Appeal from the Judgment of Sentence August 4, 2011 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0004468-2010
The opinion of the court was delivered by: Gantman, J.:
BEFORE: STEVENS, P.J., GANTMAN, J., and OLSON, J.
Appellant, Lawrence Quintua, appeals from the judgment of sentence entered in the Bucks County Court of Common Pleas, following his jury trial convictions for burglary, robbery, criminal trespass, recklessly endangering another person ("REAP"), simple assault, and theft by taking.*fn1 We affirm.
The relevant facts and procedural history of this case are as follows. Purporting to be a painter, Appellant forced his way into the home of Frank Motz and robbed Mr. Motz of his wallet and money. The Commonwealth charged Appellant with various offenses, and a jury convicted Appellant of burglary, robbery, criminal trespass, REAP, and theft by taking. A sentencing hearing took place on August 4, 2011. With respect to burglary and criminal trespass, the court sentenced Appellant to ten (10) to twenty (20) years' imprisonment for burglary, with a consecutive term of two and a half (2½) to five (5) years' imprisonment for criminal trespass.*fn2 Appellant timely filed post-sentence motions, which the court denied on October 25, 2011. On November 23, 2011, Appellant timely filed a notice of appeal. The court ordered Appellant to file a concise statement of errors complained on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied.
Appellant raises one issue for our review:
DID THE TRIAL COURT ERR IN SENTENCING APPELLANT TO A TERM OF INCARCERATION ON THE COUNT OF CRIMINAL TRESPASS THAT WAS CONSECUTIVE TO THE COUNT OF BURGLARY, AS CRIMINAL TRESPASS IS A LESSER INCLUDED OFFENSE OF BURGLARY?
(Appellant's Brief at 5).
Appellant argues criminal trespass is a lesser included offense of burglary, and should have merged with burglary for sentencing purposes. In support of his position, Appellant relies on our Supreme Court's plurality decision in Commonwealth v. Jones, 590 Pa. 356, 912 A.2d 815 (2006). Jones stated burglary and criminal trespass can merge at sentencing when a defendant is convicted under a single set of facts that can satisfy both offenses. Appellant argues the facts of his case are analogous to those in Jones and concludes the court improperly sentenced him to periods of incarceration for both criminal trespass and burglary. The Commonwealth and trial court agree that Jones controls, and ask that this case be remanded for resentencing. We, however, disagree.
A claim that crimes should have merged for sentencing purposes raises a challenge to the legality of the sentence. Commonwealth v. Allen, 24 A.3d 1058, 1062 (Pa.Super. 2011). Therefore, our standard of review is de novo and our scope of review is plenary. Id.
The Crimes Code defines burglary as follows:
(a) Offense defined.--A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to ...