J-A10029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JASON R. BALDWIN

                            Appellant                 No. 1643 EDA 2016


             Appeal from the Judgment of Sentence April 13, 2016
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0009629-2012

BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SOLANO, J.:                        FILED DECEMBER 26, 2017

        Appellant, Jason R. Baldwin, appeals from the judgment of sentence

imposed after he pled guilty to burglary, attempted burglary, and criminal

conspiracy.1 This case returns to us after we granted the Commonwealth’s

motion for reconsideration, as discussed below. We affirm.

        The trial court recited the factual and procedural background of this

case as follows:

              [Appellant] engaged in seven separate residential
        burglaries over the course of several days in July 2012 across
        Montgomery, Berks and Chester Counties. He, along with at
        least one co-conspirator, succeeded in stealing valuables from
        the residences, with the exception of one incident when the
        attempt to burglarize a residence failed.

              [Appellant] was charged with more than 40 counts related
        to the incidents. He ultimately agreed to enter an open guilty
        plea to one count of burglary, one count of criminal conspiracy to
        commit burglary and one count of attempted burglary.            In

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1
    18 Pa. C.S. §§ 3502(a), 901(a), and 903(a)(1), respectively.
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     exchange, the Commonwealth agreed to nol pros the remaining
     charges and to a cap of four to eight years of incarceration.

           At a subsequent sentencing hearing, the Commonwealth
     advised this court of an error in the Pre-Sentence Investigation
     Report related to the calculation of [Appellant’s] prior record
     score. [Appellant] did not object to the recalculation of the
     standard-ranges of 24 to 30 months in prison for the burglary
     offense and 21 to 27 months in prison each for the attempted
     burglary and conspiracy offenses.       The Commonwealth also
     informed this court, without objection, that the burglary and
     attempted burglary convictions did not merge for purposes of
     sentencing because the offenses stemmed from different
     residences. Finally, the Commonwealth and [Appellant] agreed
     to the amount of restitution for the seven burglaries.

           This court sentenced [Appellant] on April 13, 2016, to two
     to four years in prison for the burglary conviction and a
     consecutive term of two to four years in prison for the attempted
     burglary conviction. [Appellant] received a sentence of 10 years
     of consecutive probation for the conspiracy conviction. This
     court also signed the agreed-upon restitution sheets submitted
     by the Commonwealth.

           [Appellant] filed a pro se “Motion for Reconsideration” on
     April 22, 2016, seeking to have his sentences run concurrently.
     This court denied the motion in an Order docketed on May 9,
     2016.

Trial Court Opinion, 8/15/16, at 1-2 (citations to notes of testimony

omitted). Appellant filed this timely appeal. He presented three issues for

our review:

     1. Did the [trial court] err and/or abuse his discretion in failing
        to merge all appropriate charges?

     2. Did the [trial court] err and/or abuse his discretion by
        imposing a sentence without using the correct prior record
        score?

     3. Did the [trial court] err and/or abuse his discretion by failing
        to order the correct amount of restitution?


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Appellant’s Brief at 2-3.

      On October 24, 2017, we affirmed the judgment of sentence with

regard to Appellant’s first and second issues.     However, with respect to

Appellant’s third issue, we concluded that the record before us did not

support the imposition of restitution.       We noted that “there was no

discussion of restitution at Appellant’s guilty plea hearing,” and, although

when sentencing Appellant the court referred to “stipulated restitution

sheets,” no such restitution sheets were in the record.      Accordingly, we

vacated the restitution portion of Appellant’s sentence and remanded for

further proceedings to ensure the proper imposition of restitution. We also

stated that at those proceedings, the Commonwealth could introduce into

the record the “restitution sheets” that it contended were used at Appellant’s

sentencing. See Commonwealth v. Baldwin, No. 1634 EDA 2016, slip op.

at 10-12 (Pa. Super., Oct. 24, 2017).

      On   October    27,   2017,   the   Commonwealth    applied   for   panel

reconsideration and attached copies of the trial court’s restitution orders to

its application.   On November 29, 2017, this Court entered the following

order:

      AND NOW, this 29th day of November, 2017, upon consideration
      of the Commonwealth’s Application for Panel Reconsideration,
      and answer thereto, we grant the Commonwealth’s application
      conditioned upon the Commonwealth arranging to have the trial
      court transmit, within ten days of the date of this order, a
      supplemental certified record containing all documents missing
      from the certified record that was previously transmitted to this
      Court. The Commonwealth’s application included what purports


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        to be certified copies of the court’s restitution orders. Those
        documents were not part of the record transmitted to this Court.

As a result of our decision, our October 24, 2017 decision was vacated. On

December 6, 2017, the Montgomery County Clerk of Courts filed a

supplemental record with this Court that included certified copies of the

restitution orders. We may now proceed to address Appellant’s issues.

                                         Merger

        In his first issue, Appellant argues that the court erred by failing to

merge his sentences for conspiracy to commit burglary and attempted

burglary.2 Appellant’s Brief at 5. Appellant cites 18 Pa. C.S. § 906, which

provides:

        A person may not be convicted of more than one of the inchoate
        crimes of criminal attempt, criminal solicitation or criminal
        conspiracy for conduct designed to commit or to culminate in the
        commission of the same crime.

18 Pa. C.S. § 906 (emphasis added).               Appellant acknowledges that he

committed multiple crimes, stating, “there were seven burglaries and one

attempted burglary, all of which involved a coconspirator.” Appellant’s Brief

at 9.    Appellant argues that he was wrongly sentenced “to two inchoate

crimes” because “the conduct was designed to commit or to culminate in the

commission of the same crime, namely burglary, [and] the sentences




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2
  A claim that crimes should have merged for sentencing purposes raises a
challenge to the legality of the sentence, which cannot be waived.
Commonwealth v. Williams, 980 A.2d 667, 672 (Pa. Super. 2009),
appeal denied, 990 A.2d 730 (Pa. 2010).

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imposed on the attempted burglary and conspiracy conviction must merge

for sentencing purposes.” Id. at 5, 9. We disagree.

       In Commonwealth v. Gallagher, 491 A.2d 196 (Pa. Super. 1985),

we explained:

             A defendant may not be convicted of more than one
       inchoate offense designed to commit or to culminate in the
       commission of the same crime. 18 Pa.C.S. § 906. . . .
       [T]he purpose of Section 906 [i]s to eliminate the conviction for
       more than one offense in the preparation to commit the
       objective, that is, where the offenses were designed to
       culminate in the commission of only one crime.

491 A.2d at 198 (bolded emphasis added, italicized emphasis in original,

citations and quotation marks omitted). It is well-settled that convictions do

not 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.      See 42 Pa. C.S. § 9765;

Commonwealth v. Raven, 97 A.3d 1244, 1249 (Pa. Super. 2014), appeal

denied, 105 A.3d 736 (Pa. 2014). For example, conspiracy and attempted

burglary were found to merge in Commonwealth v. Brown, 486 A.2d 441,

443-445 (Pa. Super. 1985), where the appellant participated in a single

scheme to burglarize a single house.

       Here, although Appellant’s conduct related to commission of the same

type of crime (burglary), he participated in seven burglaries of seven

different houses and one additional attempted burglary of an eighth house.3

____________________________________________
3
  Appellant was sentenced to 2-4 years’ incarceration under Count 1 for the
crime of burglary and 2-4 years’ incarceration under Count 8 for the crime of
(Footnote Continued Next Page)
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He pled guilty to conspiracy and was sentenced to 10 years’ probation under

Count 9 only with respect to his commission of the seven successfully

completed burglaries.4 The Criminal Information as to Count 9 states that

Appellant, “with the intent of promoting or facilitating the commission of the

crime(s) of BURGLARY[,] unlawfully and feloniously agreed with GREGORY

LEE EAGLE that they or one of more of them would engage in conduct which

would constitute such crime(s), and did an overt act in furtherance thereof.”

Criminal Information, 2/1/13, at 2.              Count 9 thus addressed Appellant’s

conspiracy to commit the completed “crime(s) of BURGLARY,” and not the

different crime of attempted burglary that was separately charged in Count 8

of the Criminal Information. Appellant entered his guilty plea as follows:

                       _______________________
(Footnote Continued)
attempted burglary. N.T., 4/13/16, at 22-23. At the guilty plea hearing,
Appellant expressly acknowledged that with regard to Count 8, he
additionally “attempted without success to break into” another property “to
commit a burglary.” N.T., 7/23/15, at 3, 7, 9. The crimes for which
Appellant was sentenced under Counts 1 and 8 therefore clearly were
different and do not merge. We do not understand Appellant to argue
otherwise.

4
  Appellant does not contend that his sentence for the conspiracy conviction
under Count 9 merges with the sentence for the completed burglary that he
conspired to commit and for which he was sentenced under Count 1. It is
well-settled that “the crime of conspiracy does not merge with the
substantive offense that is the subject of the conspiracy.” Commonwealth
v. Jacquez, 113 A.3d 834, 838 (Pa. Super. 2015). As our Supreme Court
has stated, “the law has always considered criminal conspiracy and the
completed substantive offense to be separate crimes.” Commonwealth v.
Miller, 364 A.2d 886, 887 n.5 (Pa. 1976) (referencing the rationale of the
United States Supreme Court in Iannelli v. United States, 420 U.S. 770,
778 (1975), that “collective criminal agreement — partnership in crime —
presents a greater potential threat to the public than individual delicts” and
“the danger which a conspiracy generates is not confined to the substantive
offense which is the immediate aim of the enterprise”).

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J-A10029-17


     [COMMONWEALTH]: [Appellant], you understand by pleading
     guilty you are admitting certain things about your case are true?

     [APPELLANT]:           Yes.

     [COMMONWEALTH]: Specifically, sir, by pleading guilty you
     are admitting that between July 13th and July 16th of 2012 across
     Montgomery, Berks and Chester County you engaged, sir, in
     seven separate burglaries, which you broke into residential
     properties with the intent and actually successfully intended to
     steal various valuables from inside?

     [APPELLANT]:           Yes.

     [COMMONWEALTH]: As well as conspiring with at least one
     other person to effectuate these crimes?

     [APPELLANT]:           Yes.

N.T., 7/23/15, at 9 (emphasis added).    Accordingly, Appellant’s argument

that his conviction of conspiracy should have merged with his conviction of

attempted burglary fails because Appellant pled guilty to conspiracy to

commit the completed crime of burglary with respect to seven houses, which

were separate from an eighth house which Appellant unsuccessfully

attempted to burglarize.

     Our Supreme Court, in recently holding that Section 906 does not bar

multiple convictions for the same inchoate crime, noted that “Pennsylvania

Courts have applied this provision in situations where a defendant commits

two or three inchoate offenses while preparing to commit a single

underlying crime.” Commonwealth v. Kingston, 143 A.3d 917, 923 (Pa.

2016) (emphasis added). In dicta, the Court stated:

     It is not difficult to imagine why the General Assembly would
     proscribe multiple convictions for distinct inchoate offenses in

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J-A10029-17


       circumstances where a defendant’s conduct was designed to
       culminate in the commission of a single underlying crime.

Id. at 925 (emphasis added). In the present case, Appellant admitted to,

and was convicted of conspiracy to commit, burglary relating to the seven

successful and completed burglaries, and also admitted to attempting to

burglarize an eighth house. Accordingly, Appellant’s merger argument lacks

merit.

                                 Prior Record Score

       Appellant’s next issue, concerning the court’s calculation of his prior

record score, challenges the discretionary aspects of Appellant’s sentence.5

The entry of an open guilty plea does not preclude a petition for allowance of

an appeal to this Court of the discretionary aspects of a sentence

subsequently imposed. Commonwealth v. Luketic, 162 A.3d 1149, 1159

(Pa. Super. 2017), citing Commonwealth v. Dalberto, 648 A.2d 16, 20

(Pa. Super. 1994), appeal denied, 540 Pa. 594, 655 A.2d 983, cert.

denied, 516 U.S. 818, 116 S.Ct. 75, 133 L.Ed.2d 34 (1995).          However,

there is no automatic right to appeal such an issue, and appellate review

depends on whether the appellant satisfies the requirements for a petition

by allowance.       Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa.

Super. 2014) (citation omitted), appeal denied, 95 A.3d 275 (Pa. 2014);
____________________________________________
5
   Challenges concerning a prior record score calculation implicate the
discretionary aspects of sentencing. See Commonwealth v. Sanchez, 848
A.2d 977, 986 (Pa. Super. 2004) (holding that a miscalculation of the prior
record score “constitutes a challenge to the discretionary aspects of [a]
sentence”); see also Commonwealth v. O'Bidos, 849 A.2d 243, 253 (Pa.
Super. 2004) (same), appeal denied, 860 A.2d 123 (Pa. 2004).

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Commonwealth v. Haynes, 125 A.3d 800, 806–07 (Pa. Super. 2015),

appeal denied, 140 A.3d 12 (Pa. 2016). We will exercise our discretion to

consider such a petition only if (1) the appellant has filed a timely notice of

appeal; (2) he has preserved the sentencing issue at the time of sentencing

or in a motion to reconsider and modify his sentence; (3) he presents the

issue in a properly framed statement in his brief under Rule 2119(f) of the

Rules of Appellate Procedure pursuant to Commonwealth v. Tuladziecki,

522 A.2d 17 (Pa. 1987); and (4) in the words of Section 9781(b), “it

appears that there is a substantial question that the sentence imposed is not

appropriate under this chapter.”        See Haynes, 125 A.3d at 807;

Commonwealth v. Zelinski, 573 A.2d 569, 574-75 (Pa. Super. 1990),

appeal denied, 593 A.2d 419 (Pa. 1990).

      Instantly, Appellant filed a timely notice of appeal and included a

proper Rule 2119(f) statement in his appellate brief. Appellant’s Brief at 6.

In addition, he has presented a substantial question.     Commonwealth v.

Janda, 14 A.3d 147, 165 (Pa. Super. 2011) (improper calculation of prior

record score raises substantial question).    Nonetheless, in his argument,

Appellant simply and generally avers – without more – that the court applied

the wrong prior record score because “the score before sentencing was a ‘3’

and then it was changed to a ‘5.’” Appellant’s Brief at 11. Appellant does

not explain why the prior record score of 5 was incorrect.       See id.   His

argument therefore fails to provide us with a sufficient explanation to enable

full appellate review.   See Commonwealth v. Cornelius, 856 A.2d 62, 77

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(Pa. Super. 2004) (declining to review claim where brief contains limited

explanation and development of argument), appeal denied, 895 A.2d 548

(Pa. 2006).

      Our review of the record at sentencing reveals the following:

      THE COURT:               All right.     Do [counsel]      have      any
                               additions or corrections?

      [COMMONWEALTH]:          I do have a correction . . .

      THE COURT:               Yes, is there another mistake? . . .

      [COMMONWEALTH]:          I believe that his prior record score is a
                               5. They had it listed as a 3.

N.T., 4/13/16, at 3. Neither Appellant nor his counsel objected or otherwise

responded to this. Nor did they object when subsequently, in a discussion of

standard range sentences, the Commonwealth reiterated, “again, . . . prior

record score of 5, . . .” Id. at 5. Although Appellant filed a post-sentence

motion claiming that his sentence was excessive, that motion did not

specifically discuss any issue relating to his prior record score.         Because

Appellant did not preserve this issue in the trial court, it is waived.

      Accordingly, on this record, we find no merit to Appellant’s second

issue concerning the calculation of his prior record score.

                                  Restitution

      In his third issue, Appellant challenges the court’s imposition of

restitution, and asserts that it “was an illegal sentence” because “the record

fails to contain the factual basis for the amount of restitution ordered.”

Appellant’s Brief at 14. Appellant states that his issue is “not only . . . the

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amount of restitution, but also the authority of the court to order

restitution.” Id. at 12. Appellant contends “that the lower court imposed an

illegal sentence when it ordered him to pay restitution to the victim in excess

of that which is supported by the record and in excess of what the victim’s

[sic] lost.” Appellant’s Brief at 14.

       Both the trial court and the Commonwealth reject Appellant’s

argument on the basis that Appellant stipulated to the amount of restitution

at the sentencing hearing. See Trial Ct. Op. at 5; Commonwealth Brief at 8.

       This Court has explained:

       [i]n the context of criminal proceedings, an order of restitution is
       not simply an award of damages, but, rather, a sentence. An
       appeal from an order of restitution based upon a claim that a
       restitution order is unsupported by the record challenges the
       legality, rather than the discretionary aspects, of sentencing.
       The determination as to whether the trial court imposed an
       illegal sentence is a question of law; our standard of review in
       cases dealing with questions of law is plenary.

       Restitution is a creature of statute and, without express
       legislative direction, a court is powerless to direct a defendant to
       make restitution as part of his sentence. Where that statutory
       authority exists, however, the imposition of restitution is vested
       within the sound discretion of the sentencing judge.

       In the context of a criminal case, restitution may be imposed
       either as a direct sentence, 18 Pa.C.S.A. § 1106(a),[6] or as a
       condition of probation under 42 Pa.C.S.A. § 9754, . . . . When
       imposed as a sentence, the injury to property or person for
       which restitution is ordered must directly result from the crime.
____________________________________________
6
  That statute provides: “Upon conviction for any crime wherein property has
been stolen, converted or otherwise unlawfully obtained, or its value
substantially decreased as a direct result of the crime, or wherein the victim
suffered personal injury directly resulting from the crime, the offender shall
be sentenced to make restitution in addition to the punishment prescribed
therefor.” 18 Pa.C.S.A. § 1106(a).

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J-A10029-17



Commonwealth v. Kinnan, 71 A.3d 983, 986-87 (Pa. Super. 2013)

(citations omitted, some formatting altered).      The Commonwealth must

prove the amount of restitution to be ordered:

     It is the Commonwealth’s burden of proving its entitlement to
     restitution. Commonwealth v. Boone, 862 A.2d 639, 643 (Pa.
     Super. 2004) (stating that the amount of restitution must be
     supported by the record).         When fashioning an order of
     restitution, the lower court must ensure that the record contains
     the factual basis for the appropriate amount of restitution. The
     dollar value of the injury suffered by the victim as a result of the
     crime assists the court in calculating the appropriate amount of
     restitution. The amount of the restitution award may not be
     excessive or speculative. It is well-settled that “[a]lthough it is
     mandatory under section 1106(c) to award full restitution, it is
     still necessary that the amount of the ‘full restitution’ be
     determined under the adversarial system with considerations of
     due process.” Commonwealth v. Ortiz, 854 A.2d 1280, 1282
     (Pa. Super. 2004).

Commonwealth v. Atanasio, 997 A.2d 1181, 1183 (Pa. Super. 2010)

(some citations omitted).

     Here, the record, as supplemented, demonstrates that Appellant

stipulated to the amount of restitution.     At the time of sentencing, the

following occurred:

     [COMMONWEALTH]:               Judge, at the time of sentencing,
     he agreed that he would stipulate to the restitution for the seven
     burglaries he is alleged to have committed.           And I have
     submitted restitution sheets to that effect for your signature and
     I have reviewed them with [Appellant’s counsel].

     THE COURT:                    Do you agree with that, [counsel]?

     [APPELLANT’S COUNSEL]:        That is correct, Your Honor.




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N.T., 4/13/16, at 6. The court then stated, “[Appellant] is to pay the cost of

prosecution and restitution as indicated on the attached stipulated restitution

sheets.” Id. at 22. The restitution sheets are now included in the record.

      The Supreme Court has instructed:

      A stipulation is a declaration that the fact agreed upon is proven.
      A valid stipulation must be enforced according to its terms.
      Parties may by stipulation resolve questions of fact or limit the
      issues, and, if the stipulations do not affect the jurisdiction of the
      court or the due order of the business and convenience of the
      court they become the law of the case.

Commonwealth v. Rizzuto, 777 A.2d 1069, 1088 (Pa. 2001) (internal

citations omitted, some formatting altered), abrogated on other grounds,

Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003). By stipulating to

the amount of restitution, Appellant relieved the Commonwealth of its

burden of proving the amount.       See Rizzuto, 777 A.2d at 1088.             Thus,

Appellant’s argument that the amount of restitution is unsupported by the

record is meritless.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/26/2017




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