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[U] Commonwealth v. Houser

Superior Court of Pennsylvania

March 12, 2014



Appeal from the Judgment of Sentence July 10, 2013 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0002135-2013




Daniel James Houser appeals from the judgment of sentence imposed on him in the Court of Common Pleas of Northampton County following his guilty plea to charges of operating a methamphetamine lab, risking catastrophe and reckless endangerment (REAP).[1] Houser was sentenced on each charge for an aggregate term of 45 to 120 months' incarceration. In this timely appeal, Houser raises two arguments, one claiming his sentence is illegal, [2] and the second, a hybrid discretionary/legality challenge. After a thorough review of the submissions by the parties, the certified record, and relevant law, we affirm.[3]

The underlying factual scenario is straightforward. On March 8, 2013, Bethlehem Police were preparing to serve a search warrant at 1965 Greenleaf Street, Bethlehem, Pennsylvania. However, before the warrant could be served, the house caught fire from an explosion caused by the methamphetamine lab Houser was operating there. During the course of the fire, two police officers suffered chemical burns to their hands. Another person inside the house at the time of the fire had to be rescued. The search warrant was executed after the fire was extinguished, at which time evidence of the methamphetamine lab was discovered. On July 2, 2013, Houser entered into an open guilty plea to the charges listed above, at which time he was sentenced.

Houser filed a timely motion for reconsideration of sentence that was denied. On July 30, 2013, Houser filed his Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On January 7, 2014, this panel remanded the matter to the trial court for a comprehensive 1925(a) Opinion . The trial court has filed its opinion and the matter is now ripe for disposition.

First, Houser claims his sentence is illegal because REAP should have merged into causing catastrophe.[4] Therefore, he should have received only one sentence for causing catastrophe, rather than separate sentences for each crime. We disagree.

To determine whether offenses are greater and lesser-included offenses, we compare the elements of the offenses. If the elements of the lesser offense are all included within the elements of the greater offense and the greater offense has at least one additional element, which is different, then the sentences merge. Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20, 24 (1994). If both crimes require proof of at least one element that the other does not, then the sentences do not merge. Id., Commonwealth v. Johnson, 874 A.2d 66, 70-17 (Pa.Super. 2005), appeal denied, 587 Pa. 720, 899 A.2d 1122 (2006).

Commonwealth v. Nero, 58 A.3d 802, 806 (Pa.Super. 2012).

The trial court noted,

Here, the crime of Reckless Endangerment is defined as: "a person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury." 18 Pa.C.S.A. § 2705. Whereas the crime of Risking a Catastrophe is defined as: "a person is guilty of a felony of the third degree if he recklessly creates a risk of catastrophe in the employment of fire, explosives or other dangerous means listed in subsection (a) of this section." 18 Pa.C.S.A. § 3302(b).
In employing the test set forth above, Reckless Endangerment cannot be considered a lesser-included offense of Risking a Catastrophe because Reckless Endangerment necessitates the danger of death or serious bodily injury to a person, while Risking a Catastrophe does not require the endangerment of persons. Risking a Catastrophe can apply where there is widespread property damage without personal injury. Risking a Catastrophe also requires the additional element of a "dangerous means" such as fire or explosion, which is not required of Reckless Endangerment. Thus, both crimes require proof of at least one element which the other does not, and the sentences should not merge.

Trial Court Opinion, 1/15/2104, at 2.

We agree with the trial court's analysis and therefore conclude the sentences for Reckless Endangerment and Risking Catastrophe do not merge. Accordingly, Houser is not entitled to relief on this issue.

Houser's last argument is that the sentence imposed is illegal because it is in violation of 42 Pa.C.S. § 9756(b)(1) (minimum sentence to be no more than half of the maximum sentence), and that the trial court failed to state reasons for issuing the sentence imposed.

An argument that the trial court failed to place adequate reasons for the sentence on the record is a challenge to the discretionary aspects of the sentence. See Commonwealth v. Reynolds, 835 A.2d 720 (Pa.Super. 2003).

Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa.Super. 2000). An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or in a motion to modify the sentence imposed. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

Commonwealth v. Griffin, 65 A.3d 932, 935 (PA. Super. 2013).

Although Houser filed a motion for reconsideration of sentence, he did not raise the claim that the trial court failed to state adequate reasons for imposing the sentence.[5] Therefore, that claim is waived.

Houser's argument that his sentence violates 42 Pa.C.S. § 9756(b)(1) represents a claim of an illegal sentence and, therefore, has not been waived. See generally, Commonwealth v. Baney, 860 A.2d 127 (Pa.Super. 2004). Section 9756(b)(1) states,

(b) Minimum sentence.--
(1) The court shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence imposed.

42 Pa.C.S. § 9756(b)(1).

Houser's aggregate sentence is 45 to 120 months' incarceration. The minimum sentence, 45 months, does not exceed one-half of the maximum sentence imposed, 120 months. Therefore, the sentence does not violate the provisions of Section 9756(b)(1). Houser is not entitled to relief on this issue.

In light of the foregoing, Houser has not demonstrated he is subject to an illegal sentence. Accordingly, we affirm his judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

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