J-S76043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    MARKEASE GILBERT COUSINS,

                             Appellant                 No. 1411 EDA 2017


             Appeal from the Judgment of Sentence March 28, 2017
                in the Court of Common Pleas of Chester County
              Criminal Division at Nos.: CP-15-CR-0001915-2009
                            CP-15-CR-0003014-2016


BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED JANUARY 09, 2018

        Appellant, Markease Gilbert Cousins, appeals from the judgment of

sentence imposed following his conviction of possession of a controlled

substance and revocation of his probation at the above-stated docket

numbers. Appellant challenges the legality and discretionary aspects of his

sentence. We affirm.

        The trial court aptly set forth the relevant background of this case as

follows:
              On July 21, 2016, [Appellant] was arrested in Coatesville on
        an active bench warrant. When he was taken into custody, a
        search incident to arrest was conducted. During the search, 16
        bags containing a total of 1.75 grams of cocaine were found on
        his person. Following a stipulated facts trial on February 3, 3017,
        [Appellant] was found guilty of Possession of a Controlled
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S76043-17


       Substance (35 P.S. § 780-113[(a)(16)]([Docket] No. 3014-16).
       This conviction constituted a violation of probation (hereinafter
       “VOP”) for a prior conviction for Conspiracy to Commit Burglary
       ([Docket] No. 1915-09).

              [Appellant] was sentenced on March 28, 2017[, following
       preparation of a pre-sentence investigation report (PSI)]. He
       received 1-3 years [of] incarceration for the possession charge[1]
       and an additional 1-5 years on the VOP for a total of 2-8 years
       [of] imprisonment.

             On April 7, 2017, [Appellant] filed a Petition for
       Reconsideration and Reduction of Sentence. His Petition was
       denied by Order dated April 10, 2017. In the Order, the court
       explained that [Appellant’s] Petition was denied based on [his]
       very poor prior record and his awful performance on probation and
       parole.

            Appellant thereafter filed a Notice of Appeal on April 26,
       2017. On April 27, 2017 [Appellant] was ordered to file a Concise
       Statement of Matters Complained of on Appeal, which was filed on
       May 15, 2017. . . .

(Trial Court Opinion, 6/26/17, at 1-2) (record citation omitted).

       Appellant raises the following issues for our review:

       [I.] Did the trial court sentence the [A]ppellant to an illegal
       sentence under 35 P.S. § 780-113(b) when the court sentenced
       the [A]ppellant to 1 year to 3 years of incarceration on the charge
       of possession of a controlled substance when the [A]ppellant only
       had prior offenses for possession of paraphernalia and possession
       of a small amount of marijuana?

       [II.] Did the trial court abuse its discretion by sentencing the
       [A]ppellant to an excessive term of incarceration when the [c]ourt
       sentenced him to consecutive sentences on term numbers 1915-
____________________________________________


1Appellant had prior convictions in 2011 for possession of drug paraphernalia
and possession of a small amount of marijuana, 35 P.S. §§ 780-113(a)(32)
and (31), respectively. (See Trial Ct. Op. at 5; Appellant’s Brief, at 5, 9;
Commonwealth’s Brief, at 5, 8).



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       2009 and 3014-2016 for an aggregate sentence of 2 years to 8
       years?

(Appellant’s Brief, at 4).2

       Appellant first challenges the legality of the not less than one nor more

than three-year sentence imposed on his possession of a controlled substance

conviction.    (See Appellant’s Brief, at 9-13).     Appellant contends that the

maximum term of incarceration for this offense is one year, where his prior

convictions were for possession of drug paraphernalia and possession of a

small amount of marijuana. (See id. at 9). This issue does not merit relief.

              It is . . . well-established that [i]f no statutory authorization
       exists for a particular sentence, that sentence is illegal and subject
       to correction. An illegal sentence must be vacated. Issues
       relating to the legality of a sentence are questions of law[.] . . .
       Our standard of review over such questions is de novo and our
       scope of review is plenary.

Commonwealth v. Kline, 166 A.3d 337, 340–41 (Pa. Super. 2017) (citations

and quotation marks omitted).

              Interpretation of a statute is guided by the polestar
       principles set forth in the Statutory Construction Act, 1 Pa.C.S.[A.]
       § 1501 et seq. Our paramount interpretative task is to give effect
       to the intent of our General Assembly in enacting the particular
       legislation under review. [T]he best indication of legislative intent
       is the plain language of a statute. Furthermore, in construing
       statutory language, words and phrases shall be construed
       according to rules of grammar and according to their common and
       approved usage.




____________________________________________


2We have re-ordered Appellant’s questions to correspond to the body of his
brief.

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Commonwealth v. Parsons, 166 A.3d 1242, 1246 (Pa. Super. 2017) (case

citations and quotation marks omitted). We also note that the provisions of a

penal statute must be strictly construed. See 1 Pa.C.S.A. § 1928(b)(1).

      Instantly, Appellant was convicted of possession of a controlled

substance pursuant to 35 P.S. § 780-113(a)(16). The applicable sentencing

provision for this conviction states:

      (b) Any person who violates any of the provisions of clauses (1)
      through (11), (13) and (15) through (20) or (37) of subsection
      (a) shall be guilty of a misdemeanor, and except for clauses (4),
      (6), (7), (8), (9) and (19) shall, on conviction thereof, be
      sentenced to imprisonment not exceeding one year or to pay a
      fine not exceeding five thousand dollars ($5,000), or both, and for
      clauses (4), (6), (7), (8), (9) and (19) shall, on conviction thereof,
      be sentenced to imprisonment not exceeding three years or to pay
      a fine not exceeding five thousand dollars ($5,000), or both; but,
      if the violation is committed after a prior conviction of such
      person for a violation of this act under this section has
      become final, such person shall be sentenced to
      imprisonment not exceeding three years or to pay a fine not
      exceeding twenty-five thousand dollars ($25,000), or both.

35 P.S. § 780-113(b) (emphasis added).

      Appellant contends that this provision is ambiguous, and should be

construed narrowly to require a prior conviction for one of the clauses

specifically listed in 780-113(b), (i.e., (1) through (11), (13), and (15)

through (20) or (37) of subsection (a)), as opposed to any conviction under

780-113. (See Appellant’s Brief, at 9-10, 13). Because his prior offenses

were pursuant to clauses (31) and (32), he contends, the sentencing

enhancement does not apply to him. (See id. at 9). We disagree.




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      “Normally, the incarceration for [drug] possession cannot exceed one

year. 35 P.S. § 780-113(b).” Commonwealth v. Pitner, 928 A.2d 1104,

1111, (Pa. Super. 2007), appeal denied, 944 A.2d 757 (Pa. 2008). “However,

if the possession occurs after a prior conviction under the Act, the

maximum term of imprisonment is three years.” Id. (citing 35 P.S. § 780-

113(b) and stating that it is unambiguous) (emphasis added). An appellant’s

“prior drug convictions[] ma[ke] him subject to the increased penalty.” Id.

at 1112.

      Instantly, as noted, Appellant had prior convictions for possession of

drug paraphernalia and possession of a small amount of marijuana, both of

which are convictions under section 780-113 of The Controlled Substance,

Drug, Device and Cosmetic Act. Therefore, Appellant committed the current

possession offense “after a prior conviction . . . for a violation of this act under

this section[,]” and the trial court, under the plain language of the statute,

was required to sentence him to a term of “imprisonment not exceeding three

years[.]” 35 P.S. § 780-113(b); see also Parsons, supra at 1246.

      We find no support in the statutory language itself or other legal

authority for the strained interpretation Appellant offers.           Instead, we

conclude that there is “nothing ambiguous about subsection (b)” and

Appellant’s “prior drug convictions[] ma[ke] him subject to the increased

penalty.” Pitner, supra at 1112. Therefore, the trial court’s sentence was

not illegal, and Appellant’s first claim lacks merit.




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      Appellant next challenges the discretionary aspects of his sentence,

arguing that the trial court’s aggregate sentence of not less than two nor more

than eight years’ incarceration was excessive and constitutes too severe a

punishment, in light of the non-violent simple possession charge in this case.

(See Appellant’s Brief, at 8, 13-16).

      Appellant’s issue challenges the discretionary aspects of his sentence.

             Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. Rather, Appellant must
      first meet his burden of satisfying the following four elements
      before we will review the discretionary aspect of a sentence:

            (1) whether 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 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.[ ] § 9781(b).

Commonwealth v. Johnson-Daniels, 167 A.3d 17, 27 (Pa. Super. 2017)

(case citations and quotation marks omitted).

      Here, Appellant met the first three elements by filing a timely notice of

appeal, preserving the issue in his post-sentence motion, and including a Rule

2119(f) statement in his brief. Because Appellant’s claim that the trial court’s

aggregate sentence was excessive and disproportionate to his offense

presents a substantial question, we will review it on the merits.           See

Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006). Our

standard of review is as follows:

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             Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

Johnson-Daniels, supra at 28 (citation omitted).

      We begin by noting that where “the trial court has the benefit of a pre-

sentence report, we presume that the court was aware of relevant information

regarding the defendant’s character and weighed those considerations along

with any mitigating factors.” Commonwealth v. Johnson, 125 A.3d 822,

827 (Pa. Super. 2015) (citation omitted). We are also cognizant of the “[l]ong

standing precedent . . . that 42 Pa.C.S.[A.] section 9721 affords the

sentencing   court   discretion   to   impose   its   sentence   concurrently   or

consecutively to other sentences being imposed at the same time or to

sentences already imposed.”       Johnson-Daniels, supra at 28 (citations

omitted).

      Here, at the sentencing hearing, the trial court explained its rationale

for the sentence as follows:

            THE COURT: Okay. Well, there are three things I look at at
      sentencing. One is whether you’re going to rehabilitate yourself;
      two is how serious the crime is; and three, the protection of the
      public.

             I hope the past is in the past. Your past was as a juvenile,
      the first one I saw was you punch and kick another guy. The next
      one is you assault a juvenile in 2007, and he has a broken eye
      socket.


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            And I would think after that that would be it. Then you had
     the case with your mom, where it’s a burglary, where a
     codefendant has a gun, which is just frightening to think about
     that, that you would put your mom—conspire with people or agree
     with people to do a burglary, and your mom is scared to death.

                                *    *    *

     THE COURT: Okay. So to bring a gun, whether your mom is home
     or not—I’m wrong. She wasn’t there. But still your family that
     you care for [was there]—that’s obvious from your PSI—yes.

                                *    *    *

     THE COURT: Okay. But the next one you have is you have
     possession of instruments of crime from 2010, where that one you
     threw a gun. . . .

                                *    *    *

     THE COURT: Then it gets worse because in 2011 you’re choking—
     is this the mother of your child?

     Defendant: Yes.

     THE COURT: You’re choking her when she’s pregnant. And your
     attorney will tell you I’ve sent people to jail for that alone for
     years.

           Then finally you have the robbery that you did three and a
     half to seven, where again you don’t have a gun but somebody
     else has a gun, which is just if you’re around people that have
     guns, or if you’re ditching a gun, it makes you look like a thug,
     which is what you’ve been up until [a]ge 26.


                               *    *     *

     THE COURT: . . . I could just whack you, but I’m not going to do
     that entirely. I’m going to give you consecutive years. . . .

          The only reason I’m not just simply washing my hands of
     you, [Appellant], based on your prior record is because the
     underlying charge here is you’re stupidly walking around with

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       drugs in your possession. So the two years is the penalty for that,
       but it’s also that you did it while you were on parole for a serious
       case. . . .

             For my dealings with you, which is where we’re going
       forward from here, you have a horrible resume. And you’re saying
       you’re a different guy now. . . . So the point is that you want to
       show that to me. . . .

             You’re a young guy. You’ve done violent things, but you can
       basically have the capacity to change. . . .

(N.T. Sentencing, 3/28/17, at 13-17).

       In its Rule 1925(a) opinion, the trial court further explained that, in

formulating an appropriate sentence for Appellant, it took into consideration

all relevant sentencing criteria, the information contained in the PSI, the

protection of the public, the gravity of the offense, and Appellant’s

rehabilitative needs. (See Trial Ct. Op., at 4-6). Thus, the record reflects

that   the   court   thoroughly   considered    Appellant’s   background,     the

circumstances of his possession offense, and his capacity for change, and

sentenced him accordingly. Because we discern no abuse of discretion in its

imposition of Appellant’s aggregate sentence, his second issue merits no relief.

See Johnson-Daniels, supra at 28. Therefore, we affirm the judgment of

sentence.

       Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/18




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