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                                      2019 PA Super 240
    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA

                    v.


    SCOTT ALLEN KILEY

                          Appellant              :   No. 1278 MDA 2018

          Appeal from the Judgment of Sentence Entered June 5, 2018
      In the Court of Common Pleas of Juniata County Criminal Division at
                        No(s): CP-34-CR-0000128-2017


BEFORE:           BOWES, J., OLSON, J., and STABILE, J.

OPINION BY OLSON, J.:                                     FILED AUGUST 09, 2019

        Appellant, Scott Allen Kiley, appeals from the judgment of sentence

entered on June 5, 2018, in the Juniata County Court of Common Pleas. We

vacate the judgment of sentence and remand for            a   new sentencing hearing

consistent with this opinion.

        The trial court set forth the relevant factual and procedural history as

follows.
              On March 12, 2018, [Appellant] pled guilty to one count
        each of: operating a methamphetamine lab[],['] [manufacturing a




1   35 P.S.   §   780-113.4(a)(1).
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        controlled substance],[2] risking catastrophe[],[3] and possession
        of a precursor substance with intent to manufacture[].[4] Other
        than the Commonwealth agreeing that the weight of the
        methamphetamine was 50-100 grams to lower [Appellant's]
        offense gravity score to [ten], [Appellant] entered an open guilty
        plea. On June 5, 2018, [Appellant] received three concurrent
        sentences[:] [four to ten] years for [manufacturing a controlled
        substance], [two to ten] years for operating a methamphetamine
        lab, and [one to two] years for possession of            precursor
        substances with intent to manufacture[.] [Appellant also received]
        one consecutive sentence of [one to two] years for risking
        catastrophe, for a total sentence of [five to] 12 years.

               [Appellant] received credit [for time served] from June 12,
        2017 to June 5, 2018. [At Appellant's sentencing hearing,] [a]fter
        [the court imposed sentence], [Appellant] stated he thought the
        plea agreement he signed was for [three to six] years. [T]he court
        and the Attorney General reviewed the written plea agreement
        with [Appellant], noting that the document did not mention [three
        to six] years, only that the maximum sentence was 44 years. The
        Attorney General outlined the plea agreement again.


              At [Appellant's] guilty plea hearing on March 12, 2018, the
        Attorney General stated, and the court reiterated, that this was
        an open guilty plea and the only agreement was to a weight of
        50-100 grams of methamphetamine. [Appellant] was colloquyed
        and acknowledged that he had read and understood the guilty plea
        documents. During [Appellant's] sentencing hearing, the Attorney
        General explained [Appellant's] maximum sentence and reiterated
        the only agreement was the methamphetamine weight.



2   35 P.S. 780-113(a)(30). This charge is usually referred to as possession
              §
with intent to deliver and abbreviated "PWID." In this case, based on our
review of the record, it is clear that Appellant's plea was based entirely on his
manufacture of methamphetamine in his home, for personal use. There was
no evidence of delivery or intent to deliver, thus, for clarity, we refer to this
count as "manufacturing a controlled substance" throughout this opinion.

3   18 Pa.C.S.A. § 3302(b).

4   35 P.S.   §   780-113.1(a)(3).
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               In announcing the sentence, the court noted each sentence
        was within the standard range and that the court had considered
        [Appellant's] counseling. [Appellant relied on an email from the
        Deputy Attorney General to support his claim that the plea
        agreement entailed only a three to six year sentence.] The email
        [to which Appellant referred only discussed] the [manufacturing a
        controlled substance] charge having a [possible] minimum
        sentence of 36-48 months. As the court imposed a [four to ten]
        year sentence on this charge, [the sentence fell within] this
        guideline []. Therefore, [Appellant's] total sentence of [five to]
        12 years is a standard range sentence that meets the parameters
        of the guilty plea.

Trial Court Opinion, 9/18/2018, at 1-3 (unnecessary capitalization and internal

citations removed).5

        Appellant presents three issues for our review:

        1.   Whether the sentence imposed was outside the scope of the
             plea agreement?6

        2. Should the sentence     for risking a catastrophe have merged
             with another count set forth in the information?



5 Appellant filed a timely post -sentence motion on June 15, 2018, which the

trial court denied by order dated June 25, 2018, and entered on the docket
on June 27, 2018. Appellant filed a supplemental post -sentence motion on
July 9, 2018. Based on the record, it does not appear that Appellant obtained
leave of court to file a supplemental post -sentence motion. As such, the
supplemental motion was untimely filed. See Pa.R.Crim.P. 720. However,
Appellant timely filed his notice of appeal on July 24, 2018. The trial court
never ruled on Appellant's untimely supplemental post -sentence motion. On
July 31, 2018, the trial court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
complied on August 15, 2018. The trial court filed its 1925(a) opinion on
September 19, 2018.

6 Appellant's first issue was not raised in his original, timely, post -sentence
motion. Appellant, however, questioned whether his sentence was outside
the scope of his plea agreement at his June 5, 2018 sentencing hearing. Thus,
we decline to find the issue waived for appellate review.

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        3. Did the consecutive sentences imposed   for the manufacture of
           a  controlled substance and risking a catastrophe raise the
           aggregate sentence to an unreasonably excessive level in light
           of the conduct at issue in this case and Appellant's mitigating
           circumstances?

Appellant's Brief at   7   (capitalization removed).

        In his first issue, Appellant argues that the sentence imposed by the

sentencing court exceeds the scope of his negotiated plea agreement.                     In

assessing whether      a   plea agreement has been breached, we consider what

the parties to the agreement reasonably understood the terms to be.

Commonwealth v. Hainesworth, 82 A.3d 444, 447                     (Pa. Super. 2013).     In

making this determination, we look at the totality of the circumstances and

construe any ambiguities in the agreement against the Commonwealth.                   Id.
        Appellant contends that, as he understood it, his plea agreement

included   a   minimum sentence between 36 and 48 months, and the 60 -month

minimum sentence he received represented                a   breach of that agreement.

Appellant bases this contention on       a   November 28, 2017 email from Deputy

Attorney General Bob Smulktis to Appellant's counsel. The email states, in

relevant part, the following: "[f]or [Appellant] I received approval for          a    plea

to all charges, with the OGS [(offense gravity score)] on the [manufacturing

a   controlled substance] charge being reduced to           a   [ten], with the guideline

range being 36-48 months.          This is   a   one year reduction from the original

guidelines." Appellant's Concise Statement, 8/15/2018, at Exhibit "A."




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        Appellant's contention that he understood his plea agreement to include

a    term that called for   a   minimum aggregate sentence between 36 and 48

months' incarceration       is belied   by the record.       The plea agreement that

Appellant signed does not include any reference to an aggregate minimum

sentence between 36 and 48 months.                     The agreement notes that the

maximum penalty for the charges to which Appellant pled                   is   44 years'

incarceration and/or   a    $255,000.00 fine. The "additional terms of this plea

agreement" portion of the form          is   left blank.   Appellant's Plea Agreement,

3/12/2018, at 1-4. Appellant relies on an email that makes no offer of                a


proposed aggregate sentence.                     The email simply confirmed that the

Commonwealth would stipulate to              a   quantity of methamphetamine of 50 to

100 grams in order to reduce the offense gravity score of the manufacturing

a   controlled substance charge. Moreover, at the hearing on Appellant's guilty

plea, the following exchange took place between Deputy Attorney General

Smulktis, the court, Appellant's counsel, Ralph A. Germak, Esquire, and

Appellant.

        Mr. Smulktis: There is a preliminary agreement, Your Honor, that
        is that Count 3, the Commonwealth and [d]efense [c]ounsel have
        agreed to the-essentially, the weight would be between 50 and
        100 grams of methamphetamine, which would reduce the offense
        gravity score to a [ten] from its previous [total] of 11.

        The Court: Okay.

        Mr. Smulktis: But beyond that,                 that's the extent of the
        agreement in this case.

        The Court: All right.

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        Mr. Germak: Your Honor, we did prepare a plea agreement; and
        it's in writing, and we have it for Your Honor. The recitation made
        by the Attorney General's Office is correct. There is a reduction
        in the amount of volume of liquid-well, material in Count 3, and
        we are asking the [c]ourt for a [p]re-[s]entence [i]nvestigation
        [r]eport so that we'll be better prepared to make our legal
        arguments at sentencing-prior to sentencing.


        The Court: Mr. Kiley, your attorney has handed me a plea
        colloquy that indicates you are, in essence, tendering an open plea
        to all the counts contained in the [i]nformation with the
        understanding that on Count 3, the quantity will be decreased to
        50 to 100 grams. You understand[] that, sir?

        [Appellant]:          Yes.

N.T., 3/12/2018, at 2-3. Appellant entered an open plea and could not have

reasonably understood the plea agreement with the Commonwealth to include

a   minimum aggregate sentence of 36 to 48 months' incarceration. Appellant's

first claim fails.

        In his second claim, Appellant contends that his conviction for risking               a


catastrophe should have merged with one of his other charges for sentencing

purposes.     Such       a    claim raises   a   challenge to the legality of his sentence.

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

our standard of review           is de   novo and our scope of review   is   plenary.   Id.
        Appellant essentially argues that manufacturing methamphetamine

inherently risks     a       catastrophe and, therefore, the crimes should merge for

sentencing. Merger of sentences is controlled by 42. Pa.C.S.A.                 §   9765, which

provides,



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      [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.A     §   9765 (emphasis added).          It   is   undisputed that all of the charges

to which Appellant pled guilty arose from            a    single criminal act, i.e., Appellant's

production of methamphetamine in his home. However, "there                         is no   merger

if each    offense requires           proof of an element the other does not."

Commonwealth v. Quintua,                   56 A.3d 399, 401 (Pa. Super. 2012).              Thus,

we must determine whether all of the statutory elements of risking                                 a


catastrophe are included in any of the other charges to which Appellant pled

guilty, or vice versa.

      Risking       a   catastrophe   is   defined as follows.        "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) (emphasis added).

The "other dangerous means" listed under subsection (a) include, "explosion,

fire, flood, avalanche, collapse of building, release of poison gas, radioactive

material or other harmful or destructive force or substance, or by any other

means of causing potentially widespread injury or damage[.]"                                   18

Pa.C.S.A   §   3302(a) (emphasis added).

      Count I of the information, possessing precursor substances with intent

to manufacture, criminalizes, "[p]ossessing                      phenylpropanolamine, phenyl


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acetone, methylamine, ammonium sulfate, ammonium nitrate, phenyl acetic

acid or        a    precursor substance with intent to unlawfully manufacture                       a


controlled substance." 35 P.S.               §   780-113.1(a)(3). Clearly, this charge does

not contain all of the elements of risking                 a   catastrophe. Specifically, risking   a


catastrophe includes the element of actual employment of dangerous

means-in this case, chemicals-not just their possession.                               Furthermore,

possessing precursor substances includes the element of "intent to unlawfully

manufacture          a   controlled substance," which risking             a   catastrophe does not.

Therefore, these charges do not merge for sentencing.

        Similarly, count III of the information, manufacturing                         a   controlled

substance, prohibits "[t]he manufacture, delivery, or possession with intent

to manufacture or deliver           a   controlled substance by           a   person not registered

under the act[.]" 35 P.S.               §   780-113(a)(30).            Manufacturing   a   controlled

substance certainly does not include all of the elements of risking                                 a


catastrophe.          Specifically, it does not include the employment of dangerous

means with the potential to cause widespread injury or damage. Moreover,

risking    a       catastrophe does not include the element of manufacturing                        a


controlled substance. Thus, these charges do not merge for sentencing.

        Count IV of the information, operating                   a   methamphetamine laboratory,

is   defined as follows,

        A person commits the offense of operating a methamphetamine
        laboratory if the person knowingly causes a chemical reaction
        involving ephedrine, pseudoephedrine or phenylpropanolamine,
        or any other precursor or reagent substance under section 13.1[]

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        for the purpose of manufacturing methamphetamine or
        preparing a precursor or reagent substance for the manufacture
        of methamphetamine.

35 Pa. C.S.A    §   780-113.4(a)(1) (emphasis added).            Appellant's argument

applies best to this charge, however, it is ultimately unavailing.               Risking   a


catastrophe does not include the element, "for the purpose of manufacturing

methamphetamine," and operating        a   methamphetamine laboratory does not

include the element of risking widespread injury or damage. While it may be

true that the chemical reaction involved in manufacturing methamphetamine

is   potentially dangerous, and perhaps presents     a    risk of catastrophe, that risk

is   not the conduct that is criminalized by 35 P.S.                §   780-113.4(a)(1).

Therefore, Appellant's second claim, that risking          a   catastrophe should have

merged with one of his other charges, fails.

        However, we find that Appellant is, in fact, subject to an illegal sentence

under the doctrine of merger. Although risking        a   catastrophe does not merge

with any other offense to which Appellant pled guilty, manufacturing                       a


controlled substance and operating         a   methamphetamine laboratory should

have merged for sentencing in this case.' Again, manufacturing               a   controlled

substance proscribes, "[t]he manufacture, delivery, or possession with intent




  Appellant did not raise or brief this issue, but because it pertains to the
legality of his sentence, this issue cannot be waived and it may be addressed
by the Court sua sponte. See Commonwealth v. Kelly, 78 A.3d 1136, 1145
(Pa. Super. 2013).


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to manufacture or deliver         a   controlled substance by              a   person not registered

under the act[.]" 35 P.S.         §   780-113(a)(30). Appellant's guilty plea to this

charge was based solely on his manufacture of                             a    controlled substance,

namely, nnethannphetannine.8                Operating          a    methamphetamine laboratory,

although more specific than           §   780-113(a)(30), also proscribes manufacturing

methamphetamine.           Based on the facts of this case, in sum and substance,

manufacturing     a    controlled substance contains all of the elements of operating

a   methamphetamine laboratory. Appellant's convictions arose from                             a   single

criminal act and manufacturing               a       controlled substance contains all of the

elements of operating         a   methamphetamine lab; therefore, these offenses

merge for sentencing purposes.

        Pursuant to 42. Pa.C.S.A.                §    9765, where two charges merge, the

appellant may only be sentenced on the higher graded offense.                                      Here,

operating   a   methamphetamine laboratory                    is   the higher graded offense. See

18 Pa.C.S.A. § 106(b)(5). The trial court sentenced Appellant,                            inter alia, to

concurrent terms of four to ten years for manufacturing                        a   controlled substance




8 Based on the criminal complaint and the notes of testimony from both the
plea and sentencing hearings, it is clear that Appellant was addicted to
methamphetamine and manufactured it at home using a "one -pot" method
for his personal use. In fact, the Commonwealth stipulated to a lesser weight
of the methamphetamine for the plea deal to reflect the fact that the bulk of
what was confiscated from Appellant was an unusable solvent, which is a
by-product of the "one -pot" method. Appellant signed a plea agreement that
refers to this charge as "PWI to Mfg[.]" Appellant's Plea Agreement,
3/12/2018, at     1.

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and two to ten years for operating   a   methamphetamine laboratory. As these

two charges merge for sentencing purposes, and because Appellant must be

sentenced on the higher graded offense -operating         a   methamphetamine

laboratory -we have upset the trial court's sentencing scheme. Accordingly,

we remand for re -sentencing consistent with this opinion.     As such, we will

not address Appellant's third claim, which challenges the discretionary aspects

of his sentence.

        Judgment    of sentence vacated.        Case   remanded.    Jurisdiction

relinquished.




Judgment Entered.




J    seph D. Seletyn,
Prothonotary


Date: 8/9/2019
