate classroom behavior.
Defense Counsel: Just leave it at that. I don't think there are classrooms at the facility.
ADA: Additionally, Your Honor, I, in exchange for that stipulation, am stipulating that there are not state-certified teachers at the facility and that it is not - if Ms. Robinson were asked, she does not characterize the facility as a preschool.
The Court: But it has to be certified by the state, right?
ADA: It is certified by the state, the Department of Welfare.
N.T., 11/17/11, at 8-10. In summary, Appellant was arrested for possession of marijuana within 1,000 feet of the Banks Group Daycare, a facility certified by the Department of Welfare and attended by children ages 0 to 13 years. There were no state-certified teachers at the facility, and that if its director, Ms. Robinson, were asked, she did not "characterize the facility as a preschool," but ...