J-A01027-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                    Appellee               :
                                           :
              v.                           :
                                           :
RICHARD ALLEN SETTLES, JR.,                :
                                           :
                    Appellant              : No. 1729 WDA 2013

            Appeal from the Judgment of Sentence October 9, 2013,
                    Court of Common Pleas, Fayette County,
               Criminal Division at No. CP-26-CR-0000210-2012

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and ALLEN, JJ.

MEMORANDUM BY DONOHUE, J.:                        FILED FEBRUARY 24, 2015

        Richard Allen Settles, Jr. (“Settles”) appeals from the judgment of

sentence entered following his convictions of possession of a controlled

substance and possession of a controlled substance with the intent to deliver

(“PWID”).1 Settles challenges only the trial court’s denial of his motion to

suppress. We find no error in the trial court’s denial of Settles’ suppression

motion but conclude that his sentence is illegal. Accordingly, we vacate the

judgment of sentence and remand for resentencing.

        The trial court summarized the facts underlying Settles’ convictions as

follows:

              On January 27, 2012, around 1:12 a.m., Patrolman
              Jamie Holland of the Uniontown Police Department,
              conducted a traffic stop on a van that failed to use a
              right turn signal at an intersection. N.T., 7/31/2012,


1
    35 P.S. § 780-113(a)(16), (30).
J-A01027-15


            at 3-4. As he exited his vehicle, Holland immediately
            detected the odor of marijuana coming from the van,
            the smell of which grew stronger as he neared the
            van. Id. at 6-7. After asking the driver of the van, []
            Settles, for his identification, the officer alerted him
            that he could smell marijuana coming from the
            vehicle. Id. at 7.

            Because of the odor of the marijuana, Holland had
            [Settles] exit the vehicle. Id. at 8. To ensure
            officer’s safety, Holland performed a Terry frisk on
            [Settles] to check for weapons. Id. at 8-9. During
            the pat down, in [Settles’] pants pocket, from the
            feel and packaging, the officer felt what he
            recognized to be a packaged narcotic. Id. at 9. The
            item was a small amount of marijuana in a clear
            plastic baggie that was tied and knotted in the corner
            of the baggie. Id. The officer then proceeded to
            conduct an investigative search of the driver’s area
            by looking into the van but[] not by entering the
            van. Id. at 10, 23-24. As he looked into the van,
            Holland could see, in plain view, a garbage bag with
            marijuana packed inside. Id. at 10, 23. Upon
            viewing the packaged marijuana, he obtained a
            search warrant to search the van. Id. at 11.

Trial Court Opinion, 4/7/14, at 2-3.    The search of the van revealed two

garbage bags full of marijuana, weighing a total of 22,740 grams (or 50.13

pounds). The marijuana recovered from Settles’ front pocket weighed 2.9

grams. Following a jury trial, Settles was convicted of the above-mentioned

crimes and sentenced to five years of imprisonment2 and ordered to pay

various fines and costs. This timely appeal follows.




2
 The trial court imposed this sentence on the PWID charge pursuant to 18
Pa.C.S.A. § 7508(a)(1)(iii). See Trial Court Order, 10/9/13, at 1.


                                     -2-
J-A01027-15


      Settles sets forth two issues for our review in the statement of

questions involved portion of his brief on appeal: “Whether all evidence

should be suppressed when the Terry [f]risk [r]ule was violated” and

“Whether the [e]xclusionary [r]ule applies to the warrantless search of

vehicle [sic].” Settles’ Brief at 7.3

             Our standard of review in addressing a challenge to
            the denial of a suppression motion is limited to
            determining whether the suppression court's factual
            findings are supported by the record and whether
            the legal conclusions drawn from those facts are
            correct. Because the Commonwealth prevailed before
            the suppression court, we may consider only the
            evidence of the Commonwealth and so much of the
            evidence for the defense as remains uncontradicted
            when read in the context of the record as a whole.
            Where the suppression court's factual findings are
            supported by the record, we are bound by these
            findings and may reverse only if the court's legal
            conclusions are erroneous. The suppression court's
            legal conclusions are not binding on an appellate
            court, whose duty it is to determine if the
            suppression court properly applied the law to the
            facts. Thus, the conclusions of law of the courts
            below are subject to our plenary review. Moreover,
            appellate courts are limited to reviewing only the
            evidence presented at the suppression hearing when
            examining a ruling on a pre-trial motion to suppress.

Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014).


3
  In the argument section of his brief, Settles does not delineate two
separate arguments. This runs afoul of our rules, which provide that “[t]he
argument shall be divided into as many parts as there are questions to be
argued; and shall have at the head of each part--in distinctive type or in
type distinctively displayed--the particular point treated therein, followed by
such discussion and citation of authorities as are deemed pertinent.”
Pa.R.A.P. 2119(a). We urge Settles’ counsel to hew more closely to the
rules governing briefing requirements in the future.


                                        -3-
J-A01027-15


      The thrust of Settles’ issues is that Officer Holland could not search his

vehicle without a warrant, and therefore that the trial court should have

suppressed    the   evidence   found   therein.      We   cannot   agree.    In

Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), the Pennsylvania

Supreme Court removed the twin requirements of both probable cause and

exigency for a lawful search of an automobile without a warrant. It held as

follows:

               In sum, our review reveals no compelling
               reason to interpret Article I, Section 8 of the
               Pennsylvania Constitution as providing greater
               protection with regard to warrantless searches
               of motor vehicles than does the Fourth
               Amendment. Therefore, we hold that, in this
               Commonwealth, the law governing warrantless
               searches of motor vehicles is coextensive with
               federal law under the Fourth Amendment. The
               prerequisite for a warrantless search of a
               motor vehicle is probable cause to search;
               no exigency beyond the inherent mobility
               of a motor vehicle is required. The
               consistent and firm requirement for probable
               cause is a strong and sufficient safeguard
               against illegal searches of motor vehicles,
               whose inherent mobility and the endless
               factual circumstances that such mobility
               engenders constitute a per se exigency
               allowing    police    officers to   make    the
               determination of probable cause in the first
               instance in the field.

Gary, 91 A.3d at 138 (emphasis added).            Thus, an officer may lawfully

search an automobile without a warrant when he or she has probable cause

to believe that a crime has been committed or is being committed. At the




                                       -4-
J-A01027-15


suppression   hearing,   Officer   Holland   testified   that   he   smelled   an

overwhelming aroma of marijuana (not burning marijuana) emanating from

Settles’ vehicle.   N.T., 7/31/12, at 8.     This provided probable cause to

believe that criminal activity was occurring, see Commonwealth v. El, 933

A.2d 657, 661 (Pa. Super. 2007), aff'd, 602 Pa. 126, 977 A.2d 1158 (2009)

(“The standard for probable cause is whether the facts and circumstances

within the officer's knowledge are sufficient to warrant a reasonably cautious

person to believe that an offense has been or is being committed.”), and

therefore permitted a lawful search of the vehicle without a warrant.4

      We now turn our attention to Settles’ sentence.5           The trial court

imposed only a minimum sentence of five years. Trial Court Order, 10/9/13,



4
  We pause to note two things. First, although the Gary decision was
published four months before the briefs in this case were filed, neither
Settles nor the Commonwealth mention it. Settles contended, at oral
argument, that the holding of Gary would apply only prospectively. We
disagree. See Passarello v. Grumbine, 87 A.3d 285, 307 (Pa. 2014)
(“The general rule in Pennsylvania is that appellate courts apply the law in
effect at the time of appellate review.”)         Furthermore, despite his
proclamation, Settles has not made a post-argument submission to this
Court to expound on this theory or provide us with authority in support of
his position.

Second, the notes of testimony from the suppression hearing reveal that
after observing marijuana in plain view, Officer Holland secured the vehicle
and sought a warrant before continuing his search. N.T., 7/31/12, at 10-
11. He was not required to do so; as we explained, pursuant to Gary,
Officer Holland could have performed the search without a warrant.
5
  It is axiomatic that this Court may raise issues concerning the legality of a
sentence sua sponte. See Commonwealth v. Mitchell, 986 A.2d 1241,
1244 n.3 (Pa. Super. 2009).


                                     -5-
J-A01027-15


at 1. A flat sentence such as this is illegal because it violates section 9756

of the sentencing code, which requires a trial court to specify both a

maximum     and   minimum    term    when    entering   a   sentence   of   total

confinement. Commonwealth v. Mitchell, 986 A.2d 1241, 1243 (Pa.

Super. 2009); see also 42 Pa.C.S.A. § 9756(b).           Accordingly, we must

vacate Settles’ sentence and remand to the trial court for resentencing.6

      Judgment    of   sentence   vacated.     Case     remanded.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/24/2015




6
   We note that since the imposition of Settle’s sentence, this Court has
found the statutory sentencing provision upon which the trial court relied, 18
Pa.C.S.A. 7508, unconstitutional. Commonwealth v. Cardwell, __ A.3d
__, 2014 WL 6656644 (Pa. Super. Nov. 25, 2014).


                                     -6-
