J-S26009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

GERALD D. CROWLEY,

                        Appellant                    No. 2937 EDA 2015


        Appeal from the Judgment of Sentence of January 24, 2014
          In the Court of Common Pleas of Northampton County
           Criminal Division at No(s): CP-48-CR-0002903-2013

BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                        FILED OCTOBER 19, 2016

     Appellant, Gerald D. Crowley, appeals from the judgment of sentence

entered on January 24, 2014, as made final by the denial of his

post-sentence motion on August 27, 2015.1 We are constrained to affirm in

part, vacate in part, and remand for resentencing.

     The factual background of this case is as follows. On June 10, 2013,

Appellant’s dog, Roxy, attacked Ryan Apgar’s dog, Rudy, on Apgar’s

property. On June 30, 2013, Roxy attacked John Deak and his dog, Buddy.

When confronted by police, Appellant gave a false name and admitted to

police that Roxy was unlicensed and was not vaccinated against rabies.

Based upon this information, police obtained a search warrant for Appellant’s

1
 Although the post-sentence motion was denied by operation of law on May
27, 2014, the order denying the motion was not docketed until August 27,
2015.



* Retired Senior Judge Assigned to the Superior Court
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residence.    During execution of that warrant, police located crack cocaine

and a firearm in Appellant’s bedroom.

        We previously outlined the ensuing procedural history of this case as

follows:

        On September 30, 2013, Appellant was charged via criminal
        information with possession of a firearm by a prohibited person,2
        possession with intent to deliver a controlled substance
        [(“PWID”)],3     possession   of    drug   paraphernalia,4   false
        identification to law enforcement,5 two counts of failure to keep
        a dog properly confined,6 failure to obtain a dog license,7
        harboring a dangerous dog,8 and failure to have a dog
        vaccinated against rabies.9 On November 22, 2013, Appellant
        pled guilty to possession of a firearm by a prohibited person and
        [PWID]. The remaining charges were withdrawn. On January
        24, 2014, Appellant was sentenced to an aggregate term of 5 to
        10 years’ imprisonment.[10]




2
    18 Pa.C.S.A. § 6105(a)(1).
3
    35 P.S. § 780-113(a)(30).
4
    35 P.S. § 780-113(a)(32).
5
    18 Pa.C.S.A. § 4914(a).
6
    3 P.S. § 459-305(a)(1).
7
    3 P.S. § 459-201(a).
8
    3 P.S. § 459-502-A(a)(1)(i).
9
    3 P.S. § 455.8(a).
10
   The trial court sentenced Appellant to five to ten years’ incarceration for
possession of a firearm by a prohibited person and a concurrent term of two
to ten years’ incarceration for PWID.




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      On January 29, 2014, Appellant filed a timely post-sentence
      motion. The trial court, however, took no action on Appellant’s
      post-sentence motion and, despite the passage of 120 days and
      the concomitant denial of Appellant’s motion by operation of law,
      no order reflecting these developments was entered on the
      docket. See Pa.R.Crim.P. 720(A)(2)(B). On February 5, 2015,
      Appellant filed a pro se petition pursuant to the Post-Conviction
      Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. On March 6,
      2015, counsel was appointed. On August 3, 2015, counsel filed
      a Turner/Finley[11] no-merit letter. That same day, the PCRA
      court issued notice of its intent to dismiss the PCRA petition
      without an evidentiary hearing. See Pa.R.Crim.P. 907.

      On August 14, 2015, counsel filed a petition seeking leave to
      withdraw as counsel. On August 17, 2015, Appellant filed a pro
      se response to the PCRA court’s Rule 907 notice. On August 27,
      2015, the trial court ordered the Clerk of Courts of Northampton
      County to enter an order denying Appellant’s post-sentence
      motion by operation of law. See Pa.R.Crim.P. 720(B)(3). In
      that same order, Appellant’s PCRA petition was dismissed for
      lack of jurisdiction. Also on August 27, 2015, the Clerk of Courts
      of Northampton County entered an order denying Appellant’s
      post-sentence motion via operation of law. This timely appeal
      followed.

Commonwealth v. Crowley, 2016 WL 2625285, *1 (Pa. Super. May 6,

2016) (unpublished memorandum) (certain footnote omitted).

      On appeal, Appellant’s court-appointed counsel originally filed a

petition to withdraw as counsel along with a Turner/Finley no-merit letter.

We denied the petition and found that this was a direct appeal and not an

appeal from the denial of PCRA relief. Id. at *2. Moreover, we concluded

that this direct appeal was not entirely frivolous since Appellant appeared to

have a meritorious discretionary aspects of sentencing claim based upon the

11
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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trial court’s erroneous application of the sentencing guidelines on his PWID

conviction. Id. at *3. Therefore, we remanded this case to the trial court

and directed counsel to file a concise statement of errors complained of on

appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).

Eventually, counsel complied with our order, the trial court filed a

supplement Rule 1925(a) opinion, and we received merits briefs from

Appellant’s counsel and the Commonwealth.           This case is now ripe for

disposition on the merits.

        Appellant presents four issues for our review:

        1. [Whether the trial court erred by concluding that Appellant
           was not eligible for the Recidivism Risk Reduction Initiative
           (“RRRI”)?

        2. Whether the trial court erred in calculating Appellant’s
           advisory sentencing guidelines range with respect to his PWID
           conviction?

        3. Whether the trial court erred in calculating Appellant’s
           advisory sentencing guidelines range with respect to his
           possession of a firearm by a prohibited person conviction?]

        4. Whether [Appellant] was sentenced to an illegal mandatory
           sentence related to possession of a firearm pursuant to [] 42
           Pa.C.S.A. § 9712.1 . . . ?

Appellant’s Brief at 3.12

        In his first issue, Appellant argues that the trial court erred in not

imposing an RRRI sentence. “A challenge to a court’s failure to impose an

RRRI sentence implicates the legality of the sentence.” Commonwealth v.

12
     We have re-numbered the issues for ease of disposition.



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Finnecy, 135 A.3d 1028, 1033 (Pa. Super. 2016) (citation omitted).

Therefore, our standard of review is de novo and our scope of review is

plenary. See Commonwealth v. Aikens, 139 A.3d 244, 245 (Pa. Super.

2016) (internal alteration, ellipsis, quotation marks, and citation omitted).

      A defendant is ineligible for RRRI if he is found guilty of an offense

under Chapter 61 of Title 18 of the Pennsylvania Consolidated Statutes. 61

Pa.C.S.A. § 4503(2). In this case, Appellant was found guilty of possession

of a firearm by a prohibited person, which is an offense included within

Chapter    61    of    Title   18   of   the    Pennsylvania   Consolidated    Statutes.

Accordingly, the trial court properly concluded that Appellant was ineligible

for an RRRI sentence.13

      In his second issue, Appellant argues that the trial court erred in

calculating his advisory sentencing guidelines range for his PWID conviction.

“[A] challenge to the calculation of the Sentencing Guidelines raises a

question    of   the     discretionary     aspects    of   a   defendant’s    sentence.”

Commonwealth v. Keiper, 887 A.2d 317, 319 (Pa. Super. 2005) (internal

quotation marks and citation omitted).14             An appellant does not have an


13
   Appellant’s citation to Commonwealth v. Buterbaugh, 91 A.3d 1247
(Pa. Super. 2014) (en banc), appeal denied, 104 A.3d 1 (Pa. 2014), is
inapposite.    Buterbaugh did not discuss RRRI eligibility.      Whether
Appellant’s firearm was loaded or unloaded is irrelevant to whether he is
RRRI eligible.
14
  Appellant frames his second issue as a challenge to the legality of his
sentence; however, it is properly characterized as a challenge to the
(Footnote Continued Next Page)


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absolute right of review for claims involving the discretionary aspects of

sentencing.     Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.

2010).      As this Court has explained, in order to reach the merits of a

discretionary aspects claim,

      [w]e conduct a four-part analysis to determine: (1) whether
      [the] 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 [the] 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. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation

omitted).

      In this case, Appellant filed a timely notice of appeal.         Appellant

preserved his second issue in his post-sentence motion. Although Appellant

included a Rule 2119(f) statement in his brief, that statement does not

address Appellant’s second issue.           “The Commonwealth, however, has not

objected to the adequacy of Appellant’s 2119(f) statement. Therefore, we

decline to find waiver based on these technical defects.” Commonwealth

v. Dodge, 77 A.3d 1263, 1271 (Pa. Super. 2013), appeal denied, 91 A.3d

161 (Pa. 2014) (citation omitted). Accordingly, we must determine whether

Appellant’s second issue presents a substantial question.

                       _______________________
(Footnote Continued)
discretionary aspects of his sentence. See Commonwealth v. Lamonda,
52 A.3d 365, 372 (Pa. Super. 2012), appeal denied, 75 A.3d 1281 (Pa.
2013); Keiper, 887 A.2d at 319.



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      “In order to establish a substantial question, the appellant must show

actions by the trial court inconsistent with the Sentencing Code or contrary

to   the    fundamental        norms     underlying   the       sentencing   process.”

Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super. 2014)

(citation omitted). “The determination of whether a particular case raises a

substantial    question   is   to   be   evaluated    on    a   case-by-case   basis.”

Commonwealth v. Seagraves, 103 A.3d 839, 841 (Pa. Super. 2014),

appeal denied, 116 A.3d 604 (Pa. 2015) (citation omitted). A claim that the

trial court used the wrong offense gravity score raises a substantial

question.     Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super.

2012), appeal denied, 75 A.3d 1281 (Pa. 2013). As Appellant’s second issue

raises such a claim, this appeal presents a substantial question and we will

proceed to consider the merits of Appellant’s argument.

      Appellant argues that the trial court erred by using an offense gravity

score of seven for his PWID conviction. As both the Commonwealth and the

trial court now concede,15 Appellant is correct. Specifically, Appellant pled

guilty to possessing with intent to deliver less than two grams of cocaine.

The offense gravity score for such a conviction is five, not seven. See 204

Pa.Code § 303.15.         As Appellant’s prior record score was five, this

miscalculation changed Appellant’s advisory sentencing guidelines range


15
  We commend both the trial court and the Commonwealth for their
commitment to ensuring justice in this case.



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from 12 to 18 months to 24 to 30 months. Accordingly, the trial court erred

in calculating Appellant’s advisory guidelines sentencing range.

      The Commonwealth and the trial court urge us to find this error

harmless because (a) the trial court avers it would have imposed the same

sentence even if it utilized the correct advisory sentencing guidelines range

and (b) Appellant’s PWID sentence is shorter than, and runs concurrently

with, his possession of a firearm by a prohibited person sentence.           The

Sentencing Code, however, prohibits us from finding this error harmless.

Specifically, the Sentencing Code provides that this “Court shall vacate the

sentence and remand the case to the sentencing court with instructions if it

finds[ ] the sentencing court purported to sentence within the sentencing

guidelines   but   applied   the   guidelines   erroneously[.]”    42   Pa.C.S.A.

§ 9781(c)(1) (emphasis added).        Our General Assembly’s use of the word

“shall” usually indicates a mandatory obligation.       See Shearer v. Hafer,

135 A.3d 637, 643 (Pa. Super. 2016).              We ascertain nothing in the

Sentencing Code that indicates that our Generally Assembly meant the word

“shall” to be permissive in this context.       As the trial court purported to

sentence within the sentencing guidelines, but applied the guidelines

erroneously, we are therefore required to vacate Appellant’s PWID sentence

and remand for resentencing on that count.

      In light of the fact that we are remanding this case for resentencing on

Appellant’s PWID conviction, we believe it prudent to find that vacatur of



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that sentence may disrupt the trial court’s overall sentencing scheme.

Accordingly,   we   vacate   the   judgment   of   sentence   and   remand   for

resentencing on both the possession of a firearm by a prohibited person and

PWID convictions. See Commonwealth v. Conaway, 105 A.3d 755, 765

(Pa. Super. 2014), appeal denied, 118 A.3d 1107 (Pa. 2015). Because we

are vacating Appellant’s possession of a firearm by a prohibited person

sentence, we decline to address Appellant’s arguments relating to application

of section 9712.116 or the discretionary aspects of that sentence.

      Judgment of sentence affirmed in part and vacated in part.         Case

remanded. Jurisdiction relinquished.17




16
   We note, however, that Section 9712.1 is unconstitutional and upon
remand the trial court is not bound by that statute. See Commonwealth
v. Newman, 99 A.3d 86, 97-102. (Pa. Super. 2014) (en banc), appeal
denied, 121 A.3d 496 (Pa. 2015).
17
   This case once again shows why the procedural protections provided by
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and its federal
predecessor, Anders v. California, 386 U.S. 738 (1967), are so critical to
preserving a defendant’s right to the effective assistance of counsel. Far too
often, court-appointed counsel glance over preserved, reversible errors.
This is particularly true in cases such as this, where the Appellant pled
guilty; however, both the United States and Pennsylvania constitutions
provide that even indigent defendants are entitled to vigorous, effective
assistance of counsel. This includes pursuing claims that, although minor in
the grand scheme of the Unified Judicial System, are important to the
defendant.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/19/2016




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