J-A12004-19


                            2019 PA Super 205

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                          OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

EDWARD GLENN TERREL RAMSEY,

                         Appellant                 No. 1046 WDA 2018


        Appeal from the Judgment of Sentence Entered June 8, 2018
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0009200-2017

BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.

OPINION BY BENDER, P.J.E.:                             FILED JULY 2, 2019

     Appellant, Edward Glenn Terrel Ramsey, appeals from the judgment of

sentence imposed after he pled guilty to one count of possession with intent

to deliver a controlled substance (PWID), and one count of delivery of a

controlled substance.    On appeal, Appellant challenges the legality and

discretionary aspects of his sentence.     After careful review, we vacate

Appellant’s judgment of sentence and remand for resentencing.

     Appellant’s convictions stemmed from his single sale, to an undercover

police officer, of a compound mixture containing detectable amounts of heroin

and fentanyl. On March 13, 2018, Appellant pled guilty to the above-stated

offenses. He was initially sentenced on June 5, 2018, to a term of 3 to 6

years’ incarceration. However, on June 8, 2018, the court sua sponte vacated

Appellant’s sentence and resentenced him to a term of 2 to 4 years’
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incarceration for his PWID offense and a concurrent 6 years’ probation for his

delivery conviction.1       The court also deemed Appellant eligible for the

Recidivism Risk Reduction Incentive Act, 61 Pa.C.S. §§ 4501-4512.

       Appellant filed a timely post-sentence motion, which was denied. He

then filed a timely notice of appeal, and he also timely complied with the trial

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.         The trial court filed its Rule 1925(a) opinion on

October 11, 2018. Herein, Appellant presents two questions for our review,

which we have reordered for ease of disposition:

       I. Did the trial court violate [Appellant’s] double jeopardy and due
       process rights under the United States and Pennsylvania
       Constitutions by separately sentencing him on two counts of
       [d]elivery of a [c]ontrolled substance where one single compound
       containing detectable amounts of both heroin and fentanyl was
       delivered; where a single criminal act of delivery occurred; and
       where the specific kind of controlled substance relates only to the
       applicable Offense Gravity Score [(OGS)] and statutory maximum
       penalty, and not the statutory elements of the offense?

       II. Where only the most serious juvenile adjudication of each prior
       disposition is counted in an individual’s Prior Record Score [(PRS)]
       pursuant to 204 Pa. Code § 303.6, did the trial court err by
       calculating [Appellant’s] [PRS] as repeat felony offender [(RFEL)]
       where [Appellant’s] criminal record was comprised of two juvenile
       adjudications for [b]urglary[,] but where one such adjudication
       was an adjudication without disposition?



____________________________________________


1The written sentencing order for this amended sentence is dated June 5,
2018, but the resentencing hearing occurred on June 8, 2018.




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Appellant’s Brief at 5.2

       In Appellant’s first issue, he argues that the trial court violated his

double jeopardy protections under the United States and Pennsylvania

Constitutions by separately sentencing him for two drug offenses that arose

from a single delivery of a compound mixture containing inseparable

controlled substances.3 Alternatively, he insists that his sentences for both

drug offenses under section 780-113(a)(30) are illegal because those

convictions must merge for sentencing purposes.4



____________________________________________


2 We note that the Commonwealth informed this Court via letter that it would
not be filing a formal brief in this case. However, in the letter, the
Commonwealth concedes the merit of Appellant’s first issue challenging the
legality of his sentence, remarking that, “at a minimum, the two offenses
should have merged for sentencing, and therefore, the case must be
remanded for re-sentencing.” See Commonwealth’s Letter, 2/26/19 (single
page). In regard to Appellant’s second claim, the Commonwealth simply
states that the trial court’s analysis, discussed infra, appropriately resolves it.
See id.
3Appellant recognizes that, “because of the nature of his guilty plea, he cannot
and does not challenge his convictions” for both counts under 35 P.S. § 780-
113(a)(30). Appellant’s Brief at 37 n.17 (emphasis in original). Instead, he
“only challenges the trial court’s imposition of separate sentences.” Id.

4 Appellant concedes that he did not raise his double jeopardy or merger
claims until his Rule 1925(b) statement. See Appellant’s Brief at 26 n.12.
However, it is well-settled that “[a] challenge to the legality of a particular
sentence may be reviewed by any court on direct appeal; it need not be
preserved in the lower courts to be reviewed and may even be raised by an
appellate court sua sponte.” Commonwealth v. Batts, 163 A.3d 410, 442
(Pa. 2017) (citation omitted); see also Commonwealth v. Foster, 960 A.2d
160, 164 (Pa. Super. 2008) (stating that an “argument premised upon double
jeopardy-merger principles is considered to relate to the legality of sentence”).


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      In support of his arguments, Appellant directs our attention to

Commonwealth v. Farrow, 168 A.3d 207 (Pa. Super. 2017). There, Farrow

was charged, convicted, and sentenced for three counts of driving under the

influence (DUI) - general impairment pursuant to 75 Pa.C.S. § 3802(a)(1).

Id. at 213. For two of those counts, the Commonwealth added a penalty

enhancement under 75 Pa.C.S. § 3804. Id. The Farrow panel recognized

that in Commonwealth v. Mobley, 14 A.3d 887 (Pa. Super. 2011), our Court

held “that the provisions found in [section] 3804 were not elements of DUI

offenses and ‘delineate[ only] the applicable penalties to which a defendant is

subject when convicted of DUI.’” Farrow, 168 A.2d at 216 (quoting Mobley,

14 A.3d at 894).     Accordingly, we held “that, pursuant to the guidance

supplied in Mobley, the trial court violated [Farrow’s] protection against

double jeopardy” by “impos[ing] three separate sentences at three counts that

each alleged, at bottom, a single criminal act in violation of the same criminal

statute.” Id.

      The same is true in the instant case.       Appellant received separate

sentences for two counts that each alleged, at bottom, a single criminal act in

violation of section 780-113(a)(30).     Each count pertained to a different

controlled substance. However, as Appellant observes, “there is nothing in

the plain language of [s]ection 780-113(a)(30) that states that the particular

drug delivered is an element of the offense — all that is required is that a

controlled substance is delivered.”    Appellant’s Brief at 34.    Rather, the

specification of the particular drug delivered “relates only to the OGS and the

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J-A12004-19



maximum possible penalties for violating the Drug Act.” Id. (citing 204 Pa.

Code § 303.15 (assigning an offense gravity score to each offense and

subcategorizing (a)(30) offenses by type (or schedule) of substance and

weight)); see also 35 P.S. §§ 780-113(f), (n), (o) (stating the grading and

maximum penalties for particular schedules of substances).

      Moreover, our decision in Commonwealth v. Swavely, 554 A.2d 946

(Pa. Super. 1989), on which the trial court solely relies, does not convince us

that Appellant’s separate sentences are constitutionally permissible.   There,

Swavely committed one drug delivery of two different types of prescription

pills contained in the same vial. Id. at 949. For this act, he was convicted

and separately sentenced for two counts of delivery under section 780-

113(a)(30). Id. In affirming Swavely’s sentences, we stressed that he had

delivered two separable substances and, therefore, “two separate offenses

occurred, and sentencing on both offenses did not violate the Double Jeopardy

Clause of the Fifth Amendment.”       Id.   Importantly, the Swavely panel

explicitly distinguished Swavely’s delivery of two different, and completely

separable, pills from “the delivery of a mixture or compound, in a single unit,

containing a detectable amount of more than one controlled substance.” Id.

at 951. Accordingly, Swavely does not control in the present case. Rather,

following the rationale of Farrow, we conclude that the trial court violated

Appellant’s protection against double jeopardy by imposing separate

sentences for convictions that stemmed from his single sale of a compound

substance containing inseparable controlled substances.

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      We also agree with Appellant — as does the Commonwealth — that his

two convictions must at least merge for sentencing purposes. Our General

Assembly has directed that,

      [n]o crimes shall merge for sentencing purposes unless the crimes
      arise from a single criminal act and all of the statutory elements
      of one offense are included in the statutory elements of the other
      offense. Where crimes merge for sentencing purposes, the court
      may sentence the defendant only on the higher graded offense.

42 Pa.C.S. § 9765. “The statute’s mandate is clear. It prohibits merger unless

two distinct facts are present: 1) the crimes arise from a single criminal act;

and 2) all of the statutory elements of one of the offenses are included in the

statutory elements of the other.”   Commonwealth v. Baldwin, 985 A.2d

830, 833 (Pa. 2009).

      Here, Appellant was convicted of two offenses that are both defined by

the same provision:

      (30) Except as authorized by this act, the manufacture, delivery,
      or possession with intent to manufacture or deliver, a controlled
      substance by a person not registered under this act, or a
      practitioner not registered or licensed by the appropriate State
      board, or knowingly creating, delivering or possessing with intent
      to deliver, a counterfeit controlled substance.

35 P.S. § 780-113(a)(30). Appellant convincingly contends that, “under a

very simple merger analysis, [his] delivery of the compound containing

detectable amounts of both heroin and fentanyl [arose] from a single criminal

act and all of the statutory elements of one offense are included in the

statutory elements of the other offense; indeed, the statutory elements are

identical.” Appellant’s Brief at 34-35. Moreover, our Court has previously


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J-A12004-19



recognized the crime of PWID as a lesser-included offense of delivery of a

controlled substance. See Commonwealth v. Eicher, 605 A.2d 337, 353

(Pa. Super. 1992) (stating that “[t]he crime of possession with the intent to

deliver … has been recognized to be a lesser included offense of the crime of

delivery of a controlled substance”) (citing Commonwealth v. Edwards, 449

A.2d 38, 39 (Pa. Super. 1982)). Thus, in addition to violating double jeopardy

protections, it is clear that Appellant’s separate sentences are illegal because

his convictions must merge for sentencing purposes. Accordingly, we vacate

Appellant’s sentences and remand for resentencing.

      Despite this disposition, we must address Appellant’s second issue

challenging the trial court’s calculation of his PRS, as it will afford clarity to

the trial court at resentencing. Initially, we observe that this claim constitutes

a challenge to the discretionary aspects of Appellant’s sentence.            See

Commonwealth v. Spenny, 128 A.3d 234, 241 (Pa. Super. 2015) (citation

omitted).

      [S]uch challenges are not subject to our review as a matter of
      right. “An appellant must satisfy a four-part test to invoke this
      Court’s jurisdiction when challenging the discretionary aspects of
      a sentence,” by (1) preserving the issue in the court below, (2)
      filing a timely notice of appeal, (3) including a statement pursuant
      to Pa.R.A.P. 2119(f) (“Rule 2119(f) statement”) in his brief on
      appeal, and (4) raising a substantial question for our review.
      Commonwealth v. Tejada, 107 A.3d 788, 797 (Pa. Super. 2015)
      (citation omitted).

Id.

      Here, Appellant preserved his PRS issue before the trial court, he filed a

timely notice of appeal, and he includes a Rule 2119(f) statement in his brief.

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Additionally, his issue constitutes a substantial question for our review. See

id. (citation omitted); see also Commonwealth v. Provenzano, 50 A.3d

148, 154 (Pa. Super. 2012) (citing Commonwealth v. Janda, 14 A.3d 147,

165 (Pa. Super. 2011)). Thus, we will address his sentencing claim herein,

applying the following standard of review:

      [T]he proper standard of review when considering whether to
      affirm the sentencing court’s determination is an abuse of
      discretion. [A]n abuse of discretion is more than a mere error of
      judgment; thus, a sentencing court will not 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. In more expansive terms, our Court recently
      offered: An abuse of discretion may not be found merely because
      an appellate court might have reached a different conclusion, but
      requires a result of manifest unreasonableness, or partiality,
      prejudice, bias, or ill-will, or such lack of support so as to be clearly
      erroneous.

Provenzano, 50 A.3d at 154 (quoting Commonwealth v. Walls, 926 A.2d

957, 961 (Pa. 2007) (cleaned up)).

      Appellant contends that the trial court erred by factoring both of his two

juvenile adjudications of delinquency for burglary in assigning him a PRS of

RFEL, despite that he only received a disposition on one of those adjudications.

According to Appellant, the fact that he received no disposition for one

burglary adjudication precluded the court from considering it in formulating

his PRS. Thus, Appellant insists that his correct PRS is three, based on the

single burglary adjudication for which he received a disposition.




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J-A12004-19



        Appellant’s argument hinges on interpreting several provisions of the

sentencing guidelines governing the calculation of a PRS. Initially, we note

that,

        although the Pennsylvania Commission on Sentencing, rather
        than the General Assembly itself, directly adopts the sentencing
        guidelines and thus they are not statutes per se, the guidelines
        nevertheless retain a legislative character, as the General
        Assembly may reject them in their entirety prior to their taking
        effect, subject, of course, to gubernatorial review.

Commonwealth v. Bonner, 135 A.3d 592, 597 (Pa. Super. 2016) (cleaned

up). Thus, we review an issue implicating an interpretation of the sentencing

guidelines in the same manner as we review a question of statutory

interpretation. See, e.g., id. (concluding that “we review the constitutionality

of a sentencing guideline in the same manner that we review the

constitutionality of a statute”).

        In all matters involving statutory interpretation, we apply the
        Statutory Construction Act, 1 Pa.C.S. §§ 1501 et seq., which
        directs us to ascertain and effectuate the intent of the General
        Assembly. 1 Pa.C.S. § 1921(a). To accomplish that goal, we
        interpret statutory language not in isolation, but with reference to
        the context in which it appears. See Consulting Eng'rs Council
        of Penna. v. State Architects Licensure Bd., 522 Pa. 204, 560
        A.2d 1375, 1377 (1989). A statute’s plain language generally
        provides the best indication of legislative intent. See, e.g.,
        McGrory v. Dep’t of Transp., 591 Pa. 56, 915 A.2d 1155, 1158
        (2007); Commonwealth v. Gilmour Mfg. Co., 573 Pa. 143, 822
        A.2d 676, 679 (2003); Penna. Fin. Responsibility Assigned
        Claims Plan v. English, 541 Pa. 424, 664 A.2d 84, 87 (1995)
        (“Where the words of a statute are clear and free from ambiguity
        the legislative intent is to be gleaned from those very words.”).
        Only where the words of a statute are ambiguous will we resort to
        other considerations to discern legislative intent. 1 Pa.C.S. §
        1921(c); see In re Canvass of Absentee Ballots of Nov. 4,
        2003 Gen. Election, 577 Pa. 231, 843 A.2d 1223, 1230 (2004)

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J-A12004-19


      (citing O’Rourke v. Commonwealth, 566 Pa. 161, 778 A.2d
      1194, 1201 (2001)).

Commonwealth v. Kingston, 143 A.3d 917, 922 (Pa. 2016).

      “In determining the guideline sentence for a criminal conviction, the trial

court must establish the defendant’s [PRS].” Commonwealth v. Bullock,

170 A.3d 1109, 1123 (Pa. Super. 2017), appeal denied, 184 A.3d 944 (Pa.

2018) (citing 204 Pa. Code § 303.2(a)(2)). “The [PRS] ‘is based on the type

and number of prior convictions (§ 303.5) and prior juvenile adjudications (§

303.6).’” Id. (quoting 204 Pa. Code § 303.4(a)). Regarding prior juvenile

adjudications, section 303.6 states:

      (a) Juvenile adjudication criteria. Prior juvenile adjudications are
      counted in the Prior Record Score when the following criteria are
      met:

         (1) The juvenile offense occurred on or after the offender’s
         14th birthday, and

         (2) There was an express finding by the juvenile court that
         the adjudication was for a felony or one of the Misdemeanor
         1 offenses listed in § 303.7(a)(4).

      (b) Only the most serious juvenile adjudication of each prior
      disposition is counted in the Prior Record Score. No other prior
      juvenile adjudication shall be counted in the Prior Record Score.

204 Pa. Code § 303.6.

      Here, Appellant concedes that his at-issue burglary offenses occurred

after his 14th birthday, “and that the Delinquency Adjudication-Disposition

Orders entered by the [Court] of Common Pleas of Allegheny County on July

24, 2007, expressly note that both adjudications of delinquency were for

felonies.” Appellant’s Brief at 16 n.5. He argues, however, that under section



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J-A12004-19



303.6(b), only one of his two burglary adjudications can be counted in his

PRS. Appellant’s argument centers on his conclusion that his consolidated

burglary adjudications constitute a single ‘disposition,’ such that only one of

those adjudications, i.e., the ‘most serious,’ can be counted toward his PRS

under section 303.6(b). Appellant further reasons that the only way in which

the court could have properly counted his second burglary adjudication was if

it resulted in a disposition imposed to run consecutively to his first burglary

disposition. Id. (citing 204 Pa. Code § 303.5(b)(1), (2) (stating that, where

there are multiple offenses in a judicial proceeding, only the most serious

offense, and any offense(s) on which consecutive terms of supervision or

confinement are imposed, may be counted in calculating the PRS)). Because

Appellant received no disposition for his second burglary adjudication, he

insists that it could not be counted in calculating his PRS under sections 303.6

and 303.5.

      In rejecting Appellant’s argument, the trial court concluded that

Appellant’s reliance on section 303.6(b) was “misplaced[,]” as that provision

“only addresses a scenario where a juvenile is adjudicated of multiple

offenses as part of the same case number (disposition), such that only

the ‘most serious’ adjudication of that disposition (case) is counted.” Trial

Court Opinion (TCO), 10/11/18, at 5 (emphasis added). The court reasoned

that, because Appellant’s burglary charges were not part of the same case

number, they must both count for his PRS. Further, the court concluded that,

although Appellant did not receive a disposition for his one burglary

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adjudication, it must still be factored into his PRS under section 303.8 and 42

Pa.C.S. § 2154. Those provisions read:

      (a) Prior convictions and adjudications of delinquency.

         (1) A prior conviction means “previously convicted” as
         defined in 42 Pa.C.S. § 2154(a)(2). A prior adjudication of
         delinquency means “previously adjudicated delinquent” as
         defined in 42 Pa.C.S. § 2154(a)(2). In order for an offense
         to be considered in the Prior Record Score, both the
         commission of and conviction for the previous offense must
         occur before the commission of the current offense.

204 Pa. Code § 303.8. Section 2154 sets forth:

      “Previously convicted of or adjudicated delinquent.” Any
      finding of guilt or adjudication of delinquency, whether or not
      sentence has been imposed or disposition ordered prior to
      the commission of the current offense.

42 Pa.C.S. § 2154(b) (emphasis added). Based on this emphasized language,

the trial court determined “that a prior juvenile adjudication will be counted

towards an offender’s [PRS], regardless of whether a separate disposition was

ordered.” TCO at 5.

      It is apparent that the difference of opinion between the trial court and

Appellant stems from their contrasting interpretations of the phrase, “each

prior disposition,” that appears in section 303.6(b). The trial court essentially

concluded that the phrase means ‘each prior case number,’ while Appellant

construes it as meaning ‘each prior judicial proceeding.’ Assessing the at-

issue language of section 303.6 in the context of Chapter 303 as a whole, see

Kingston, supra, leads us to accept Appellant’s interpretation.




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         As set forth supra, section 303.2 defines the term “judicial proceeding”

to mean: “[A] proceeding in which all offenses for which the offender has been

convicted are pending before the court for sentencing at the same time. A

judicial proceeding may include multiple offenses and transactions.” 204

Pa. Code § 303.2(b) (emphasis added).              Additionally, the term ‘judicial

proceeding’ is used in section 303.5, which pertains to calculating a PRS based

on prior, adult convictions. It states, in pertinent part:

         (a) If there is a single offense in the prior judicial proceeding, that
         offense shall be counted in the calculation of the Prior Record
         Score.

         (b) If there are multiple offenses in the prior judicial proceeding:

            (1) The most serious offense of the judicial proceeding shall
            be counted in the calculation of the Prior Record Score.

            (2) Any offense for which a sentence of supervision or
            confinement is imposed consecutive to a sentence for
            another offense in the judicial proceeding shall be counted
            in the calculation of the Prior Record Score.

204 Pa. Code § 303.5(b).

         Pursuant to these provisions, had Appellant committed his burglary

offenses as an adult, only the first burglary conviction would count toward his

PRS. However, under the court’s interpretation of section 303.6(b), both of

his burglary adjudications must be counted for his PRS. We cannot conclude

that the Pennsylvania Commission on Sentencing intended that prior juvenile

adjudications result in a higher PRS than similar offenses committed as an

adult.      Instead, we presume that the commission meant for juvenile

adjudications to be treated similarly to adult convictions for PRS purposes.


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The fact that section 303.6(b) does not use the term ‘judicial proceeding’ as

used in section 303.5 makes sense, given that the definition of that term refers

to convictions and sentencing, which are inapplicable to juvenile offenders.

See, e.g., 42 Pa.C.S. § 6354(a) (stating that adjudications of delinquency are

not convictions); 42 Pa.C.S. § 6352 (discussing imposition of disposition for

juveniles who are adjudicated delinquent). Thus, we agree with Appellant that

the phrase, ‘every prior disposition,’ used in section 303.6(b) must be

interpreted similarly to ‘judicial proceeding’ in section 303.5.          Because

Appellant’s burglary adjudications were pending before the court for

disposition at the same time, they are one ‘prior disposition’ under section

303.6(b).5 Accordingly, at resentencing, the court must count only the most

serious of those two adjudications toward Appellant’s PRS.

       Judgment of sentence vacated.               Case remanded for resentencing.

Jurisdiction relinquished.




____________________________________________


5 We observe that the juvenile court expressly indicated, in its dispositional
order for Appellant’s second burglary offense, that it adjudicated him
delinquent without disposition because it had imposed disposition on his first
burglary charge. This supports our decision that only Appellant’s first burglary
adjudication should count in calculating his PRS. See Appellant’s Brief at
Appendix E (Delinquency Adjudication-Disposition Order).

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J-A12004-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/2/2019




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