Com. v. Hernandez (memorandum)

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J-S06010-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. SABINO HERNANDEZ, JR. Appellant No. 1189 MDA 2012 Appeal from the Order June 4, 2012 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0000467-2010 BEFORE: MUNDY, J., OLSON, J., and STRASSBURGER, J.* MEMORANDUM BY MUNDY, J.: Filed: March 8, 2013 Appellant, Sabino Hernandez, Jr., appeals from the June 4, 2012 order denying his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm on the basis of the well-reasoned PCRA court opinion. The relevant facts and procedural history of this case, as gleaned from the certified record, are as follows. This appeal stems from an incident that occurred on January 21, 2010, when police officers discovered illegal drugs and a firearm in Appellant s apartment. Appellant was arrested immediately and charged with possession with intent to deliver (PWID)1 and other related offenses. Subsequently, on August 19, 2010, Appellant entered a negotiated ____________________________________________ * 1 Retired Senior Judge assigned to the Superior Court. 35 P.S. § 780-113(a)(30). J-S06010-13 guilty plea to one count of PWID marijuana. Pursuant to the plea agreement, the Commonwealth requested imposition of the mandatory minimum sentence found at 42 Pa.C.S.A. § 9712.1.2 N.T., 08/19/10, at 3, 5, 7. Thereafter, the sentencing court accepted Appellant s guilty plea and imposed a flat sentence of five years imprisonment.3 Id. at 8. Appellant did not file post-sentence motions or a direct appeal. ____________________________________________ 2 Section 9712.1 provides, in pertinent part, as follows. § 9712.1. Sentences for certain drug offenses committed with firearms (a) Mandatory sentence.--Any person who is convicted of a violation of section 13(a)(30) of the ¦ Controlled Substance, Drug, Device and Cosmetic Act, when at the time of the offense the person ¦ is in physical possession or control of a firearm, whether visible, concealed about the person or ¦ in close proximity to the controlled substance, shall likewise be sentenced to a minimum sentence of at least five years of total confinement. 42 Pa.C.S.A. § 9712.1. 3 We note that, generally, the minimum sentence imposed cannot exceed one-half of the maximum sentence imposed, and a flat sentence is an illegal sentence. Commonwealth v. Stein, 39 A.3d 365, 367 n.1 (Pa. Super. 2012). Marijuana, however, is a Schedule I drug, but not a narcotic drug, and thus the maximum sentence permitted for [the appellant] s conviction for 35 P.S. § 780 113(a)(30) was five years of imprisonment. As the mandatory minimum sentence was also five years pursuant to the applicability of 42 Pa.C.S.A. § 9712.1, [the appellant] s minimum sentence (Footnote Continued Next Page) -2- J-S06010-13 On February 7, 2011, Appellant timely filed a pro se PCRA petition. PCRA counsel was appointed, and on January 24, 2012, counsel filed an amended petition on Appellant s behalf. Subsequently, on May 8, 2012, the PCRA court conducted an evidentiary hearing. Thereafter, on June 4, 2012, the PCRA court denied Appellant s petition for post-conviction relief. This timely appeal followed on June 28, 2012.4 On appeal, Appellant raises the following issue for our review. A. Whether the PCRA [c]ourt erred in denying Appellant s [PCRA p]etition seeking relief in the form of a new sentencing hearing and appropriate resentencing where the [s]entencing [c]ourt imposed an illegal sentence upon Appellant as insufficient evidence was presented to establish by a preponderance that 42 Pa.C.S.A. § 9712 was applicable? Appellant s Brief at 4. Our review of a PCRA court s decision is limited to examining whether the PCRA court s findings of fact are supported by the record, and whether its conclusions of law are free from legal error. Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation omitted). Great deference is granted to the findings of the PCRA court, and these findings will not be (Footnote Continued) _______________________ converged with his maximum sentence, requiring the imposition of a flat five-year sentence. Id. (internal citations omitted). 4 Appellant and the PCRA court have complied with Pa.R.A.P. 1925. -3- J-S06010-13 disturbed unless they have no support in the certified record. Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation omitted). To be eligible for PCRA relief, a defendant must plead and prove by a preponderance of the evidence that his conviction or sentence arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). Furthermore, these issues must be neither previously litigated nor waived. 42 Pa.C.S.A. § 9543(a)(3). In the case sub judice, Appellant contests the legality of his sentence. Appellant s Brief at 4. Specifically, Appellant avers that the Commonwealth failed to prove by a preponderance of the evidence that Appellant possessed the firearm found in his apartment, and that the firearm was located in close proximity to the controlled substance also found in his apartment. Id. at 10-11. The standard of review applied to determine the legality of a sentence is well-settled. If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated. In evaluating a trial court s application of a statute, our standard of review is plenary and is limited to determining whether the trial court committed an error of law. Commonwealth v. Poland, 26 A.3d 518, 523 (Pa. Super. 2011), appeal denied, 37 A.3d 1195 (Pa. 2012). -4- J-S06010-13 After a thorough review of the parties briefs, the PCRA court s August 6, 2012 opinion, and the certified record, we conclude that the PCRA court did not err in sentencing Appellant pursuant to 42 Pa.C.S.A. § 9712.1. The PCRA court s August 6, 2012 opinion comprehensively discusses and properly disposes of Appellant s claim. Furthermore, we conclude that the PCRA court s findings are supported by competent evidence and that it did not err in denying Appellant s petition for PCRA relief. Therefore, for purposes of our review, we adopt the thorough and well-reasoned August 6, 2012 opinion of the Honorable Scott D. Keller as our own. See PCRA Court Opinion, 8/6/12. Accordingly, we affirm the PCRA court s June 4, 2012 order denying PCRA relief. Order affirmed. -5-

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