J-S25011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT
                                                              OF PENNSYLVANIA
                             Appellee

                        v.

    CARL E. JOHNSTON, JR.

                             Appellant                       No. 1893 MDA 2018


        Appeal from the Judgment of Sentence Entered January 8, 2018
               In the Court of Common Pleas of Bradford County
               Criminal Division at No: CP-08-CR-0000315-2015


BEFORE: STABILE, MURRAY, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                            FILED NOVEMBER 12, 2019

        Appellant, Carl E. Johnston, Jr., appeals from the judgment of sentence

imposing an aggregate 72 to 181 months of incarceration for operating a

methamphetamine         laboratory,      possession   of    liquefied   ammonia      gas,

possession of a prohibited offensive weapon, and use or possession of an

electronic incapacitation device.1 We affirm.

        Appellant pled guilty to the aforementioned offenses on January 19,

2016, and on May 17, 2016, the trial court sentenced him to 24 months of

state    intermediate    punishment       (“SIP”).    On     October    2,   2017,   the

Commonwealth charged Appellant with numerous assault and drug offenses.2

____________________________________________


1    35 P.S. §§ 780-113.1 and 113.4; 18 Pa.C.S.A. §§ 908 and 908.1.

2 The appeal from the resulting convictions is before this Court at docket
number 1651 MDA 2018.
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As a result, the trial court, at the conclusion of a January 8, 2018 hearing,

revoked Appellant’s SIP sentence and imposed sentence as set forth above.

This timely appeal followed.

      Appellant argues that his sentence is illegal because his convictions at

§§ 908 and 908.1 of the Crimes Code merge for sentencing purposes. He also

argues that the trial court lacked jurisdiction to revoke his SIP sentence on

January 8, 2018 because, as of that date, the court had yet to receive a letter

from the Pennsylvania Department of Corrections (“DOC”) confirming

Appellant’s expulsion from the SIP program.           We will consider these

arguments in turn.

      The Pennsylvania Judicial Code governs our merger analysis:

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

42 Pa.C.S.A. § 9765.       Merger implicates the legality of a sentence.

Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa. Super. 2013).

Accordingly, our standard of review is de novo and our scope of review is

plenary. Commonwealth v. Calhoun, 52 A.3d 281, 284 (Pa. Super. 2012),

appeal denied, 67 A.3d 793 (Pa. 2013).         Section 9765 “prohibits merger

unless two distinct facts are 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




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the statutory elements of the other.”       Tanner, 61 A.3d at 1046 (quoting

Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009)).

      Appellant’s brief fails to explain the criminal act from which his

conviction arose, in violation of Pa.R.A.P. 2119(c) (“If reference is made to

the pleadings, evidence, charge, opinion or order, or any other matter

appearing in the record, the argument must set forth, in immediate connection

therewith, or in a footnote thereto, a reference to the place in the record where

the matter referred to appears[.]”). Regardless, a review of the record reveals

that Appellant’s convictions under §§ 908 and 908.1 arose from the

possession of a device that appeared to be a flashlight but operated as a “stun

gun.” N.T. Suppression, 7/8/15, at 10. It was operational, it is a prohibited

offensive weapon in Pennsylvania, and Appellant was forbidden to possess any

variety of electronic incapacitation device because of prior convictions. Id. at

11. Thus, the record demonstrates that Appellant’s convictions under §§ 908

and 908.1 arose from a single criminal act.

      Next, we consider the statutory elements of each offense. Section 908,

titled “Prohibited offensive weapons,” renders unlawful the mere possession

of any “stun gun, stun baton, taser or other electronic or electric weapon or

other implement for the infliction of serious bodily injury which serves no

common lawful purpose.” 18 Pa.C.S.A. § 908(c).

      Section 908.1, titled “Use or possession of electric or electronic

incapacitation device,” prohibits the use of an electronic incapacitation device


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for an unlawful purpose and/or the possession of such a device with the intent

to use it for an unlawful purpose. 18 Pa.C.S.A. § 908.1(a). Section 908.1(d)

provides the operative definition:

             As used in this section, the term “electric or electronic
      incapacitation device” means a portable device which is designed
      or intended by the manufacturer to be used, offensively or
      defensively, to temporarily immobilize or incapacitate persons by
      means of electric pulse or current, including devices operating by
      means of carbon dioxide propellant. The term does not include
      cattle prods, electric fences or other electric devices when used in
      agricultural, animal husbandry or food production activities.

18 Pa.C.S.A. § 908.1(f) (emphasis added). Section 908.1(c) provides that

persons prohibited from firearm possession under 18 Pa.C.S.A. § 6105 are

also prohibited from possession of an electronic incapacitation device.       18

Pa.C.S.A. § 908.1(c). Appellant pled guilty to a violation of § 908.1(c) in this

case, based on his prior criminal record.

      We conclude that Appellant’s merger argument fails because each

statute contains an element the other does not. To obtain a conviction under

§ 908, the Commonwealth needed to prove that Appellant was in possession

of a stun gun, electronic weapon, or other implement for the infliction of

serious bodily injury which serves no common lawful purpose. 18 Pa.C.S.A.

§ 908(c). This definitional element is not present in § 908.1, inasmuch as the

two statutes contain distinct definitions of the devices they govern. Section

908 prohibits mere possession of defined offensive weapons, whereas § 908.1

governs defined devices whose possession and use is lawful in some

circumstances.      Thus,   to   convict    Appellant   under   § 908.1(c),   the

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Commonwealth needed to prove he possessed a defined device while he was

prohibited from firearm possession under § 6105. The definitional element of

subsection (f) and the prohibition under subsection (c) under § 908.1 are

absent from § 908.       Appellant’s convictions therefore do not merge for

sentencing purposes.

        Appellant, in a short three-paragraph argument, claims that § 908 is a

lesser-included offense of § 908.1 in this case because the operative element

of § 908—possession of a stun gun—is subsumed with his conviction under

§ 908.1—possession of a stun gun by a prohibited person. Appellant’s Brief

at 8.    This argument simply ignores the distinct definitions of the devices

governed by §§ 908 and 908.1.         Furthermore, in pleading guilty to both

offenses, Appellant admitted that his device met the definition of an electronic

weapon set forth in §§ 908(c) and the definition of an electric or electronic

incapacitation device set forth in § 908.1(f). The overlap (or perhaps lack

thereof) between those two subsections, as applied to electronic weapons or

electronic incapacitation devices, is an issue Appellant chose not to litigate in

this case.

        Next, Appellant argues the trial court lacked jurisdiction to revoke his

SIP sentence because DOC had not notified the court of Appellant’s expulsion

therefrom. Pursuant to 61 Pa.C.S.A. § 4105, the DOC administers SIP, and

the DOC is responsible for determining whether to expel a participant.

        (a) Establishment.--The department shall establish and
        administer a drug offender treatment program as a State

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     intermediate punishment. The program shall be designed to
     address the individually assessed drug and alcohol abuse and
     addiction needs of a participant and shall address other issues
     essential to the participant’s successful reintegration into the
     community, including, but not limited to, educational and
     employment issues.

                                   [***]

     (f) Expulsion from program.--

           (1) A participant may be expelled from the drug offender
     treatment program at any time in accordance with guidelines
     established by the department, including failure to comply with
     administrative or disciplinary procedures or requirements set forth
     by the department.

           (2) The department shall promptly notify the court, the
     defendant, the attorney for the Commonwealth and the
     commission of the expulsion of a participant from the drug
     offender treatment program and the reason for such expulsion.
     The participant shall be housed in a State correctional institution
     or county jail pending action by the court.

            (3) The court shall schedule a prompt State intermediate
     punishment revocation hearing pursuant to 42 Pa.C.S. § 9774
     (relating to revocation of State intermediate punishment
     sentence).

61 Pa.C.S.A. § 4105(a), (f).    Under 61 Pa.C.S.A. § 4106, the DOC has

authority to pass guidelines to regulate the SIP program, including expulsion

therefrom. 61 Pa.C.S.A. § 4106.

     As per § 4105(f)(3), the Judicial Code governs revocation of SIP:

     § 9774. Revocation of State intermediate punishment
     sentence

     (a) General rule.--The court may at any time terminate a
     sentence of State intermediate punishment pursuant to 61 Pa.C.S.
     Ch. 41 (relating to State intermediate punishment).




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      (b) Revocation.--The court shall revoke a sentence of State
      intermediate punishment if after a hearing it determines that the
      participant was expelled from or failed to complete the program.

      (c) Proceedings upon revocation.--Upon revocation of a State
      intermediate punishment sentence, the sentencing alternatives
      available to the court shall be the same as the alternatives
      available at the time of initial sentencing. The attorney for the
      Commonwealth must file notice, at any time prior to resentencing,
      of the Commonwealth’s intention to proceed under an applicable
      provision of law requiring a mandatory minimum sentence.

42 Pa.C.S.A. § 9774.

      This Court addressed the interplay between § 4105 and § 9774 in

Commonwealth v. Schultz, 116 A.3d 1116 (Pa. Super. 2015). We held that

§ 4105(f)(1) “vests solely in the DOC the decision of ‘expel[ling a participant]

from the drug offender treatment program at any time in accordance with

guidelines established by the department.’” Id. at 1121 (brackets added in

Schultz). Section 4105(f)(2) requires the DOC to provide the trial court with

prompt notification of an expulsion. Id. Section 4105(f)(3), in turn, requires

the trial court to schedule a prompt SIP revocation hearing. Id. The trial

court must revoke the SIP sentence in accord with § 9774(b) if, after a

hearing, it determines that the DOC expelled the participant.

            The plain text of Section 9774(b), coupled with the General
      Assembly’s use of past tense, reveal that when addressing a
      revocation under Section 9774(b) the trial court is limited to the
      question of whether the DOC expelled the defendant from the
      program, or whether the defendant failed to complete the same.
      The trial court is not required, or even legally permitted, to act in
      an appellate capacity and decide for itself de novo whether
      Appellant actually violated the terms of the SIP program. Had the
      General Assembly wished for the trial court to conduct such an
      inquiry, it would have used different language in the text of


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      Section 9774(b), directing or authorizing it to do so. Conversely,
      Section 9774(b) in its present form only requires the
      Commonwealth to prove the fact of expulsion or non-completion.
      Once the trial court finds this fact, it is required to revoke under
      Section 9774(b).

Id.

      In Schultz, the defendant argued that the trial court erred in admitting

the testimony of a DOC witness, inasmuch as the merits of the expulsion

decision were not properly before the trial court. As set forth above, we held

that the trial court’s duty and authority under § 9774(b) is limited to finding

whether the DOC expelled the participant.       But because defense counsel

conceded at the revocation hearing that his client had been expelled, we

concluded that any error in the admission of testimony from the DOC witness

was harmless. Id. at 1122.

      Instantly, Appellant claims the trial court lacked jurisdiction to revoke

Appellant’s SIP sentence because Appellant’s expulsion had not occurred by

the date of the revocation hearing.      Appellant claims the trial court, in

conducting a revocation hearing pursuant to § 9774(b) without official

notification of expulsion from the DOC, overstepped the bounds of its authority

as outlined in Schultz.

      The revocation transcript reflects the following:

      THE COURT: So we have a letter that [Appellant] was expelled
           from the [SIP] program. Is that correct, the letter from the
           state?

      [THE PROSECUTOR]: I believe he’s been expelled, I don’t, I
           believe the court has to resentence.


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       THE COURT: Right, that’s what I am saying; do we have the letter
            that he is expelled? Like, this isn’t a hearing; he’s already
            been expelled from [SIP].

       [DEFENSE COUNSEL]: Understood, I don’t have a copy of the
            letter regarding that. I wasn’t his counsel at that point.

       THE COURT:         Well we’ve scheduled it, I am sure that it’s been
            done.

       [DEFENSE COUNSEL]: Well actually, consider this the letter then
            Your Honor. I have a copy of one dated October 4, 2017.

       [THE PROSECUTOR]: No, she has a separate petition.

       [DEFENSE COUNSEL]: Okay.

       THE COURT: I guess, I’m just a little confused procedurally,
            because usually we get a letter that they’re expelled, we
            schedule for resentencing and then I see there’s a petition
            for revocation of [SIP]. But, that part I guess we don’t need,
            it’s just the revocation of probation.[3]

       [DEFENSE COUNSEL]: I think I can clear that up then Your Honor,
            we have a situation where the defense will stipulate that
            based on discovery received for the new case, there’s a
            probable cause to believe he’s committed some of the
            offenses. And with that, I believe that the probation
            consecutive to your probation and if an order is necessary
            that the [SIP] is revoked and then we need to schedule
            sentencing, I think that is what we need to do.

       THE COURT: Okay.

       [DEFENSE COUNSEL]: On case number 315 of 2015 [the instant
            matter].

       THE COURT: Right, and usually what we do, is we do resentencing
            right now at the time of revocation. So we will do sentencing
            today.


____________________________________________


3The hearing also addressed revocation of a probation sentence from another
matter.

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      [DEFENSE COUNSEL]: Okay.

      THE COURT: Okay.

      [DEFENSE COUNSEL]: Okay.

N.T. Revocation Hearing, 1/8/18, at 2-3.

      In summary, the trial court did not have the DOC’s expulsion letter at

the SIP revocation hearing. The DOC issued that letter several weeks later,

on February 1, 2018. We disagree, however, with Appellant’s assertion that

the trial court violated our directive in Shultz that the court lacks authority to

determine whether expulsion is appropriate.        The portion of the hearing

transcript quoted above reflects that defense counsel did not dispute that

Appellant deserved expulsion, and counsel went so far as to offer a document,

dated October 4, 2017, that he believed would suffice as notice of Appellant’s

expulsion.   Defense counsel also consented to the trial court’s decision to

proceed with resentencing.

      In Schultz, we found no reversible trial court error where defense

counsel effectively conceded that the DOC expelled the defendant from SIP:

            I don’t have any objection, I suppose, simply because the
      practical reality here is … [t]he [SIP] Program has evidently told
      him he’s not welcome back in it, so he’s sort of in a state of
      limbo right now. I don’t know what could conceivably happen if
      Your Honor didn’t do something here today, because the [SIP]
      program won’t take him in[.]

Schultz, 116 A.3d at 1122 (emphasis and brackets added in Schultz). Thus,

in Schultz, defense counsel did not object to his client’s resentencing. The

same is true here. And while defense counsel in the instant case did not go


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so far as to say the DOC excluded Appellant, he clearly—and correctly—

regarded expulsion as a foregone conclusion.

       Under these circumstances, we discern no reversible error in revoking

Appellant’s SIP sentence and resentencing him. Appellant cites no law for the

proposition that the trial court lacked subject matter jurisdiction to revoke

Appellant’s SIP sentence until it had an official expulsion notification from the

DOC.    The result in Schultz appears to be in tension with Appellant’s

argument, given that the outcome of that appeal turned on defense counsel’s

concession, and not on the presence in the record of any document from DOC.

Furthermore, a remand for a new revocation hearing in this case seemingly

would serve no purpose—and would waste judicial resources—given that the

DOC issued its expulsion letter shortly after Appellant’s revocation hearing.

       For all of the foregoing reasons, we reject Appellant’s arguments and

affirm the judgment of sentence.

       Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2019


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