J-S20041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    AUSTIN SMITH                               :
                                               :
                       Appellant               :      No. 1741 WDA 2018

            Appeal from the PCRA Order Entered November 1, 2018
              In the Court of Common Pleas of Jefferson County
             Criminal Division at No(s): CP-33-CR-0000463-2016


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.E.:                            FILED MAY 31, 2019

       Appellant, Austin Smith, appeals from the order entered in the Jefferson

County Court of Common Pleas, which denied his first petition brought

pursuant to the Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

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

June 24, 2016, police entered Appellant’s home pursuant to a search warrant

and found marijuana and thirteen firearms.          On March 1, 2017, Appellant

entered a negotiated guilty plea to thirteen counts of persons not to possess

a firearm.1 Appellant signed a written colloquy, and the court conducted an

oral colloquy on the record. That same day, the court sentenced Appellant as

____________________________________________


1 Appellant had a prior out-of-state conviction equivalent to possession with
intent to deliver. See 35 P.S. 780-113(a)(30).
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negotiated to 4 to 8 years’ imprisonment on Count 5, and 3½ to 7 years’

imprisonment on Count 6, to run consecutively for an aggregate term of 7½

to 15 years’ imprisonment. The court imposed fines on the remaining eleven

counts. Appellant did not file a direct appeal.

      On July 5, 2017, Appellant filed a motion to modify or correct an illegal

sentence, which claimed his convictions should have merged for sentencing,

and an application for leave to file post-sentence motions nunc pro tunc. The

court denied Appellant’s application to file post-sentence motions nunc pro

tunc on July 7, 2017, and denied Appellant’s motion to correct an illegal

sentence on July 26, 2017. On September 14, 2017, Appellant filed a second

motion to modify or correct an illegal sentence, which the court denied on

September 18, 2017. Appellant, on October 16, 2017, filed an application to

withdraw his guilty plea, which the court denied the following day.

      Appellant timely filed pro se a PCRA petition on January 29, 2018. The

PCRA court appointed counsel on February 2, 2018, who filed a petition to

withdraw and a “no-merit” letter pursuant to Commonwealth v. Turner, 518

Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213

(Pa.Super. 1988) (en banc), on October 31, 2018. The following day, the

PCRA court granted counsel’s petition to withdraw and issued notice of intent

to dismiss pursuant to Pa.R.Crim.P. 907. On December 3, 2018, Appellant

filed a premature pro se notice of appeal. The PCRA court, on December 5,

2018, ordered Appellant to file a concise statement of errors complained of on


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appeal pursuant to Pa.R.A.P. 1925(b).            On December 7, 2018, the court

denied PCRA relief.2 On December 26, 2018, Appellant timely filed a pro se

Rule 1925(b) statement.3

       Appellant raises the following issues for our review:

          IS SECTION 6105(A)(1) OF TITLE 18 STATUTORILY
          AMBIGUOUS IN THAT A “COMMON PERSON” CANNOT
          PREDICATE ON ITS FACE WHETHER, “THE POSSESSION OF
          A FIREARM” CONSTITUTES A SINGLE UNIT OF
          PROSECUTION OR MULTIPLE UNIT(S) OF PROSECUTION IF
          MORE [THAN] ONE FIREARM(S) ARE FOUND IN THE [S]AME
____________________________________________


2 Appellant’s notice of appeal relates forward to December 7, 2018, the date
the PCRA court denied relief.         Therefore, we have no jurisdictional
impediments to our review. See Pa.R.A.P. 905(a)(5) (stating: “A notice of
appeal filed after the announcement of a determination but before the entry
of an appealable order shall be treated as filed after such entry and on the
day thereof”).

3 Our Supreme Court has expressly disapproved of the practice of courts
making a wholesale adoption of one party’s position.                     See, e.g.,
Commonwealth v. (Roy L.) Williams, 557 Pa. 207, 224-25, 732 A.2d 1167,
1176 (1999) (acknowledging there is no prohibition for court to adopt portions
of advocate’s arguments in support of judicial disposition; refusing, however,
to condone wholesale adoption of advocate’s stance in court’s disposition of
post-conviction case involving review of death sentence).                 See also
Commonwealth v. Fulton, 583 Pa. 65, 71, 876 A.2d 342, 345 (2002)
(extending Supreme Court’s disapproval beyond capital cases and stressing
importance of court providing independent judicial analysis). “In cases
challenging the scope of this rule, the Court has consistently explained that
the type of case has no bearing on its conclusion: the need for independent
judicial analysis is defeated by a trial court’s failure to articulate its individual
reasoning.” See A.V. v. S.T., 87 A.3d 818, 823 (Pa.Super. 2014).

Here, in its Rule 1925(a) opinion, the PCRA court just refers us to counsel’s
no-merit letter, which the court essentially adopts wholesale; and we are left
without the benefit of the court’s independent reasoning. Prevailing precedent
requires the court to refrain in the future from this kind of wholesale adoption
of one party’s position. Accordingly, we base our review on the court’s order,
the certified record, and the applicable law.


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         LOCATION AT THE SAME TIME. WHICH, IN TURN, IF
         SUBJECTING ONE TO MULTIPLE UNIT(S) OF PROSECUTION
         COULD AND WOULD THEN VIOLATE THE DOUBLE JEOPARDY
         CLAUSE OF THE UNITED STATES FIFTH AMENDMENT?

         WAS APPELLANT’S CRIMINAL INFORMATION GENERALLY
         IMPROPER BEAUSE IT THEN PREJUDICED APPELLANT INTO
         ACCEPTING   A  PLEA   AGREEMENT    FOR   MULTIPLE
         SENTENCE(S) FOR A SINGLE CRIMINAL ACT OR OFFENSE
         WHICH, IS IN CLEAR VIOLATION OF THE DOUBLE
         JEOPARDY WHEN THE SENTENCE(S) WERE THEN IMPOSED
         IN THE CONSECUTIVE NATURE?

(Appellant’s Brief at 6).

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court’s determination

and whether its decision is free of legal error. Commonwealth v. Conway,

14 A.3d 101, 109 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795

(2011). This Court grants great deference to the findings of the PCRA court if

the record contains any support for those findings. Commonwealth v. Boyd,

923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d

74 (2007).     We give no such deference, however, to the court’s legal

conclusions.   Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super.

2012). Further, a petitioner is not entitled to a PCRA hearing as a matter of

right; the PCRA court can decline to hold a hearing if there is no genuine issue

concerning any material fact, the petitioner is not entitled to PCRA relief, and

no purpose would be served by any further proceedings. Commonwealth v.

Wah, 42 A.3d 335, 338 (Pa.Super. 2012); Pa.R.Crim.P. 907.

      In his issues combined, Appellant argues the language of Section

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6105(a)(1), which uses the term “a firearm,” is ambiguous and vague because

a lay person cannot decipher whether this statute punishes each firearm

possessed if multiple firearms are found in the same location at the same

time. Appellant submits the General Assembly did not define “a” in Section

6105, and contends “a firearm” could mean one firearm or some firearms.

Appellant avers federal courts have interpreted persons-not-to-possess

statutes to use collective possession at one time as the unit of punishment,

and not the number of firearms. Appellant admits that federal statutes use

the term “any firearm” instead of “a firearm,” however, Appellant contends

the words “any” and “a” are interchangeable. Appellant asserts that Section

6105 should be interpreted as using “possession” as the unit of punishment

instead of the number of firearms, and that his conviction for each possessed

firearm violates the double jeopardy clause. Appellant complains the criminal

information, which contained thirteen counts of persons not to possess a

firearm, induced him into an unknowing and involuntary guilty plea, because

Appellant felt he was “lucky” to receive two consecutive sentences for a total

of 7½ to 15 years’ imprisonment. Appellant maintains the court should have

merged the convictions for sentencing. Appellant concludes this Court should

vacate his judgment of sentence and remand for the trial court to impose

concurrent sentences. We disagree.

      A petitioner is eligible for relief under the PCRA if he pleads and proves

by a preponderance of the evidence that his conviction or sentence resulted


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from, inter alia, an unlawfully induced guilty plea or the imposition of a

sentence greater than the lawful maximum. 42 Pa.C.S.A. § 9543(a)(2)(iii)

and (vii).   A claim that a defendant’s convictions should have merged for

purposes     of   sentencing   implicates          the     legality   of   the   sentence.

Commonwealth v. Jacobs, 900 A.2d 368, 373 (Pa.Super. 2006), appeal

denied, 591 Pa. 681, 917 A.2d 313 (2007).

      Section 6105 of the Pennsylvania Uniform Firearms Act describes in

pertinent part the offense of persons not to possess firearms:


         § 6105. Persons not to possess, use, manufacture,
            control, sell or transfer firearms

         (a)      Offense defined.—

            (1) A person who has been convicted of an offense
         enumerated in subsection (b), within or without this
         Commonwealth, regardless of the length of sentence or
         whose conduct meets the criteria in subsection (c) shall not
         possess, use, control, sell, transfer or manufacture or obtain
         a license to possess, use, control, sell, transfer or
         manufacture a firearm in this Commonwealth.

                                  *        *       *

         (c)     Other persons.—In addition to any person who has
         been convicted of any offense listed under subsection (b),
         the following persons shall be subject to the prohibition of
         subsection (a):

                                      *        *       *

            (2) A person who has been convicted of an offense under
         the act of April 14, 1972 (P.L. 233, No. 64), known as The
         Controlled Substance, Drug, Device and Cosmetic Act, or
         any equivalent Federal statute or equivalent statute of any
         other state, that may be punishable by a term of


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          imprisonment exceeding two years.

                                     *     *    *

18 Pa.C.S.A. § 6105(a)(1), (c)(2).        “The Legislature’s use of the indefinite

article ‘a’ in the definition of the proscribed conduct makes it clear a person

who is prohibited from possessing a firearm under [S]ection 6105 violates

[Section] 6105 for each firearm possessed.” Commonwealth v. Jones, 2

A.3d 650, 651 (Pa.Super. 2010) (affirming denial of PCRA relief, where

Appellant    challenged   consecutive      sentences   under   Section       6105   for

possessing more than one firearm; holding that, under Section 6105,

prosecution for each individual firearm possessed does not violate double

jeopardy; separate and consecutive sentences for each possession are legal).

        A defendant is not required to “be pleased with the outcome of his

decision to enter a plea of guilty[; a]ll that is required is that his decision to

plead     guilty   be   knowingly,       voluntarily   and   intelligently     made.”

Commonwealth v. Moser, 921 A.2d 526, 528-29 (Pa.Super. 2007). A guilty

plea will be deemed valid if the totality of the circumstances surrounding the

plea shows that the defendant had a full understanding of the nature and

consequences of his plea such that he knowingly and intelligently entered the

plea of his own accord. Commonwealth v. Fluharty, 632 A.2d 312, 314-15

(Pa.Super. 1993). A defendant is presumed to be aware of what he is doing

when he enters a guilty plea, and the defendant bears the burden to prove

otherwise.     Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super.


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2003).     Mere disappointment in the sentence does not constitute the

necessary “manifest injustice” to render the defendant’s guilty plea

involuntary. Id. at 522. See also Commonwealth v. Kelly, 5 A.3d 370,

377 (Pa.Super. 2010), appeal denied, 613 Pa. 643, 32 A.3d 1276 (2011)

(reiterating principle that courts discourage entry of plea as sentence-testing

device).

      The Pennsylvania Rules of Criminal Procedure mandate that pleas be

taken in open court, and require the court to conduct an on-the-record

colloquy to ascertain whether a defendant is aware of his rights and the

consequences of his plea. Commonwealth v. Hodges, 789 A.2d 764, 765

(Pa.Super. 2002) (citing Pa.R.Crim.P. 590).       Specifically, the court must

affirmatively demonstrate the defendant understands: (1) the nature of the

charges to which he is pleading guilty; (2) the factual basis for the plea; (3)

his right to trial by jury; (4) the presumption of innocence; (5) the permissible

ranges of sentences and fines possible; and (6) that the judge is not bound

by the terms of the agreement unless he accepts the agreement.

Commonwealth v. Watson, 835 A.2d 786, 796-97 (Pa.Super. 2003).

      Instantly, Appellant entered a negotiated guilty plea to thirteen counts

of persons not to possess firearms. Appellant signed a written plea colloquy,

and the court conducted an oral plea colloquy on the record.          The court

sentenced Appellant as negotiated to two consecutive sentences, one of 4 to

8 years’ imprisonment, and one of 3½ to 7 years’ imprisonment, for an


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aggregate term of 7½ to 15 years’ imprisonment.

      Here, Appellant was a person not to possess firearms; and police found

thirteen firearms in his bedroom.     Therefore, the Commonwealth properly

charged Appellant with thirteen counts under Section 6105. See 18 Pa.C.S.A.

§ 6105(a)(1), (c)(2). The court confirmed in both the written and oral plea

colloquies that Appellant and the Commonwealth had negotiated two,

consecutive sentences for persons not to possess firearms; and the court

sentenced Appellant accordingly.     See Watson, supra; Hodges, supra.

Under prevailing law, the court could not merge the sentences on Appellant’s

multiple firearms convictions, and it had no obligation to run these sentences

concurrently.   See Jones, supra.       Appellant knowingly, voluntarily, and

intelligently entered into his negotiated guilty plea, and he is not entitled to

withdraw from it merely because he is now dissatisfied with his bargain. See

Moser, supra; Fluharty, supra. Therefore, the PCRA court properly denied

relief. See Conway, supra. Accordingly, we affirm.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/2019


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