J-S47015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

JENNIFER ELAINE GOODERMUTH,

                         Appellant                  No. 2110 MDA 2015


           Appeal from the Judgment of Sentence October 30, 2015
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0002957-2015


BEFORE: SHOGAN, LAZARUS, and JENKINS, JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED AUGUST 01, 2016

      Appellant, Jennifer Elaine Goodermuth, appeals from the judgment of

sentence entered by the Court of Common Pleas of York County. We affirm.

      The charges in this case stem from the theft of gasoline from a Turkey

Hill Store on Carlisle Road in Dover Township on March 10, 2015. Appellant

and another individual pumped gasoline into their vehicle at the station and

then drove away without paying.      Appellant was charged with retail theft,

criminal conspiracy to commit retail theft, and receiving stolen property.

      The trial court summarized the procedural history of this case as

follows:

            On September 3, 2015, [Appellant] was before the [c]ourt
      for a stipulated non-jury trial in [this] matter. The parties
      stipulated to the facts contained in the police report, criminal
      complaint and affidavit of probable cause. The sole issue for the
      [c]ourt’s consideration was the gradation of the charge.
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       [Appellant] was previously convicted of Retail Theft on February
       1, 2011 (MJ-19204-NT0721-2010), and was also convicted of
       Criminal Conspiracy to Commit Retail theft on June 23, 2014
       (640-CR-2013).       The Commonwealth charged the current
       offense of retail theft as a third offense. [Appellant] asserts that
       it is only a second offense. The issue before the [c]ourt is
       whether a conviction for Criminal Conspiracy (18 Pa.C.S. §
       903(a)(1)) to Commit Retail Theft (18 Pa.C.S. §3929(a)(1))
       constitutes a prior conviction pursuant to 18 Pa.C.S. §3929(a)(1)
       for gradation purposes. This [c]ourt finds that [Appellant’s]
       conviction for criminal conspiracy to commit retail theft was a
       second offense, making the current charge a third offense,
       graded as a felony of the third degree.

Trial Court Opinion, 9/25/15, at 1-2.

       Following her conviction of these charges, Appellant was sentenced on

October 30, 2015, to eighteen months of probation on each of the

convictions    for   retail   theft   and      criminal   conspiracy,   to    be   served

concurrently. N.T., 10/30/15, at 1-4; Sentence Order, 10/30/15, at 1. The

conviction of receiving stolen property merged with the retail theft

conviction.     N.T., 10/30/15, at 1-4; Sentence Order, 10/30/15, at 1.

Appellant was also sentenced to pay costs and restitution.              Id.    Appellant

timely appealed.       Both the trial court and Appellant complied with the

requirements of Pa.R.A.P. 1925.1

       Appellant presents the following issue for our review:

       1.     Whether the trial court erred in finding that Appellant’s
       prior conviction for criminal conspiracy to commit retail theft is a
____________________________________________


1
 On January 7, 2016, the trial court filed a statement pursuant to Pa.R.A.P.
1925(a), explaining that it was relying on the reasons for its determination
outlined in its opinion and order dated September 25, 2015.



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      substantially similar offense pursuant to 18 Pa.C.S. § 3929(b.1)
      for purposes of grading the current retail theft charge as a felony
      when criminal conspiracy is an inchoate offense not listed in
      Section 3929(b.1) and further does not have the same elements
      as retail theft?

Appellant’s Brief at 4.

      We note the following applicable standard of review:

             A claim that the court improperly graded an offense for
      sentencing purposes implicates the legality of a sentence. A
      challenge to the legality of a sentence may be raised as a matter
      of right, is not subject to waiver, and may be entertained as long
      as the reviewing court has jurisdiction.          If no statutory
      authorization exists for a particular sentence, that sentence is
      illegal and subject to correction. An illegal sentence must be
      vacated. We can raise and review an illegal sentence sua
      sponte.     When we address the legality of a sentence, our
      standard of review is plenary and is limited to determining
      whether the trial court erred as a matter of law.

Commonwealth v. Graeff, 13 A.3d 516, 517-518 (Pa. Super. 2011)

(internal citations and quotation marks omitted).

      The retail theft statute provides, in relevant part, as follows:

      § 3929. Retail theft

      (a) Offense defined.--A person is guilty of a retail theft if he:

            (1) takes possession of, carries away, transfers or
            causes to be carried away or transferred, any
            merchandise displayed, held, stored or offered for
            sale by any store or other retail mercantile
            establishment with the intention of depriving the
            merchant of the possession, use or benefit of such
            merchandise without paying the full retail value
            thereof;

                                       ***

      (b) Grading.--

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           (1) Retail theft constitutes a:

                 (i) Summary offense when the offense is
                 a first offense and the value of the
                 merchandise is less than $150.

                 (ii) Misdemeanor of the second degree
                 when the offense is a second offense and
                 the value of the merchandise is less than
                 $150.

                 (iii) Misdemeanor of the first degree
                 when the offense is a first or second
                 offense and the value of the merchandise
                 is $150 or more.

                 (iv) Felony of the third degree when the
                 offense is a third or subsequent offense,
                 regardless    of   the   value   of   the
                 merchandise.

                 (v) Felony of the third degree when the
                 amount involved exceeds $1,000 or if
                 the merchandise involved is a firearm or
                 a motor vehicle.

                                    ***

     (b.1) Calculation of prior offenses.--For the purposes of this
     section, in determining whether an offense is a first, second,
     third or subsequent offense, the court shall include a conviction,
     acceptance of accelerated rehabilitative disposition or other form
     of preliminary disposition, occurring before the sentencing on the
     present violation, for an offense under this section, an offense
     substantially similar to an offense under this section or under the
     prior laws of this Commonwealth or a similar offense under the
     statutes of any other state or of the United States.

18 Pa.C.S. § 3929(a), (b), and (b.1).

     As noted, Appellant was previously convicted of retail theft in 2011

and criminal conspiracy to commit retail theft in 2014. There is no dispute

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that the previous retail theft conviction counts toward the grading of

Appellant’s current retail theft charge.     For reasons set forth below, we

conclude that the criminal conspiracy charge to commit retail theft also

counts as a previous offense.

      Section 3929(b.1) provides that “an offense substantially similar to an

offense under this section” should be included in the calculation of whether

the offense is a first, second, third, or subsequent offense.     18 Pa.C.S.

§ 3929(b.1).   We agree with the trial court that a conviction of criminal

conspiracy to commit retail theft is an offense “substantially similar” to the

offense of retail theft for purposes of grading.

      Moreover, 18 Pa.C.S. § 905, entitled “grading of criminal attempt,

solicitation and conspiracy,” provides in relevant part as follows: “attempt,

solicitation and conspiracy are crimes of the same grade and degree as the

most serious offense which is attempted or solicited or is an object of the

conspiracy.”   18 Pa.C.S. § 905.     Thus, in the case before us, Appellant’s

conspiracy conviction is a crime of the same grade and degree as the offense

of retail theft, which was the object of the conspiracy.     Accordingly, for

penalty purposes, the conspiracy conviction is tantamount to a conviction for

retail theft. See Commonwealth v. Perkins, 448 A.2d 70, 72 (Pa. Super.

1982) (explaining that “criminal conspiracy in any one particular criminal

incident is the same grade offense as the most serious offense which is the

object of the conspiracy”).


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      Furthermore, we agree with the Commonwealth and the trial court

that Commonwealth v. Gibson, 668 A.2d 552 (Pa. Super. 1995), is

supportive of this determination. In Gibson, the appellant was convicted of

conspiracy to commit retail theft. Id. at 554. Her conviction was graded by

the trial court as a felony in the third degree on the basis of her prior retail

theft convictions, and she was sentenced accordingly.         Id. at 555.    The

appellant appealed, asserting that her sentence was illegal because the

Commonwealth failed to set forth her prior convictions for retail theft in the

criminal information, and therefore the court could not impose an enhanced

sentence under 18 Pa.C.S. § 3929(b)(1)(iv). Id. The trial court held that

the Commonwealth did not need to allege appellant’s prior convictions for

retail theft in the information to impose the enhanced sentence since

appellant was actually convicted of criminal conspiracy. Id. at 555-556.

      On appeal, this Court reversed the trial court, holding that the

sentence imposed was illegal because the Commonwealth was required to

allege appellant’s prior convictions for retail theft in the information in order

to impose the enhanced sentence. Gibson, 668 A.2d at 556. Central to this

Court’s resolution of this issue was 18 Pa.C.S. § 905(a) which, as noted,

provides in pertinent part that “conspiracy [is a crime] of the same grade

and degree as the most serious offense which is ... an object of the

conspiracy.” Id. The Gibson Court explained:

           Since the penalty for a conspiracy conviction was based
      upon the grade of the underlying offense of retail theft, we hold

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      that the Commonwealth was required to aver appellant’s prior
      retail theft convictions in the information in order to empower
      the lower court with the authority to enhance her sentence.
      Since the Commonwealth did not plead appellant’s prior
      convictions she was not put on legal notice that, if convicted, she
      could be sentenced for a felony of the third degree.

Id. at 556. Thus, this Court concluded that the penalty for the conspiracy

conviction was based upon the grade of the underlying offense of retail theft.

Id.

      In this case, the trial court properly counted Appellant’s prior

conviction for criminal conspiracy to commit retail theft as another retail

theft offense under 18 Pa.C.S. § 3929(b.1). Gibson, 668 A.2d at 556 (“the

penalty for conspiracy is based entirely upon the grade of the underlying

offense.”).   As a result, Appellant’s most recent retail theft conviction

constituted her third for purposes of grading and sentencing.

      We agree with the trial court’s determination that Appellant’s

conviction of retail theft was properly deemed a third offense and graded as

a felony of the third degree based upon her prior convictions. We conclude

that the trial court committed no error of law in imposing Appellant’s

sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/1/2016




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