Appeal from the Judgment of Sentence December 17, 2012 In the Court of Common Pleas of Cambria County Criminal Division at No(s): CP-11-CR-0001122-2011
BEFORE: BOWES, ALLEN, and LAZARUS, JJ.
The Commonwealth of Pennsylvania appeals from the December 17, 2012 judgment of sentence, and it challenges the trial court's refusal to impose the drug-free school zone mandatory sentence upon Carl Wilhelm following his conviction of possession with intent to deliver ("PWID") and possession. Carl Wilhelm ("Appellee") cross appeals nunc pro tunc and asserts that the trial court erred in failing to merge his sentence for possession with the sentence imposed for PWID. After careful review, we affirm the trial court's refusal to apply the mandatory minimum sentence; we strike the sentence imposed on the possession offense, vacate judgment of sentence, and remand for resentencing.
The facts giving rise to the within appeal are as follows. In February 2010, the Cambria County Drug Task Force, through a confidential informant, conducted a controlled buy of two oxycodone pills from Appellee. One year later, Appellee was charged in a criminal complaint with felony drug delivery and misdemeanor drug possession based on that single transaction. A jury convicted Appellee of both offenses.
Prior to sentencing, the Commonwealth notified Appellee that it intended to seek the school-zone mandatory two-year sentence of imprisonment pursuant to 18 Pa.C.S. § 6317. The trial court held an evidentiary hearing to determine whether the mandatory sentence was applicable. The evidence revealed that the drug delivery took place ninety-two feet from the Wilmor United Methodist Church, which the Commonwealth contended was a school within the meaning of the statute. Therein, religious education classes for children aged three to eight were conducted for forty-five minutes each Sunday in a basement classroom.
The trial court held that the Commonwealth failed to meet its burden of proof on the applicability of the school zone mandatory and declined to impose it. The court sentenced Appellee as to the PWID offense to an aggregate sentence of fifteen to thirty months incarceration and as to the possession conviction twelve months probation to run concurrently. A motion for reconsideration filed by the Commonwealth was denied, and the Commonwealth appealed.
New counsel entered his appearance on Appellee's behalf and filed a petition seeking reinstatement of his client's right to file a cross appeal nunc pro tunc. The petition was granted, and Appellee filed the cross appeal, which was consolidated with the Commonwealth's appeal. Pursuant to Pa.R.A.P. 1925(b), both the Commonwealth and Appellee filed concise statements of errors complained of on appeal, and the court penned two Rule 1925(a) opinions.
The Commonwealth's sole issue on appeal is "Whether the sentencing court erred by not sentencing the Defendant to the statutorily-mandated two-year term of incarceration pursuant to 18 Pa.C.S.A. § 6317." Commonwealth's brief at 4. Appellee's issue in his cross appeal is "Whether the sentencing court should have merged the lesser-included offense of simple possession with possession with intent to deliver." Appellee's brief at 2.
The applicability of a mandatory sentencing provision implicates the legality of a sentence. Commonwealth v. Foster, 960 A.2d 160 (Pa.Super. 2008), affirmed by an equally divided court, 17 A.3d 332 (Pa. 2011). In Commonwealth v. Manahan, 45 A.3d 413 (Pa.Super. 2012), this Court relied upon our Supreme Court's decision in Commonwealth v. Myers, 722 A.2d 649 (Pa. 1998), in analyzing the appropriate standard of review of a sentence involving a mandatory minimum. The Myers Court "held that when reviewing factual findings and credibility determinations by a sentencing court, we accept the findings of fact unless they are clearly erroneous." Id. at 652. The Court concluded therein that the inquiry as to whether there was sufficient evidence to establish that a defendant delivered the drugs within 1, 000 feet of a school zone was fact-based. Since the issue also involves statutory interpretation, a question of law, our scope of review is plenary, and our standard of review is de novo. Commonwealth v. Dixon, 53 A.3d 839 (Pa.Super. 2012).
The statute at issue provides in pertinent part:
(a) General rule.--A person 18 years of age or older who is convicted in any court of this Commonwealth of a violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, shall, if the delivery or possession with intent to deliver of the controlled substance occurred within 1, 000 feet of the real property on which is located a public, private or parochial school.
(b) Proof at sentencing. – The provisions of this section shall not be an element of the crime. Notice of the applicability of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider evidence presented at trial, shall afford the Commonwealth and the defendant an ...