J-A27028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

DANIEL RICHARD HORNING,

                            Appellant               No. 166 WDA 2015


          Appeal from the Judgment of Sentence of October 1, 2014
             In the Court of Common Pleas of Somerset County
            Criminal Division at No(s): CP-56-CR-0000530-2013


BEFORE: BOWES, OLSON & STABILE, JJ.

MEMORANDUM BY OLSON, J.:                       FILED DECEMBER 30, 2015

       Appellant, Daniel Richard Horning, appeals from the judgment of

sentence following his jury trial convictions for possession with intent to

deliver narcotics (PWID), knowingly or intentionally possessing a controlled

or counterfeit substance by an unregistered person, possession of drug

paraphernalia, and conspiracy.1 Upon careful review, we affirm.

       We briefly summarize the facts and procedural history of this case as

follows. On June 26, 2012, the Somerset County Drug Task force arrested

Appellant after utilizing a confidential informant to purchase heroin from him

and a co-defendant. On August 6, 2014, a jury convicted Appellant of the

____________________________________________


1
  35 P.S. §§ 780-113(a)(30), 780-113(a)(16), 780-113(a)(32), and 18
Pa.C.S.A. § 903, respectively.
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aforementioned charges.           On October 1, 2014, Appellant appeared for

sentencing wherein the trial court was presented with a presentence

investigation (PSI) report. Counsel for Appellant objected to the calculation

of Appellant’s prior record score as reflected in the PSI report.        More

specifically, Appellant argued that, as a juvenile, he was adjudicated

delinquent for the burglary of a business, which is classified as a felony of

the second-degree, but the PSI report listed the offense as a first-degree

felony.   Appellant alleged that the error resulted in the computation of an

erroneous prior record score of four instead of three and, thus, improperly

raised the sentencing guidelines. The trial court allowed Appellant’s counsel

to retrieve Appellant’s juvenile records for inspection.    Upon review, the

order of adjudication, dated April 9, 2003, stated Appellant was adjudicated

delinquent on the charge of burglary, a felony of the first-degree. Thus, the

trial court found that the PSI report accurately reported Appellant’s prior

record score. The trial court sentenced Appellant to 21 months to five years

of incarceration for PWID and an identical, concurrent sentence for

conspiracy.    Appellant received no additional term of imprisonment on the

remaining charges. This timely appeal followed.2
____________________________________________


2
  On October 9, 2014, Appellant filed a post-sentence motion requesting the
trial court modify his sentence consistent with a prior record score of three.
The trial court denied relief by order entered on January 7, 2015. On
January 26, 2015, Appellant filed a timely notice of appeal. On January 27,
2015, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
(Footnote Continued Next Page)


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      On appeal, Appellant presents the following issue for our review:

         Whether the trial court erred in finding that Appellant had a
         prior record score of four, by treating a juvenile adjudication
         for burglary as a conviction for a felony of the first[-
         ]degree, warranting three prior record score points, where
         said adjudication appeared to be for a burglary of a
         business and thus a felony of the second[-]degree,
         constituting two prior record score points, or the records
         were far from clear that such was for a felony of the
         first[-]degree, and the Commonwealth essentially conceded
         such?

Appellant’s Brief at 7 (complete capitalization omitted).

      Initially, we note that Appellant’s claim implicates the discretionary

aspects of sentencing. See Commonwealth v. Johnson, 758 A.2d 1214,

1216 (Pa. Super. 2000) (“A challenge to the calculation of the [s]entencing

[g]uidelines raises a question of the discretionary aspects of a defendant's

sentence.”).    Challenges to the discretionary aspects of sentence are not

appealable as of right.        Commonwealth v. Leatherby, 116 A.3d 73, 83

(Pa. Super. 2015). Rather, an appellant challenging the sentencing court's

discretion must invoke this Court's jurisdiction by satisfying a four-part test:

         We conduct a four-part analysis to determine: (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
                       _______________________
(Footnote Continued)

timely on February 4, 2015. On March 18, 2015, the trial court filed an
opinion pursuant to Pa.R.A.P. 1925(a) stating the reasons for its decision
were set forth on pages 16 and 17 of the sentencing hearing transcript.
Upon review, that portion of the proceeding related to the retrieval of the
order of adjudication that specified the underlying burglary was graded as a
first-degree felony.



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        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.A. § 9781(b).

Id. (citation omitted).

      Here, Appellant complied with the first three requirements above.

Moreover, we have held that a claim that a trial court's improper

consideration of a prior conviction, with a resulting improper prior record

score, raises a substantial question that a fundamental norm underlying the

sentencing process has been violated. See Commonwealth v. Anderson,

830 A.2d 1013, 1018 (Pa. Super. 2003) (holding the contention the trial

court miscalculated a prior record score raises a substantial question). Thus,

we will examine Appellant’s claim.

      Appellant argues, “his 2002 juvenile adjudication was for the burglary

of a business, specifically a grocery store, which should have made it a

second-degree felony, which would have lowered his prior record score to

[three], which would decrease his sentence.”       Appellant’s Brief at 9.   He

maintains that his juvenile records “did not list any statutory sub-sections

for the burglary charge” and there is “simply no way to determine what

specific sub-section of 18 Pa.C.S.A. § 3502 Appellant had, over a decade

earlier, been adjudicated delinquent for.” Id. In support, Appellant notes

that the trial court stated at sentencing that “it did not know if the ‘juvenile

court records were wrong 13 years ago.’” Id. at 10. Appellant also argues

that the Commonwealth essentially conceded that the prior adjudication


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should have been graded as a second-degree burglary, but then claimed,

“there was nothing that anyone could do about the error in those past

juvenile proceedings, and the court should continue forward with a prior

record score of [four].” Id. Appellant contends, in enhancing his sentence,

the Commonwealth bore the burden of proving beyond a reasonable doubt

that his prior record score was correct pursuant to Alleyne v. United

States, 133 S. Ct. 2151 (2013) and it did not meet that burden. Id. at 17-

20.

      Our well-settled standard of review concerning the discretionary

aspects of sentencing is as follows:

        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.

        […]In fashioning a sentence, the trial court must impose a
        term of confinement consistent with the protection of the
        public, the gravity of the offense as it relates to the impact
        of the victim and to the community, and the rehabilitative
        needs of the defendant.... Although the trial court must
        consider the [s]entencing [g]uidelines, the court is not
        obligated to impose a sentence deemed appropriate under
        the [s]entencing [g]uidelines. At the same time, the trial
        court cannot justly sentence a defendant unless it possesses
        sufficient and accurate information about the circumstances
        of the offense and the character of the defendant to
        formulate its judgment. In imposing a defendant's sentence,
        the trial court must state the reasons for the sentence on
        the record. As long as the trial court's reasons demonstrate

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        that it weighed the [s]entencing [g]uidelines with the facts
        of the crime and the defendant's character in a meaningful
        fashion, the court's sentence should not be disturbed.

Anderson, 830 A.2d at 1018-1019 (internal citations omitted).

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

conviction, must establish the defendant's prior record score. 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).    In pertinent part, Section 303.6 provides that prior

juvenile adjudications are counted in the prior record score when the

juvenile offense occurred on or after the offender's 14 th birthday and there

was an express finding by the juvenile court that the adjudication was for a

felony. 204 Pa. Code § 303.6(a).         Here, the juvenile petition shows

Appellant’s date of birth is January 5, 1986 and the underlying burglary was

committed on October 10, 2002. Thus, Appellant was 16 years old at the

time the crime was committed.      Accordingly, because there is no dispute

that the underlying burglary constituted a felony, the adjudication was

properly included in the prior record score.      We turn now to examine

Appellant’s challenge to the grading of that burglary adjudication.

      Initially, we reject Appellant’s contention that the Commonwealth was

required to prove the prior record score was accurate beyond a reasonable

doubt. Appellant has not identified, nor have we independently found, legal

authority to support this claim.    “When reviewing whether the evidence

supports application of a sentencing enhancement provision, this [C]ourt has


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held that a preponderance of the evidence standard is appropriate and does

not   violate   due   process,   [when]   the   provision   that   allows   for   the

enhancement is not an element of the crime charged.” Commonwealth v.

Walker, 666 A.2d 301, 304 (Pa. Super. 1995). “[A] preponderance of the

evidence is the lowest burden of proof in the administration of justice, and it

is defined as the greater weight of the evidence, i.e., to tip a scale slightly in

one's favor.”    Commonwealth v. Ortega, 995 A.2d 879, 886 n.3 (Pa.

Super. 2010) (internal quotations and citation omitted).

      Alleyne is simply inapplicable to the case at bar. That case dealt with

legality of sentence and whether the underlying facts for the imposition of

mandatory minimum sentences were proven beyond a reasonable doubt.

See Commonwealth v. Brunson, 2015 WL 6575591, at *8 (Pa. Super.

Sept. 11, 2015) (“In Alleyne, the Supreme Court held that the Due Process

Clause of the Federal Constitution requires each factor that increases a

mandatory minimum sentence be submitted to a jury and found beyond a

reasonable doubt.”).     Here, there is no basis for the contention that the

calculation of Appellant’s prior record score implicated the imposition of a

mandatory minimum sentence.

      Instead, this Court has previously determined:

         The practice for calculation of a prior record score usually is
         as follows: The court orders a presentence report, which
         contains a list of prior arrests and convictions. The court
         examines the report, and, at the sentencing hearing, listens
         to arguments by prosecution and defense counsel and
         entertains their suggestions as to sentence. At that time,


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        counsel make objections to information obtained in the
        report and the court takes their arguments into
        consideration.

                           *         *           *

        [Accordingly], we hold that the defense has the burden of
        alleging invalid prior convictions, and that if the allegations
        appear to have merit, the court ordinarily should inquire
        into the circumstances surrounding the convictions. If the
        allegations warrant it, the court should require the
        production of evidence by the Commonwealth showing the
        validity of the convictions. If the defendant fails to prove to
        the satisfaction of the court that the inference of
        constitutional adjudications is wrong, the court may infer
        that a presentence report showing convictions is accurate,
        and proceed on that basis.

Commonwealth v. Charles, 488 A.2d 1126, 1132 (Pa. Super. 1985) (some

citations omitted).

      Here, the trial court, in clarifying Appellant’s prior record score,

examined the juvenile petition and the order of adjudication and entered

those exhibits into the record without objection. N.T., 10/1/2014, at 17-18.

The trial court found that the order of adjudication specifically stated that

Appellant was “adjudicated delinquent on the charge[] of burglary, a felony

of the first[-]degree” and concluded the PSI report was accurate. Id. at 16-

17. Upon review, we agree.

      Further, we find additional support in the underlying factual basis of

the juvenile petition to support to the trial court’s conclusion. The juvenile

petition states:

        BURGLARY – 3502 (F1) – The defendant did unlawfully
        enter a building, occupied structure or separately secured or
        occupied po[r]tion thereof at 152 Yoder Road, Meyersdale,

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J-A27028-15


          Pennsylvania 15552, Summit Discount Groceries, property
          of Mervin Henry Yoder with the intent to commit the crime
          of Theft therein, at a time when the premises were not open
          to the public and the actor was not licensed or privileged to
          enter, in that the defendant did force entry into the store
          and attempted to steal (quarters) from the register prior to
          being caught in the store by the victim and friends.

Juvenile Petition, Defense Exhibit 1, at 2 (emphasis added).

     We have stated:

          Under the burglary statute, a defendant commits first[-]
          degree burglary if the location illegally entered: (1) is
          adapted for overnight accommodation but no individual is
          present;    (2)    is   not    adapted     for   overnight
          accommodation but an individual is present; or (3) is
          adapted for overnight accommodation and an individual is
          present. In other words, for burglary to qualify as a
          second[-]degree felony, the illegal entry must involve a
          building, structure, or portion entered that is not adapted
          for overnight accommodation and no one is present.

Commonwealth v. Waters, 988 A.2d 681, 683 (Pa. 2009) (emphasis

added).     Relevant here, the burglary statute specifically delineates a

first-degree felony when one “enters a building or occupied structure, or

separately secured or occupied portion thereof that is not adapted for

overnight accommodations in which at the time of the offense any

person is present[.]” 18 Pa.C.S.A. § 3502(a)(3) (emphasis added). “The

grading of burglary recognizes the potential for more danger when an

innocent person is present during [its] commission.” Commonwealth v.

Rivera, 983 A.2d 767, 770 (Pa. Super. 2009) (citation omitted).           “If

someone is legitimately in the structure at any time during a burglary,

there is the same potential for violence regardless of whether that person



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was present at the moment of the breaking and entering.”        Id. (citation

omitted) (emphasis added). Appellant concedes that “the records show he

was caught in the act[.]”    Appellant’s Brief at 12.   Because others were

present when Appellant burglarized the grocery store, his adjudication was

suitably graded a first-degree burglary.

      For all of the foregoing reasons, we conclude that the preponderance

of the evidence burden of proof was satisfied herein because the evidence

tipped in the Commonwealth’s favor and showed that the grading of

Appellant’s burglary adjudication as a first-degree felony was proper.

Because Appellant failed to prove to the satisfaction of the trial court that

the inference of his first-degree felony burglary adjudication was wrong, the

trial court could infer that the PSI report accurately reflected that

adjudication and its grading.      Hence, Appellant’s prior record score was

correct for sentencing purposes.

      Accordingly, based upon our review of the record, we discern no abuse

of discretion in calculating Appellant’s prior record score and Appellant’s

sentencing claim fails.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2015




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