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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

SHICON JORDAN

                        Appellant                   No. 3456 EDA 2014


        Appeal from the Judgment of Sentence September 23, 2014
             In the Court of Common Pleas of Monroe County
           Criminal Division at No(s): CP-45-CR-0002854-2013

BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED FEBRUARY 02, 2016

      In this direct appeal, Shicon Jordan argues that the trial court applied

the wrong offense gravity score (“OGS”) in the course of sentencing him for

burglary under 18 Pa.C.S. § 3502(a)(1). We are constrained to agree, and

we therefore remand for resentencing on all of Jordan’s convictions.

      The following evidence was adduced during trial: video surveillance

footage showed that on November 2, 2013, Jordan and a female entered a

Quality Inn hotel in Stroudsburg, Pennsylvania at approximately 7:23 p.m.

and left at approximately 7:42 p.m. with a television. N.T., 7/3/14, at 31-

37.

      At about 10:00 p.m. on the same evening, a security guard in the

same hotel found Jordan and the female in Room 239. N.T., 7/3/14, at 47-

59. There had been a guest in Room 239 the previous evening, but he had

checked out on the morning of November 2nd. Id. at 27. Room 239 was not
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registered to any person at 10:00 p.m., and Jordan had no authority to be in

this room. Id. at 47-48.

       The security guard found two televisions in Room 239, one of which

was behind a curtain.        Id. at 28, 58-59.   Hotel personnel discovered that

televisions were missing from Rooms 237 and 240.           Id. at 28.   One had

been removed from the hotel in the incident between 7:23-7:42 p.m.; the

other was found behind the curtain in Room 239.             Id.   There was no

evidence that any person other than Jordan or his female accomplice was in

Room 237 or 240 when these rooms were burglarized.

       Jordan was charged and convicted of (1) burglary, (2) criminal

trespass, (3) theft by unlawful taking, (4) attempted theft and (5) receiving

stolen property.1 Although the trial transcript is not a model of precision, it

conveys that Jordan’s burglary conviction arose from the incident between

7:23-7:42 p.m., while his criminal trespass conviction arose from the

incident at 10:00 p.m.2
____________________________________________


1
  18 Pa.C.S. §§ 3502(a)(1), 3503(a)(1), 3921(a), 901(a) and 3925(a),
respectively. Jordan also was charged with burglarizing the same hotel on
October 28, 2013 and related offenses, but the jury acquitted him of these
charges.
2
  The trial court instructed the jury that criminal trespass includes “gaining
entry by deception or secretly remaining in place.” N.T., 7/3/14, at 97
(emphasis added). The court did not mention “secretly remaining in place”
in the course of defining burglary to the jury. Id. at 95-96. Because the
10:00 p.m. incident was the only time Jordan secretly remained in place,
this event formed the basis for his criminal trespass conviction, while the
earlier event between 7:23-7:42 p.m. gave rise to his burglary conviction.



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      At sentencing, the court stated that the burglary conviction was a first

degree felony that carried an OGS of 9 and an aggravated range of 72

months.       N.T., 9/23/14, at 5.          The court sentenced Jordan to 72-144

months’ imprisonment for burglary and to consecutive sentences of 19-38

months’     imprisonment          for    criminal     trespass   and   attempted   theft,

respectively.       Id. at 5-6.    The court imposed a concurrent term of 19-38

months’ imprisonment for receiving stolen property and held that the theft

charge merged with burglary for purposes of sentencing. Id.

      Jordan filed a timely post-sentence motion, which the court denied in

an opinion and order dated November 14, 2012. Jordan then filed a timely

appeal, and both Jordan and the trial court complied with Pa.R.A.P. 1925.

      Jordan raises one issue in this appeal: “Do people in a hotel constitute

persons present for purposes of applying a higher [OGS] when it is conceded

by the Commonwealth that the burglary did not occur until the defendant

broke into the hotel room and that the defendant was not prohibited from

being in the hotel itself since it was open to the public?” Brief For Appellant,

at 6. Jordan argues that the OGS for his burglary conviction is 7 instead of

9, because there were no other “person[s] present” at the time of the

burglary.

      An argument that the court misapplied the Sentencing Guidelines

constitutes     a    challenge      to    the    discretionary   aspects   of   sentence.

Commonwealth v. Archer, 722 A.2d 203, 211 (Pa.Super.1998).                             A

challenge to the discretionary aspects of sentencing does not entitle a

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petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super.2011). In order for this Court to address this challenge, an

appellant must (1) file a timely notice of appeal; (2) preserve the issue at

sentencing or in a motion to reconsider and modify sentence; (3) include in

her brief a concise statement of reasons relied upon for allowance of appeal

with respect to the discretionary aspects of her sentence; and (4) present a

substantial question that the sentence appealed from is not appropriate

under the Sentencing Code. Id.

      Jordan filed a timely notice of appeal, preserved his sentencing issue

in a post-sentence motion, and included a concise statement of reasons

relied upon for allowance of appeal with respect to the discretionary aspects

of sentencing in his brief.   Moreover, “a claim that the sentencing court

misapplied the Guidelines,” such as Jordan’s challenge to his OGS, “presents

a substantial question.” Archer, 722 A.2d at 211. Thus, we grant Jordan’s

petition for allowance of appeal and address the merits of his claim.

      When reviewing a challenge to the discretionary aspects of sentencing,

      we determine whether the trial court has abused its discretion …
      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.




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Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.Super.2015) (en

banc).

      A person “commits the offense of burglary if, with the intent to commit

a crime therein,” he

      (1)   [e]nters a building or occupied structure, or separately
            secured or occupied structure thereof that is adapted for
            overnight accommodations in which at the time of the
            offense any person is present;

      (2)   [e]nters a building or occupied structure, or separately
            secured or occupied structure thereof that is adapted for
            overnight accommodations in which at the time of the
            offense no person is present …

18 Pa.C.S. § 3502(a)(1), (2). The OGS for burglary is 9 when any person is

present and 7 when no person is present. See 204 Pa. Code 303.15. The

higher OGS applies when a person is present due to the “greater likelihood

of   mischief.”    Commonwealth       v.   Dickison,   483   A.2d   874,   875

(Pa.Super.1984).

      The trial court determined that Jordan’s OGS was 9 because the

Quality Inn is a structure adapted for overnight accommodation, and at the

time of the burglary, there were persons present in the hotel, namely “at

least one hotel guest at the time of the burglary and … hotel employees

throughout the hotel.” Id. at 4 & n. 2. We are constrained to disagree.

      In Dickison, the defendant pled guilty to burglarizing two unoccupied

rooms at a motel.      The Sentencing Guidelines at that time prescribed an

OGS of 7 for “burglary of a structure adapted for overnight accommodation


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in which at the time of the offense any person is present.” The defendant

contended that a lower OGS (6)3 applied because the motel units were

unoccupied at the time of the burglaries.        Each unit of the motel, the

defendant maintained, constituted a distinct “structure” for purposes of his

OGS.     The sentencing court found that the defendant’s OGS was 7.          It

reasoned that “structure” referred to the entire motel -- and because the

motel was open for business and several units were occupied other than

those the defendant burglarized, the higher score applied.

       This Court vacated the judgment of sentence and remanded for

resentencing.     The panel reasoned that the higher OGS only applies when

there are persons present in the unit(s) burglarized:

       The different [OGS’s] for burglaries committed of structures
       where persons are present and structures where persons are not
       present is premised upon the likelihood of greater mischief in the
       former situation. If a burglary is committed while the structure is
       occupied, the potential for additional and more serious offenses
       is always present. Even if no further crime is committed, the
       presence of the victims and the potential for harm to them
       suggest an offense possessing gravity greater than when no
       person is present. When the reason for the distinction is applied
       to motel complexes, the [OGS] must be determined according to
       the unit burglarized. Otherwise, the lesser [OGS] can have no
       application to a motel unless, perhaps, it is closed for the
       season. Except when closed, the motel will at the very least be
       occupied by a desk clerk who awaits expected lodgers. This, we
       conclude, was not the presence contemplated by the
____________________________________________


3
  Subsequent to Dickison, the OGS for burglary of a structure adapted for
overnight accommodation in which at the time of the offense any person is
present increased from 7 to 9, and the OGS for burglary of an unoccupied
structure adapted for overnight accommodation increased from 6 to 7.



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       Commission when it assessed a higher [OGS] to burglaries of
       overnight accommodations in which one or more persons are
       present.

       We hold, therefore, that the higher [OGS] is applicable only
       where there are persons present in the motel unit burglarized;
       where no one is present in the motel unit, the lower [OGS]
       should be applied. In the instant case the motel units burglarized
       were alleged to be and were, in fact, unoccupied. No persons
       were present when the offense was committed. Therefore, the
       sentencing court was in error when it applied the greater [OGS].

Id. at 875-76 (emphasis added).

       Dickison remains good law today, because the Sentencing Guidelines

pertaining to burglary make the same distinction today that they did in

1984: if another person is present at the time of the burglary in a structure

adapted for overnight accommodations, the higher OGS applies; if not, the

lower OGS applies. See 204 Pa. Code 303.15.

       Dickison is on point with the present case.          Jordan’s burglary

conviction arises from the burglary in Room 237 or 240 between 7:23-7:42

p.m.    There is no evidence that anyone other than Jordan’s female

accomplice was in this hotel unit at the time of the burglary. The presence

of guests in another unit and the presence of hotel employees elsewhere in

the building is of no moment under Dickison.        Id., 483 A.2d at 875-76.

Thus, the lower OGS (7) applies to Jordan’s burglary conviction.

       The fact that there were two burglars in this case but only one in

Dickison is immaterial.    We read Dickison to mean that the higher OGS

applies only when one or more non-participants in the burglary are present


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in the hotel unit, because the purpose of the higher OGS is to impose

greater punishment for harm, real or potential, to non-participants present

in the unit. Id. at 875-76. When no non-participants are present, the lower

OGS applies, regardless of the number of burglars.

      The court cited Dickison in its opinion but makes no attempt to

distinguish it from this case.    The Commonwealth attempts to distinguish

Dickison, but its efforts are unsuccessful.       The Commonwealth contends

that Dickison involved a motel complex with over 100 individual units

housed in several buildings, while this case involves a hotel in a single

building.   Dickison, the Commonwealth claims, only applies to “motel

complexes with separate motel units.” Brief For Commonwealth, at 8. The

Commonwealth admits, however, that “the specific layout of the hotel [in

the present case] was never in issue and not elaborated upon during trial.”

Id. Without any description of the hotel in the record, we have no way to

analyze whether the purported distinction between the motel in Dickison

and the hotel herein is valid.

      Several other cases cited by the trial court and the Commonwealth are

distinguishable, because they involve burglaries of residences instead of

unoccupied hotel units. See Commonwealth v. Knowles, 891 A.2d 745,

746-47 (Pa.Super.2006) (mandatory minimum under 42 Pa.C.S. § 9714

applies where residence burglarized when homeowner was not home at time

of   break-in   but   arrived    home    while   burglary   was   in   progress);


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Commonwealth v. Stepp, 652 A.2d 922 (Pa.Super.1995) (higher OGS

applies when homeowner was not home at time of break-in but arrived

home while burglary was in progress); Commonwealth v. Jackson, 585

A.2d 533 (Pa.Super.1991) (higher OGS applies when owner is in back porch

of residence while it is burglarized).

      For these reasons, the trial court abused its discretion by applying an

OGS of 9 instead of 7. “[A]n incorrect [OGS] requires this Court to remand

for resentencing or amend the sentence directly.” Archer, 722 A.2d at 211

n. 13. We will vacate all of Jordan’s sentences and remand for resentencing

on all convictions to give the trial court the opportunity to restructure its

entire sentencing scheme.      Commonwealth v. Goldhammer, 517 A.2d

1280, 1283–84 (Pa.1986); Commonwealth v. Williams, 871 A.2d 254,

266 (Pa.Super.2005) (if trial court errs in its sentence on one count in multi-

count case, all sentences for all counts will be vacated so court can

restructure its entire sentencing scheme).

      Judgments of sentence on all convictions vacated; case remanded for

resentencing on all convictions. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/2016




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