J-S62040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DUSTIN JOSEPH MILLER

                            Appellant                No. 465 MDA 2016


          Appeal from the Judgment of Sentence November 10, 2015
                In the Court of Common Pleas of Fulton County
             Criminal Division at No(s): CP-29-CR-0000160-2015


BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                      FILED OCTOBER 06, 2016

        Appellant, Dustin Joseph Miller, appeals from the judgment of

sentence entered in the Fulton County Court of Common Pleas, following his

guilty plea to burglary and theft by unlawful taking.1 We affirm.

        The relevant facts and procedural history of this case are as follows.

On July 9, 2015, Appellant entered the victim’s home and removed

seventeen firearms and two chainsaws. On October 6, 2015, Appellant pled

guilty to one count each of burglary and theft by unlawful taking. 2 The court

____________________________________________


1
    18 Pa.C.S.A. §§ 3502(a)(2), 3921(a).
2
  Appellant’s guilty plea included an additional theft count at Docket No.
159-2015, relating to a separate incident, and the court consolidated
sentencing on all three counts. The current appeal, however, lies only from
the judgment of sentence imposed at Docket No. 160-2015, which relates
(Footnote Continued Next Page)
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sentenced Appellant on November 10, 2015, to consecutive terms of

incarceration of nine (9) to forty-eight (48) months for burglary and twelve

(12) to forty-eight (48) months for theft.        Appellant timely filed a post-

sentence motion on November 20, 2015, which the court denied on February

18, 2016. Appellant filed a timely notice of appeal on March 14, 2016. The

court ordered Appellant to file a concise statement of errors complained of

on appeal per Pa.R.A.P. 1925(b), and Appellant timely complied.

      Appellant raises the following issues for our review:

          DID THE SENTENCING COURT ERR IN STRICTLY APPLYING
          THE “RULES” OR “TEST” SET FORTH IN THE STATUTES, 18
          PA.C.S. SECTION 3502(D) AND 42 PA.C.S. SECTION 9765,
          BECAUSE APPLYING THOSE STATUTES AS THE SOLE TEST
          OF MERGER WOULD USURP THE SUPREME COURT’S
          AUTHORITY TO INTERPRET PA. CONST. ART. 1, SECTION
          [10] (PROHIBITION AGAINST DOUBLE JEOPARDY), WHICH
          USURPATION IS AN UNCONSTITUTIONAL VIOLATION OF
          THE SEPARATION OF POWERS[?]

          DID THE SENTENCING COURT ERR IN ITS APPLICATION
          OF THE LANGUAGE OF THE STATUTES, 18 PA.C.S.
          SECTION 3502(D) AND 42 PA.C.S. SECTION 9765,
          BECAUSE THE LANGUAGE OF THE STATUTES DOES NOT
          NECESSARILY EXCLUDE THE APPLICATION OF PRIOR
          PENNSYLVANIA DOUBLE JEOPARDY JURISPRUDENCE
          WHICH INCLUDES NOT JUST THE STRICT ELEMENTS OF
          THE CRIMES, BUT ALSO WHETHER ONE OF THE CRIMES
          REQUIRE A “PROOF OF A FACT” THAT THE OTHER DOES
          NOT.

(Appellant’s Brief at 9).

                       _______________________
(Footnote Continued)

solely to the burglary and theft convictions in connection with the July 9,
2015 incident.



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      In his issues combined, Appellant argues the doctrine of merger is

grounded   in   the   constitutional   prohibition   against   double   jeopardy.

Appellant asserts the relevant merger statutes cannot supersede the courts’

authority to determine whether offenses merge for sentencing under the

double jeopardy clause. Appellant contends a constitutional merger analysis

requires an examination of the statutory elements of the offenses at issue

and the factual circumstances of the particular case.          Appellant further

claims 42 Pa.C.S.A. § 9765 codified preexisting case law, which did not

dictate a strict elements approach to merger.           Appellant contends his

convictions for burglary and theft should merge for sentencing because they

were essentially based on a single criminal act—breaking into a home and

stealing property.    Appellant concludes this Court should vacate his theft

sentence. We disagree.

      “A claim that crimes should have merged for sentencing purposes

raises a challenge to the legality of the sentence. Therefore, our standard of

review is de novo and our scope of review is plenary.” Commonwealth v.

Quintua, 56 A.3d 399, 400 (Pa.Super. 2012), appeal denied, 620 Pa. 730,

70 A.3d 910 (2013). Merger of sentences is governed generally by Section

9765 of the Sentencing Code, which provides:

         § 9765. Merger of sentences

         No 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

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            merge for sentencing purposes, the court may sentence
            the defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765. See also Commonwealth v. Baldwin, 604 Pa. 34,

985 A.2d 830 (2009) (recognizing General Assembly’s prerogative to

determine when offenses merge for sentencing and rejecting claim that

Section 9765 elements test for merger violates federal double jeopardy

clause); Commonwealth v. Wade, 33 A.3d 108 (Pa.Super. 2011) (stating:

“There is nothing in the text of our constitution, the case law interpreting the

Pennsylvania double jeopardy clause, or more modern Pennsylvania or

federal jurisprudence that reveals that the Pennsylvania Constitution affords

greater double jeopardy protections in the merger of sentencing arena than

does the federal constitution”; Section 9765 does not run afoul of double

jeopardy clause in Pennsylvania Constitution). Further, “A person may not

be sentenced both for burglary and for the offense which it was his intent to

commit after the burglarious entry or for an attempt to commit that offense,

unless the additional offense constitutes a felony of the first or second

degree.” 18 Pa.C.S.A. § 3502(d) (emphasis added). See also 18 Pa.C.S.A.

3903(a)(2) (grading theft as second-degree felony where property stolen is

firearm).

      The Crimes Code defines burglary in relevant part as follows:

            § 3502. Burglary

            (a) Offense defined.—A person commits the offense of
            burglary if, with the intent to commit a crime therein, the
            person:

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                                  *    *    *

           (2) enters a building or occupied structure, or separately
           secured or occupied portion thereof that is adapted for
           overnight accommodations in which at the time of the
           offense no person is present[.]

18 Pa.C.S.A. § 3502(a)(2). “A person is guilty of theft if he unlawfully takes,

or exercises unlawful control over, movable property of another with intent

to deprive him thereof.” 18 Pa.C.S.A. § 3921(a).

      Instantly, Appellant entered the victim’s home and stole multiple

firearms and chainsaws.      Appellant pled guilty to burglary and theft by

unlawful taking, which was the offense he intended to commit upon entering

the victim’s home.     The burglary conviction required proof that Appellant

entered the home with intent to commit a crime.          See 18 Pa.C.S.A. §

3502(a)(2). To convict Appellant of theft, the Commonwealth had to prove

Appellant unlawfully took, or exercised control over, movable property of the

victim with intent to deprive him of that property.      See. 18 Pa.C.S.A. §

3921(a).    Thus, each offense requires proof of an element the other does

not. Pursuant to Section 9765, Appellant’s burglary and theft offenses would

not merge for sentencing. See 42 Pa.C.S.A. § 9765. The plain text of the

Section 9765, and the Supreme Court’s pronouncement in Baldwin, belie

Appellant’s claim that the statute does not dictate a pure elements approach

to merger.     See Baldwin, supra at 39, 985 A.2d at 833 (stating: “The

statute’s mandate is clear. It prohibits merger unless two distinct facts are


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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”). Nevertheless, the burglary statute might prohibit

separate sentences “unless the additional offense constitutes a felony of the

first or second degree.”   See 18 Pa.C.S.A. § 3502(d).      Here, Appellant’s

theft offense was properly graded as a second-degree felony.          See 18

Pa.C.S.A. 3903(a)(2). Therefore, the offenses also do not merge under the

terms of the burglary statute. See 18 Pa.C.S.A. § 3502(d).

      Additionally,   Appellant’s   “separation    of   powers”     argument

misconstrues the relationship between double jeopardy and the merger

doctrine.   Both Baldwin and Wade recognized that double jeopardy

protections are principally a restraint on courts and prosecutors; they do not

limit the authority of the General Assembly to define crimes and fix

punishments, including when offenses merge for sentencing. See Baldwin,

supra at 44, 985 A.2d at 836-37 (stating: “With respect to cumulative

sentences imposed in a single trial, the Double Jeopardy Clause does no

more than prevent the sentencing court from prescribing greater punishment

than the legislature intended”); Wade, supra at 120 (stating same).

Therefore, neither 42 Pa.C.S.A. § 9765 nor 18 Pa.C.S.A. § 3502(d) violates

the separation of powers doctrine. Furthermore, Baldwin explicitly rejected

the claim that Section 9765 is unconstitutional under the federal double

jeopardy clause. See Baldwin, supra. Wade likewise held Section 9765


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does not violate the double jeopardy clause of the Pennsylvania Constitution.

See Wade, supra.       By the same logic, 18 Pa.C.S.A. § 3502(d), which

provides even greater protection against cumulative sentences in burglary

cases relative to the baseline set by Section 9765, does not offend federal or

state double jeopardy principles.      Based on the foregoing, the trial court

properly imposed separate sentences for Appellant’s burglary and theft

convictions. Accordingly, we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2016




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