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[U] Commonwealth v. Kinney

Superior Court of Pennsylvania

February 28, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CHARLES B. KINNEY, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence entered on February 12, 2013 in the Court of Common Pleas of Lancaster County, Criminal Division, No. CP-36-CR-0002030-2012

BEFORE: DONOHUE, SHOGAN and MUSMANNO, JJ.

MEMORANDUM

MUSMANNO, J.

Charles B. Kinney ("Kinney") appeals from the judgment of sentence imposed after he was convicted of possession with intent to deliver a controlled substance ("PWID"), possession of drug paraphernalia, and persons not to possess firearms.[1] We affirm.

On January 27, 2011, police officers executed a search warrant on Kinney's residence and found approximately 60 grams of crack cocaine, a loaded handgun, and various types of drug paraphernalia. After seizing these items, the police placed Kinney under arrest and charged him with the above-mentioned crimes.

Kinney filed a Motion to Suppress the evidence, which the trial court denied after a hearing. The matter then proceeded to a non-jury trial, at the close of which the trial court found Kinney guilty of all charges. Prior to sentencing, the Commonwealth gave Kinney Notice of its intent to seek the imposition of mandatory minimum sentences applicable to Kinney's offenses. Additionally, the trial court ordered the preparation of a Presentence Investigation Report ("PSI").

At sentencing, the trial court sentenced Kinney on his PWID conviction to serve ten to twenty years in prison, [2] and ordered him to pay a fine of $30, 000. The trial court sentenced Kinney to serve five to ten years in prison for his conviction of persons not to possess firearms, and six to twelve months for his conviction of possession of drug paraphernalia. The court ordered these sentences to run concurrently with the sentence imposed for Kinney's PWID conviction. Kinney filed a Motion for Reconsideration of Sentence, which the trial court denied. Kinney then timely filed a Notice of Appeal.

Kinney presents the following issues for our review:
I. Did the trial court erroneously find [] Kinney guilty of the charge of persons not to possess a firearm where evidence presented by the Commonwealth was insufficient to prove [] Kinney guilty of the offense beyond a reasonable doubt where [] Kinney was not previously convicted of an offense equivalent to a felony drug conviction in Pennsylvania?
II. Did the trial [court] erroneously apply the five[-]year mandatory minimum sentence pursuant to 18 Pa.C.S.A. § 7508 where [] Kinney had not been previously convicted of another drug trafficking offense[, ] as required by statute?
III. Was an aggregate sentence of 10 to 20 years [in prison] … manifestly excessive and clearly unreasonable under the circumstances of this case, as it was not consistent with the protection of the public, the gravity of the offenses, and the rehabilitative needs of [] Kinney?

Brief for Appellant at 5.

Kinney first argues that his conviction of persons not to possess firearms cannot stand because the Commonwealth failed to present sufficient evidence to prove each element of the crime beyond a reasonable doubt. Id. at 11. Particularly, he contends that, although he has a lengthy criminal history, none of his prior offenses would make him ineligible to possess a firearm pursuant to section 6105 of Pennsylvania's Uniform Firearms Act. Id. at 12.

When reviewing a sufficiency of the evidence claim,

[o]ur standard of review is whether the evidence admitted at trial, and all reasonable inferences drawn from that evidence, when viewed in the light most favorable to the Commonwealth as verdict winner, were sufficient to enable the fact finder to conclude that the Commonwealth established all of the elements of the offense beyond a reasonable doubt.

Commonwealth v. Cruz, 71 A.3d 998, 1006 (Pa. Super. 2013) (citation and brackets omitted).

The crime of persons not to possess firearms is statutorily defined, in relevant part, as follows:

(a) Offense defined.
(1)A person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c) shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth.
(c) Other persons. --In addition to any person who has been convicted of any offense listed under subsection (b), the following persons shall be subject to the prohibition of subsection (a):
(2)A person who has been convicted of an offense under the act of April 14, 1972 (P.L.233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, or any equivalent Federal statute or equivalent statute of any other state, that may be punishable by a term of imprisonment exceeding two years.

18 Pa.C.S.A. § 6105(a)(1), (c)(2) (emphasis added).

In the instant case, in order to convict Kinney of persons not to possess firearms under section 6105, the Commonwealth had to prove, beyond a reasonable doubt, that (1) Kinney violated a state or federal statute equivalent to Pennsylvania's Controlled Substance, Drug, Device and Cosmetic Act (hereinafter referred to as "the first prong"); and (2) the possible punishment for such offense must exceed two years in prison (hereinafter, "the second prong"). See 18 Pa.C.S.A. § 6105(c)(2).

Regarding these two prongs, the trial court provided the following analysis in its Opinion:

First, [in 1989, Kinney] was convicted of a Class D felony in the state of New York for possessing an amount of cocaine in excess of 500 milligrams. [See N.Y. Penal Law § 220.06(5) (providing that "[a] person is guilty of criminal possession of a controlled substance in the fifth degree when he knowingly and unlawfully possesses … cocaine and said cocaine weighs five hundred milligrams or more.")]. New York Penal Law addresses the sentence of imprisonment for a felony drug offender. Section 70.70 states, in pertinent part[, that] [] for a class D felony, the term [of imprisonment] shall be at least one year and shall not exceed two and one-half years[.]
N.Y. Penal Law § 70.70(2)(a)(iii). New York Penal Law clearly qualifies as an equivalent statute to The Controlled Substance, Drug, Device and Cosmetic Act based on the fact that both criminalize possession of cocaine and other controlled substances. This satisfies the first prong of the test.
Second, New York law makes [Kinney's] conduct punishable by up to two and one-half years in prison. [See id.] Even if [Kinney's] actual sentence was less than two years, his conviction for a class D felony in New York could have resulted in imprisonment exceeding two years. Because [Kinney's] conduct was punishable by a term of imprisonment exceeding two years, the second prong of the test is satisfied. Having met both elements of this test, [Kinney] qualifies as a person not to possess a firearm under Section 6105 of the Uniform Firearms Act.

Trial Court Opinion, 6/17/13, at 2-3 (unnumbered). The trial court's sound analysis is supported by the record and the law.

Additionally, our review of Kinney's PSI reveals that, in 1992, he was convicted in the State of New York of Criminal Possession of a Controlled Substance – Intent to Sell (hereinafter "Possession with Intent to Sell"), in violation of N.Y. Penal Law § 220.39. Possession with Intent to Sell is classified as a class B felony. Id. In New York, a class B felony is punishable by up to nine years in prison. See N.Y. Penal Law § 70.70(2)(a)(i). Following Kinney's conviction of Possession with Intent to Sell, the New York State trial court sentenced him to serve three to six years in a New York State Correctional Facility. Accordingly, this prior conviction also establishes that Kinney's prior record met both of the prongs in 18 Pa.C.S.A. § 6105(c)(2).

Based upon the foregoing, we conclude that the Commonwealth presented ample evidence to convict Kinney of persons not to possess firearms under section 6105, and Kinney's sufficiency challenge thus lacks merit.

Next, Kinney asserts that the trial court erred by applying the five-year mandatory minimum sentence, provided for in 18 Pa.C.S.A. § 7508(a)(3)(ii), to his conviction of PWID, since Kinney had purportedly not been previously convicted of another drug trafficking offense, which is required for this sentencing provision to apply. See Brief for Appellant at 13.[3]

In reviewing Kinney's claim, we are mindful of the following:
As a general rule, a challenge to the application of a mandatory minimum sentence is a non-waivable challenge to the legality of sentence. The scope and standard of review applied to determine the legality of a sentence are well established. If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated. In evaluating a trial court's application of a statute, our standard of review is plenary and is limited to determining whether the trial court committed an error of law.

Commonwealth v. Hopkins, 67 A.3d 817, 821 (Pa. Super. 2013) (citations, quotation marks and paragraph breaks omitted).

The statute at issue here, section 7508, provides, in relevant part, as follows:

(3) A person who is convicted of violating section 13(a)(14), (30) or (37) of The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance is coca leaves or is any salt, compound, derivative or preparation of coca leaves … shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection:
(ii) when the aggregate weight of the compound or mixture containing the substance involved is at least ten grams and less than 100 grams[:] three years in prison and a fine of $15, 000 …; however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense: five years in prison and $30, 000 ….

18 Pa.C.S.A. § 7508(a)(3)(ii) (emphasis added).

In the instant case, it is undisputed that, at the time of his arrest in January 2011, Kinney possessed, with the intent to distribute, approximately 60 grams of cocaine. Therefore, he satisfied the statutory "weight requirement" set forth in 18 Pa.C.S.A. § 7508(a)(3)(ii). However, the five-year mandatory minimum sentence provided for in this subsection may only be applied if Kinney had a conviction of another "drug trafficking offense" at the time of sentencing. Id. In this regard, Kinney argues that

[t]he [sentencing c]ourt imposed the five[-]year mandatory in this case based on [Kinney's] 1989 New York conviction of criminal possession of a controlled substance. The conviction was not for possession of cocaine with the intent to deliver. Therefore, [] Kinney had not previously been convicted of another drug trafficking offense as required by 18 Pa.C.S.A. § 7508(a)(3)(ii).

Brief for Appellant at 13.

Even assuming, arguendo, that this argument is accurate, Kinney ignores his prior conviction in New York of Possession with Intent to Sell, in violation of N.Y. Penal Law § 220.39 (providing that "[a] person is guilty of criminal sale of a controlled substance in the third degree when he knowingly and unlawfully sells … a narcotic drug[.]"). This New York offense qualifies as a "drug trafficking offense" for purposes of 18 Pa.C.S.A. § 7508(a)(3)(ii).

Based upon the foregoing, because Kinney has met all of the requirements for the application of section 7508(a)(3)(ii)'s five-year mandatory minimum sentence, his challenge to the legality of his sentence lacks merit.

As an addendum, we observe that the sentencing court was statutorily required to impose the two mandatory minimum sentencing provisions involved in this case, 18 Pa.C.S.A. § 7508(a) and 42 Pa.C.S.A. § 9712.1(a), when sentencing Kinney. See Commonwealth v. Zortman, 985 A.2d 238, 243 (Pa. Super. 2009) (holding that "[w]hen the Commonwealth has established the necessary factual predicate for application of a mandatory minimum sentence, the sentencing court cannot refuse to impose the mandatory minimum."). Moreover, the sentencing court possessed the authority to "aggregate" these two separate five-year mandatory minimum sentences when imposing a sentence of ten to twenty years in prison on Kinney's PWID conviction.[4]

Finally, Kinney argues that the trial court abused its discretion by imposing a sentence that was inappropriate under the Sentencing Code. Brief for Appellant at 9-10.

There is no absolute right to appeal the discretionary aspects of a sentence. Commonwealth v. Hill, 66 A.3d 359, 363 (Pa. Super. 2013). Rather, where, as here, the appellant has preserved the discretionary sentencing claim for appellate review by raising it in a timely post-sentence Motion,

[t]wo requirements must be met before a challenge to the discretionary aspects of a sentence will be heard on the merits. First, the appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of [the] sentence. Pa.R.A.P. 2119(f). Second, [the appellant] must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. 42 Pa.C.S.A. § 9781(b). The determination of whether a particular issue raises a substantial question is to be evaluated on a case-by-case basis. In order to establish a substantial question, the appellant must show actions by the sentencing court inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process.

Commonwealth v. Sheller, 961 A.2d 187, 189 (Pa. Super. 2008) (citation to case law omitted).

Here, Kinney has satisfied the threshold requirements for review of the discretionary aspects of the sentence imposed, having included a Rule 2119(f) Statement in his brief. Accordingly, we must determine whether Kinney's Rule 2119(f) Statement presents a substantial question for our review.

Kinney asserts that the trial court abused its discretion by imposing a sentence that was manifestly excessive, unreasonable, and inconsistent with the protection of the public and the gravity of the offenses. Brief for Appellant at 9-10. Kinney further argues that the trial court improperly failed to consider his rehabilitative needs, background, character, and his strong familial ties. Id. Kinney's claims in this regard present a substantial question. See Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010) (stating that a claim that the sentencing court failed to consider the defendant's rehabilitative needs and the protection of society raises a substantial question); Commonwealth v. Ahmad, 961 A.2d 884, 887 (Pa. Super. 2008) (stating that a claim that the trial court failed to consider the defendant's individualized circumstances raises a substantial question).

Our standard of review is as follows:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will.

Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa. Super. 2012) (citation omitted).

We emphasize that the sentencing court in this case had the benefit of a PSI, which the court specifically stated that it had reviewed prior to imposing Kinney's sentence. See N.T., 2/12/13, at 12-13. The sentencing court pointed out that the PSI revealed, inter alia, that Kinney has an extensive criminal history and that most of his offenses pertained to selling or possessing drugs. Id. at 13. "[W]here the trial court is informed by a [PSI], it is presumed that the court is aware of all appropriate sentencing factors and considerations, and that where the court has been so informed, its discretion should not be disturbed." Downing, 990 A.2d at 794. Therefore, we presume that, prior to imposing sentence, the sentencing court considered and weighed the information relative to Kinney's rehabilitative needs, his background and prior criminal history, the need to protect the public, the gravity of Kinney's offenses, and his character and individual circumstances. See id. Moreover, Kinney's aggregate sentence of ten to twenty years in prison is not manifestly excessive because, as discussed above, this sentence was the result of the trial court's application of mandatory minimum sentencing provisions.

Because we discern no abuse of discretion by the trial court in imposing sentence upon Kinney, and the remainder of his issues raised on appeal are without merit, we therefore affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.


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