J-S33029-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                   Appellee              :
                                         :
              v.                         :
                                         :
ROBERT J. McNEILL,                       :
                                         :
                   Appellant             : No. 2044 EDA 2014

              Appeal from the Judgment of Sentence May 30, 2014,
                     Court of Common Pleas, Lehigh County,
               Criminal Division at No(s): CP-39-CR-0003087-2013
                          and CP-39-CR-0004513-2013

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

MEMORANDUM BY DONOHUE, J.:                           FILED JULY 21, 2015

      Appellant, Robert J. McNeill (“McNeill”), appeals from the judgment of

sentence entered on May 30, 2014 in the Court of Common Pleas, Lehigh

County.    For the reasons set forth herein, we vacate the judgment of

sentence and remand the case for further proceedings.

      A brief summary of the relevant facts and procedural history is as

follows.   On February 26, 2012, Chad Pierce (“Pierce”) and his family

returned to their home to discover that someone had broken in and stolen

personal items. The perpetrator left blood throughout the house. The police

collected blood samples and submitted them to the Pennsylvania State Police

laboratory.

      On March 26, 2012, Elsie Pribula (“Pribula”) returned to her home to

discover an individual in her house.    She immediately left and ran to a
J-S33029-15


neighbor’s house. The perpetrator was gone by the time the police arrived,

and had removed several thousand dollars’ worth of jewelry and currency.

The police discovered blood around the windowsill and in the bedroom

dresser drawers, and again collected and submitted samples for analysis.

      On April 16, 2013, police received information from the laboratory that

the blood samples taken from Pierce’s home matched a sample on file that

belonged to McNeill. On April 17, 2013, police obtained a search warrant for

a DNA blood sample or oral buccal swab from McNeill and executed the

search warrant on April 18, 2013. On that date, police obtained two buccal

swabs from McNeill to compare the results directly with the blood samples

police collected from the homes of Pierce and Pribula.       On May 14, 2013,

police obtained the results from the buccal swabs, which indicated a DNA

match to the blood samples recovered at the home of Pribula.               Police

obtained results in August 2013 that McNeill’s DNA also matched the blood

samples recovered at Pierce’s home.

      McNeill was charged with two counts of burglary, 18 Pa.C.S.A. §

3502(a); criminal trespass, 18 Pa.C.S.A. § 3503(a); criminal mischief, 18

Pa.C.S.A. § 3304(a)(5); theft by unlawful taking, 18 Pa.C.S.A. § 3921(a);

and receiving stolen property, 18 Pa.C.S.A. § 3925(a).         On January 13,

2014, McNeill entered a guilty plea. At the sentencing hearing on April 10,

2014, McNeill made an oral request to withdraw his guilty plea, upon which

the trial court deferred ruling to allow McNeill to speak to his counsel and file



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a formal written motion. McNeill thereafter filed a motion to withdraw his

guilty plea on May 1, 2014, which the trial court denied on May 5, 2014. On

May 30, 2014, the trial court sentenced McNeill to twenty-seven months to

ten years of incarceration.

      On June 9, 2014, McNeill filed a post-sentence motion to reconsider

and modify his sentence, which the trial court denied on June 12, 2014. On

July 10, 2014, McNeill filed a timely notice of appeal to this Court, raising the

following two issues for our review, which we have reordered for ease of

disposition:

               1. Whether the [c]ourt erred by denying [McNeill’s]
               motion to withdraw his guilty plea which was filed
               prior to sentencing when [McNeill] proclaimed his
               innocence to the specific factual basis for the
               burglary charge?

               2. Whether the [c]ourt erred in sentencing [McNeill]
               when it incorrectly calculated [] McNeill’s prior record
               score and his sentencing guidelines based upon a
               faulty determination of the effect of a prior out-of-
               state conviction?

McNeill’s Brief at 7.

      For his first issue on appeal, McNeill argues that the trial court erred

by denying his presentence motion to withdraw his guilty plea in connection

with the burglary of Pribula’s home. McNeill’s Brief at 18.

               The standard of review that we employ in challenges
               to a trial court’s decision regarding a presentence
               motion to withdraw a guilty plea is well-settled. “A
               trial court's decision regarding whether to permit a
               guilty plea to be withdrawn should not be upset



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            absent an abuse of discretion. An abuse of discretion
            exists when a defendant shows any ‘fair and just’
            reasons for withdrawing his plea absent ‘substantial
            prejudice’ to the Commonwealth.” In its discretion, a
            trial court may grant a motion for the withdrawal of
            a guilty plea at any time before the imposition of
            sentence. Pa.R.Crim.P. 591(A). “Although there is no
            absolute right to withdraw a guilty plea, properly
            received by the trial court, it is clear that a request
            made before sentencing ... should be liberally
            allowed.” The policy underlying this liberal exercise
            of discretion is well-established: “The trial courts in
            exercising their discretion must recognize that
            ‘before judgment, the courts should show solicitude
            for a defendant who wishes to undo a waiver of all
            constitutional rights that surround the right to trial—
            perhaps the most devastating waiver possible under
            our constitution.’”

Commonwealth v. Elia, 83 A.3d 254, 261-62 (Pa. Super. 2013) (internal

citations omitted).

      In this case, McNeill filed a motion to withdraw his guilty plea with

regard to the Pribula burglary, contending that he was not guilty of a

burglary with a person present. N.T., 5/1/14, at 8. McNeill conceded that

he was guilty of burglary and that his DNA was found in Pribula’s house, but

argued that he was not guilty of burglary with a person present because he

was not present in the house when Pribula or any other person was in the

house. Id. at 8, 17-18.

      The trial court concluded that McNeill’s assertion of innocence was

“disingenuous at best” and “an attempt to circumvent the workings of the

criminal justice system[.]” Trial Court Opinion, 5/5/14, at 5. The trial court




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found that McNeill “without reservation, repeatedly admitted his guilt in the

within case until after he reviewed his Pre-Sentence Investigation Report.”

Id. The trial court further determined that the only reason McNeill sought to

withdraw his guilty plea was because he did not want to go to prison for

eighty-one months. N.T., 5/1/14, at 23. After our review of the record, we

are unable to find an abuse of discretion.

      In Commonwealth v. Forbes, 299 A.2d 268 (Pa. 1973), our

Supreme Court instructed that

                in determining whether to grant a pre-sentence
                motion for withdrawal of a guilty plea, “the test to be
                applied by the trial courts is fairness and justice.” If
                the trial court finds “any fair and just reason”,
                withdrawal of the plea before sentence should be
                freely permitted, unless the prosecution has been
                ‘substantially prejudiced.’

Id. at 271.

      In recent years, this Court has adopted a per se approach to innocence

claims by defendants, holding that “[our] Supreme Court [in Forbes] held

that the mere articulation of innocence was a ‘fair and just’ reason for the

pre-sentence withdrawal of a guilty plea unless the Commonwealth has

demonstrated that it would be substantially prejudiced.”          Commonwealth

v. Katonka, 33 A.3d 44, 49 (Pa. Super. 2011). In so doing, this Court has

limited a trial court’s discretion in granting or denying a presentence motion

for withdrawal of a guilty plea by foreclosing credibility determinations

relative   to    a   defendant’s   assertion   of   innocence.    See      id.   (citing



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Commonwealth v. Randolph, 718 A.2d 1242, 1244 (Pa. 1998) (finding

that our Supreme Court condemned “rendering a credibility determination as

to the defendant’s actual innocence.”)). Specifically, this Court has held that

a trial court may not deny a defendant’s presentence withdrawal based on

the fact that the defendant entered the guilty plea voluntarily, knowingly and

intelligently,   see   Commonwealth     v.   Pardo,   35   A.3d   1222,   1229

(Pa. Super. 2011), or its belief that the withdrawal is being used as a

dilatory tactic, see Commonwealth v. Unangst, 71 A.3d 1017, 1022

(Pa. Super. 2013).

      In its most recent decision on this issue, however, our Supreme Court,

reversed course and held that “[a]s with other such bright-line rules, [] the

principle is subject to the axiom that the holding of a decision is to be

determined according to the facts under consideration.” Commonwealth v.

Carrasquillo, __ A.3d __, 2015 WL 3684430, *8 (Pa. June 15, 2015). In

Carrasquillo, the defendant entered an open guilty plea to sexually

assaulting a sixteen-year-old girl and an eleven-year-old girl. Id. at *1. At

a sentencing hearing that occurred three and a half months later, the

defendant attempted to withdraw his guilty plea after hearing the prosecutor

read into evidence a report for the Sexual Offenders Assessment Board that

concluded that the defendant was a sexually violent predator. Id. The trial

court denied his request to withdraw his guilty plea, finding that his




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assertion of innocence was “implausible, insincere, and ‘nothing more than

an attempt to manipulate the justice system[.]’” Id. at *2-3.

        On appeal, an en banc panel of this Court reversed the trial court’s

denial of the defendant’s request to withdraw his guilty plea, holding that

the trial court abused its discretion.     Id. at *3 (citing Commonwealth v.

Carrasquillo, 78 A.3d 1120, 1131 (Pa. Super. 2013) (en banc)).                 The

majority held that “our law does not (contrary to the Commonwealth’s

suggestion) require some quantum of ‘rational support’ as a prerequisite for

a plea withdrawal[,]” and instead, reinforced the per se approach adopted by

this Court which does not permit credibility determinations regarding the

sincerity of a defendant’s assertion of innocence. Carrasquillo, 78 A.3d at

1126.

        Our   Supreme    Court   granted    the   Commonwealth’s    petition   for

allowance of appeal and reversed this Court’s decision, holding that although

presentence requests to withdraw a guilty plea should be liberally granted,

the trial courts have discretion to deny the request:

              [A] defendant’s innocence claim must be at least
              plausible to demonstrate, in and of itself, a fair and
              just reason for presentence withdrawal of a plea.
              More broadly, the proper inquiry on consideration of
              such a withdrawal motion is whether the accused has
              made some colorable demonstration, under the
              circumstances, such that permitting withdrawal of
              the plea would promote fairness and justice. The
              policy of liberality remains extant but has its limits,




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              consistent with the affordance of a degree of
              discretion to the common pleas courts.[1]

Carrasquillo, 2015 WL 3684430, at *4, *8 (internal citation omitted)

(footnote added).

        Applying the standards set forth in Carrasquillo to the case herein,

we find no abuse of discretion by the trial court in denying McNeill’s motion

to withdraw his guilty plea.     The trial court determined that based on the

circumstances of the case, McNeill’s claim of innocence was implausible and

that he failed to present a fair and just reason for withdrawing his guilty

plea.    Instead, the trial court determined that McNeill, who “repeatedly

admitted his guilt in the within case,” only attempted to withdraw his plea

after learning of the sentence that would be imposed. Trial Court Opinion,

5/5/14, at 5.    Thus, the trial court found his assertion of innocence to be

disingenuous. Id.

        The record reflects that at the time McNeill entered his guilty plea, the

trial court failed to specify which subsection of the burglary statute applied

and to which subsection he was pleading guilty. McNeill, however, accepted

the trial court’s version of the facts and circumstances of each burglary,

including its statements that Pribula “actually came home and entered her


1
   Justice Stevens, in a concurring opinion, wrote separately “to emphasize
[his] disapproval with the Superior Court’s bright-line rule” and stated, “Trial
Courts must be permitted to evaluate the credibility of an accused’s
assertion of innocence, including the evidence of guilt, of delay, and of
ulterior or illicit motive in ruling upon an accused’s presentence motion to
withdraw a guilty plea.” Carrasquillo, 2015 WL 3684430, at *8.


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house. It was dark. She saw a figure in her home. She called out to that

figure, to which he responded.         The figure growled at her.    She fled to a

neighbors[’] house.” N.T., 1/13/14, at 21-22. Moreover, although McNeill

asserted at the hearing on his motion to withdraw his guilty plea that he

“thought that [he] was pleading guilty to a burglary that had nothing to do

with a person present,”        see N.T., 5/1/14, at 6, he stated in his written

motion to withdraw his guilty plea that he informed his counsel that he pled

guilty to the crime of burglary, person present, because he believed that “he

would receive significantly less jail time than had he been convicted after

trial.”    McNeill’s Motion to Withdraw Guilty Plea, at ¶ 8.        McNeill further

asserted in his written motion that he pled guilty “because he believed that

the [c]ourt would not accept a guilty plea without him admitting to the

specific crime alleged, [b]urglary, person present.”       Id. at ¶ 9. Thus, the

record reflects that McNeill understood at the time he entered his plea that

he was pleading guilty to burglary, person present, with respect to the

Pribula burglary.

          “It is well established that our Court will not reverse a trial court’s

credibility determination absent the court’s abuse of discretion as factfinder.”

Commonwealth v. Moser, 921 A.2d 526, 530 (Pa. Super. 2007) (citing

Commonwealth v. O’Bryon, 820 A.2d 1287, 1290 (Pa. Super. 2003) (“[I]t

is   axiomatic      that   appellate   courts   must   defer   to   the   credibility

determinations of the trial court as fact finder, as the trial judge observes



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the witnesses’ demeanor first-hand.”)). The record wholly supports the trial

court’s credibility determination. Accordingly, finding no abuse of discretion

in this instance, we conclude that McNeill is not entitled to relief on his first

issue.

         For his second issue on appeal, McNeill raises a discretionary aspects

of sentencing issue, arguing that the trial court incorrectly calculated his

prior record score and the sentencing guidelines based on an out-of-state

conviction. There is no automatic right to appeal the discretionary aspects

of a sentence. Commonwealth v. Crork, 966 A.2d 585, 590 (Pa. Super.

2009).

              Before we reach the merits of this [issue], we must
              engage in a four part analysis to determine: (1)
              whether the appeal is timely; (2) whether Appellant
              preserved his issue; (3) whether Appellant’s brief
              includes a concise statement of the reasons relied
              upon for allowance of appeal with respect to the
              discretionary aspects of sentence; and (4) whether
              the concise statement raises a substantial question
              that the sentence is appropriate under the
              sentencing code.

Commonwealth v. Clarke, 70 A.3d 1281, 1286 (Pa. Super. 2013) (citing

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa. Super. 2006)).

         In this case, McNeill filed a timely appeal and preserved his issue for

appeal by raising it at the time of sentencing, thereby satisfying the first two

prongs of the analysis. McNeill also satisfied the third prong as he “set forth

in his brief a concise statement of the reasons relied upon for allowance of




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appeal with respect to the discretionary aspects of a sentence.”2         See

Pa.R.A.P. 2119(f). Finally, “[t]his Court has held that improper calculation of

a prior record score based on out-of-state offenses raises a substantial

question.” Commonwealth v. Janda, 14 A.3d 147, 165 (Pa. Super. 2011)

(citing Commonwealth v. Diamond, 945 A.2d 252, 258 (Pa. Super. 2008),

appeal denied, 955 A.2d 356 (Pa. 2008); Commonwealth v. Anderson,

830 A.2d 1013, 1018 (Pa. Super. 2003)). As a result, we now address the

merits of McNeill’s claim.

      We begin with our well-settled standard of review:

            [T]he proper standard of review when considering
            whether       to  affirm   the    sentencing     court’s
            determination is an abuse of discretion. [A]n abuse
            of discretion is more than a mere error of judgment;
            thus, a sentencing court will not have abused its
            discretion unless the record discloses that the
            judgment exercised was manifestly unreasonable, or
            the result of partiality, prejudice, bias or ill-will. In
            more expansive terms, our Court recently offered:
            An abuse of discretion may not be found merely
            because an appellate court might have reached a
            different conclusion, but requires a result of manifest
            unreasonableness, or partiality, prejudice, bias, or
            ill-will, or such lack of support so as to be clearly
            erroneous.

Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012)

(quoting Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007)).



2
   Although McNeill did not label his statement as a Rule 2119(f) statement,
his statement provided reasons in support of allowance of appeal and
immediately preceded his argument on the merits. We therefore conclude
that McNeill substantially complied with Rule 2119(f).


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     At the sentencing hearing, McNeill objected to the calculation of his

prior record score of five based on a 1986 offense in New York, listed as the

criminal sale of marijuana. N.T., 5/30/14, at 6. McNeill asserted that the

Commonwealth did not show by a preponderance of the evidence that the

New York offense should be graded as a felony, and therefore, his prior

record score should be four.       Id. at 7.   On appeal, McNeill argues that

“[t]here simply was no factual support for the [c]ourt’s finding that the New

York conviction was the equivalent of a Pennsylvania felony drug offense.”

McNeill’s Brief at 18. We agree.

     The trial court, in determining the guideline sentence for a criminal

conviction, must establish the defendant’s prior record score.      See 204

Pa.Code § 303.2(a)(2).   The prior record score “is based on the type and

number of prior convictions (§ 303.5) and prior juvenile adjudications (§

303.6).”   204 Pa.Code § 303.4(a).         It is well established that “when

calculating a prior record score based upon a foreign state conviction, a

conviction under federal law or a conviction for an offense under a former

Pennsylvania law, we are required to score such a conviction as we would a

‘current equivalent Pennsylvania offense.’”      Commonwealth v. Bolden,

532 A.2d 1172, 1175 (Pa. Super. 1987); see also 204 Pa. Code § 303.8.

           In assessing the quality of a prior conviction in a
           foreign jurisdiction, we discern from the purpose and
           language of the guidelines that it was the intent of
           the Sentencing Commission as well as the legislature
           that offense equivalency be considered in terms of



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           the nature and definition of the offense in light of the
           record of the foreign conviction. This approach
           requires a sentencing court to carefully review the
           elements of the foreign offense in terms of the
           classification of the conduct proscribed, its definition
           of the offense, and the requirements for culpability.
           Accordingly, the court may want to discern whether
           the crime is malum in se or malum prohibitum, or
           whether the crime is inchoate or specific. If it is a
           specific crime, the court may look to the subject
           matter sought to be protected by the statute, e.g.
           protection of the person or protection of property. It
           will also be necessary to examine the definition of
           the conduct or activity proscribed. In doing so, the
           court should identify the requisite elements of the
           crime – the actus reus and mens rea – which form
           the basis of liability.

           Having identified these elements of the foreign
           offense, the court should next turn its attention to
           the Pennsylvania Crimes Code for the purpose of
           determining the equivalent Pennsylvania offense. An
           equivalent offense is that which is substantially
           identical in nature and definition as the out-of-state
           or federal offense when compared with Pennsylvania
           offense. The record of the foreign conviction will be
           relevant also when it is necessary to grade the
           offense under Pennsylvania law or when there are
           aggravating circumstances.

Bolden, 532 A.2d at 1175-76.

     In this case, no such analysis occurred. The record is devoid of any

evidence concerning the New York conviction of criminal sale of marijuana.

The only evidence concerning the New York conviction is the Lehigh County

Probation Department’s presentence investigation report (“PSI”), which

indicates that McNeill was sentenced to time served for the criminal sale of

marijuana. The PSI contains no information regarding which statute applied,



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the factual circumstances of the charge, or whether the charge constituted a

misdemeanor or a felony.3 Neither the Commonwealth nor McNeill provided

the trial court with this information either.

      Although the Commonwealth and McNeill did not cite to a New York

statute, our independent research reveals that under New York Penal Law,

an individual is guilty of criminal sale of marijuana “when he knowingly and

unlawfully   sells,   without   consideration,   one   or   more   preparations,

compounds, mixtures or substances containing marihuana.” N.Y. Penal Law

§§ 221.35-55 (McKinney 2015).         Notably, New York Penal Law has five

degrees of criminal sale of marijuana, the classification of which depends

upon the amount of marijuana involved and the age of the recipient. See

N.Y. Penal Law §§ 221.35, 221.40, 221.45, 221.50, 221.55 (providing that



3
     McNeill argues that the Lehigh County Probation Department’s PSI
contradicted opposite findings by the Northampton County Probation
Department. McNeill’s Brief at 17. Prior to sentencing, McNeill asserted that
a PSI from Northampton County that was completed for a separate offense
at the time he committed these offenses, calculated his prior record score as
a four. N.T., 5/30/14, at 7. McNeill argued that Lehigh County Probation
Department issued a memo with its PSI that indicated that Northampton
County erroneously graded the New York conviction as a misdemeanor when
it should have been graded as a felony, which is why its PSI calculated his
prior record score as five. Id. at 8. The certified record, however, does not
contain the Northampton County PSI or the memo issued by the Lehigh
County Probation Department. “‘It is black letter law in this jurisdiction that
an appellate court cannot consider anything which is not part of the record in
the case.’ Materials that have only been included in briefs, but are not part
of the record cannot be considered.” Commonwealth v. McBride, 957
A.2d 752, 757-58 (Pa. Super. 2008) (internal citation omitted). Accordingly,
the Northampton County PSI and the memo issued by Lehigh County
Probation Department may not be considered by this Court.


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the sale of an aggregate weight up to twenty-five grams or one cigarette

containing marihuana constitutes a misdemeanor, see id. §§ 221.35,

221.40, whereas the sale of more than twenty-five grams or the sale of

marijuana to a person under the age of eighteen is a felony, see id. §§

221.45, 221.50, 221.55.).

       The Commonwealth contends in its brief that the applicable New York

statute is equivalent to 35 P.S. § 780-113(a)(30) which prohibits, “the

manufacture, delivery, or possession with intent to manufacture or deliver, a

controlled substance by a person not registered under this act[.]”            In

Pennsylvania, marijuana is classified as a Schedule I controlled substance.

35 P.S. § 780-104(1)(iv).       Any person who manufactures, delivers, or

possesses with intent to manufacture or deliver marijuana, is guilty of a

felony.   See 35 P.S. § 780-113(f)(1) (“Any person who violates clause …

(30) of subsection (a) with respect to … A controlled substance or counterfeit

substance classified in Schedule I or II which is a narcotic drug, is guilty of a

felony[.]”).4    Thus, the Commonwealth asserts that “when calculating

[McNeill’s] prior record score, it was proper for the sentencing court to count

[McNeill’s] New York conviction for Criminal Sale of Marijuana as a ‘One

Point Offense.’” Commonwealth’s Brief at 9-10; see 204 Pa.Code § 303.7.

       Conversely, McNeill asserts that whether the New York offense was a

misdemeanor or a felony and the equivalent Pennsylvania offense depends


4
    We note that there is no weight requirement under this section.


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upon the facts of his case. McNeil’s Brief at 16. At the sentencing hearing,

McNeill directed the trial court to section 220.00 of the New York Penal Law,

which provides the definition of the term “sell”.5 N.T., 5/30/14, at 7; N.Y.

Penal Law § 220.00 (McKinney 2015).           Section 220.00 defines, “Sell” as

meaning “to sell, exchange, give or dispose of to another, or to offer or

agree to do the same.”     Id.   McNeill argued that the New York conviction

“equates to the transfer of a small amount of marihuana … a misdemeanor

under 35 P.S. § 780-113(31),” which prohibits: “(i) the possession of a small

amount of marihuana only for personal use; (ii) the possession of a small

amount of marihuana with the intent to distribute it but not to sell it; or (iii)

the distribution of a small amount of marihuana but not for sale.”         N.T.,

5/30/14, at 7; 35 P.S. § 780-113(a)(31).          The statute defines a small

amount of marijuana as thirty grams of marijuana or eight grams of hashish.

See 35 P.S. § 780-113(a)(31).

      This Court has held that “[w]here, as here, the parties dispute the

facts and legal implications of the defendant’s prior convictions, our

legislature has directed the trial court to find facts and render a decision

based on the preponderance of the evidence.” Janda, 14 A.3d at 166. In

this case, the trial court did not engage in any fact finding to support its

decision that McNeill’s prior record score was five. The Commonwealth did


5
  Section 221.00 provides that “the terms in this article shall have the same
meaning ascribed to them in article two hundred twenty of this chapter.”
N.Y. Penal Law § 221.00 (McKinney 2015).


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not introduce any facts to establish whether McNeill sold, exchanged, gave,

or disposed of marijuana in New York, and did not establish the weight of

the marijuana involved. Moreover, at the time of sentencing, the trial court

never indicated what New York statute applied or the Pennsylvania

equivalent statute.       Instead, the trial court simply stated, with no

explanation, “His prior record score is a five.   We are proceeding.”    N.T.,

5/30/14, at 11. The trial court’s 1925(a) opinion is likewise silent on this

issue.

         We find persuasive McNeill’s argument that the facts are necessary in

this instance to establish the equivalent offense in Pennsylvania. As section

220.00 of the New York Penal Law provides, the offense of criminal sale of

marijuana is not limited to an actual sale.     See N.Y. Penal Law § 220.00

(McKinney 2015). Pennsylvania’s statutes are dependent on the defendant’s

conduct, (including whether the defendant sold, possessed, or distributed

the controlled substance, see 35 P.S. § 780-113(a)) and therefore, factual

information about McNeill’s conviction is necessary to establish an equivalent

Pennsylvania offense. Furthermore, depending on the conduct at issue, the

weight of the marijuana may be necessary to establish whether the offense

would constitute a misdemeanor or a felony. See 35 P.S. § 780-113(a)(31).

Thus, the factual circumstances of the New York offense may result in a

finding that McNeill committed a misdemeanor, which would potentially

affect his prior record score. See 204 Pa.Code § 303.7.



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      We therefore conclude that the trial court was without sufficient

information to determine the equivalent Pennsylvania offense. See Janda,

14 A.3d at 166 (holding that in the absence of specific information about the

crime, “the record contains insufficient facts from which the trial court could

determine the equivalent Pennsylvania offense.”).      Accordingly, we must

vacate the judgment of sentence and remand for fact finding to establish the

appropriate prior record score.

      Judgment of sentence vacated.          Case remanded.        Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/21/2015




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