Com. v. Martin (memorandum)

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J.S58007/12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. ROBERT C. MARTIN, Appellant : : : : : : : : : IN THE SUPERIOR COURT O PENNSYLVANIA No. 1856 WDA 2011 Appeal from the Judgment of Sentence September 2, 2011 In the Court of Common Pleas of Potter County Criminal Division No(s).: CP-53-CR-0000237-2010 CP-53-CR-0000238-2010 BEFORE: GANTMAN, WECHT, and FITZGERALD,* JJ. MEMORANDUM BY FITZGERALD, J.: Filed: March 20, 2013 Appellant, Robert C. Martin, appeals from the judgment of sentence entered in the Potter County Court of Common Pleas, alleging that the sentencing court improperly imposed the mandatory sentencing enhancement for violent offenses with firearms and abused its discretion in failing to consider mitigating factors.1 This case returns to us following remand for the trial court to file a Pa.R.A.P. 1925(a) opinion. We affirm.2 * 1 Former Justice specially assigned to the Superior Court. Appellant purported to appeal from the orders dated August 30, 2011 and September 26, 2011, denying his post-sentence motion. [W]hen timely post-sentence motions are filed, an appeal properly lies from the judgment of sentence made final by the denial of post-sentence motions. Commonwealth v. Kuykendall, 2 A.3d 559, 560 n.1 (Pa. Super. 2010). J. S58007/12 Appellant corruption of pleaded minors,4 guilty to endangering harassment,5 persons welfare not to of children,3 possess, use, manufacture, control, sell or transfer firearms,6 conspiracy,7 possession of firearm with altered manufacturer s number,8 manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance,9 use of, or possession with intent to use, drug paraphernalia,10 makes, repairs, sells, or otherwise deals in, uses, or possesses any offensive weapon,11 and use or possession of electric or electronic incapacitation device.12 2 The Commonwealth did not file a brief in the case sub judice. 3 18 Pa.C.S. § 4304(a). 4 18 Pa.C.S. § 6301(a)(1). 5 18 Pa.C.S. § 2709(a)(1). 6 18 Pa.C.S. § 6105(a)(1). 7 18 Pa.C.S. § 903(c). 8 18 Pa.C.S. § 6110.2(a). 9 35 Pa.C.S. § 780-113(a)(30). 10 35 Pa.C.S. § 780-113(a)(32). 11 18 Pa.C.S. § 908(a). 12 18 Pa.C.S. 908.1(c). -2- J. S58007/12 The facts that are pertinent to the issues raised by Appellant on appeal were stated by the Commonwealth at the guilty plea hearing. On September 15th of 2010 state police obtained a search warrant for [Appellant s] residence . . . . At that time they ran a criminal history check that [Appellant] had a prior conviction in Chester County for delivery or with (sic) possession to (sic) intent to deliver a controlled substance, which is a felony. As a result of that prior conviction he was prohibited from possessing, using, manufacturing, controlling, or selling firearms. During the search, . . . several items were found on the premises, including multiple items of drug paraphernalia to store or conceal or ingest marijuana, multiple firearms, a zip gun, a 22-caliber pistol with an altered serial number, a stun gun, and approximately 6 switch blade knives, and various ammunition (sic) and small amount of Oxycodone, a Schedule II controlled substance. From various statements obtained from the investigation as confirmed by the quantity, packaging and items of marijuana seeds it was concluded that [Appellant] possessed this marijuana with intent to deliver same and also . . . the Oxycodone. [Appellant] was also in possession or control of firearms on the premises that were found in the same building as the marijuana. . . . Additionally, [Appellant] did possess with intent to deliver two controlled substances . . . contrary to Title 35 section 780-113[(a)(30)] and specifically . . . firearms were found on the premises near marijuana. N.T. Guilty Plea Hr g, 8/30/11, at 15-17. Following the Commonwealth s statement, the court asked Appellant if it was accurate and if he committed the acts alleged. Appellant responded Yes. Id. at 17. Appellant was sentenced to 80 to 168 months incarceration. Amended Order, 9/26/11, at 2. Appellant filed post-sentence motions which were denied. This timely appeal followed. Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal. -3- J. S58007/12 Appellant raises the following issues for our review: Did the lower court improperly sentence [Appellant] under the mandatory sentencing enhancement for violent offenses with firearms which was unsupported factually? Did the lower court improperly sentence [Appellant] without considering mitigating factors? Appellant s Brief at 5. First, Appellant argues: There must be a factual basis to utilize the mandatory minimum sentencing enhancement. Here the record does not support the position that [Appellant] ever used guns in any drug trafficking. There is no evidence that [he] ever used violence or threats of violence in furtherance of drug trafficking. Id. at 9.13 We find no relief is due. 13 Appellant s argument on this issue consists of two pages. Appellant s Brief at 8-9. Although Appellant cites Commonwealth v. Zortman, 993 A.2d 869 (Pa. 2010), he does not discuss it. We note that citation is for the Pennsylvania Supreme Court s grant of allowance of appeal on the issue of [w]hether an inoperable handgun is a firearm pursuant to 42 Pa.C.S. § 9712(e) for sentence enhancement purposes. Id. Subsequently, our Supreme Court issued an opinion holding that the inoperable handgun was a firearm under section 9712.1. Commonwealth v. Zortman, 23 A.3d 519 (Pa. 2011), cert. denied, 132 S.Ct. 1634 (2012). Pa.R.A.P. 2119(b) provides that [c]itations of authorities must set forth the principle for which they are cited. Pa.R.A.P. 2119(b). Pa.R.A.P. 2119(a) provides: The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part in distinctive type or in type distinctively displayed the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent. Pa.R.A.P. 2119(a). We have repeatedly held that failure to develop an argument with citation to, and analysis of, relevant authority waives the issue on review. Commonwealth v. Plante, 914 A.2d 916, 924 (Pa. Super. 2006) (citation omitted). However, challenges to a trial court s application of a mandatory sentencing provision implicates the legality of the sentence. Commonwealth v. Lewis, 885 A.2d 51, 55 (Pa. Super. 2005). [A] -4- J. S58007/12 Our standard of review of a challenge to the application of a mandatory minimum sentence is de novo and our scope of review is plenary. Commonwealth v. Person, 39 A.3d 302, 305 (Pa. Super. 2012) (citation omitted). The pertinent statute provides: (a) Mandatory sentence. Any person who is convicted of a violation of section 13(a)(30) of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act,[14] when at the time of the offense the person or the person's accomplice is in physical possession or control of a firearm, whether visible, concealed about the person or the person s accomplice or within the actor s or accomplice s reach 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. § 9712.1(a). Furthermore, [t]here shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence. 42 Pa.C.S. § 9712.1(d). See Commonwealth v. Wisor, 928 A.2d 270, 273 (Pa. Super. 2007) (sentencing court has no discretion to impose less than mandatory minimum sentence). challenge to the application of a mandatory minimum sentence is a nonwaiveable challenge to the legality of the sentence. Commonwealth v. Person, 39 A.3d 302, 305 (Pa. Super. 2012) (citation omitted). Therefore, we address this issue. See id. 14 35 Pa.C.S. § 780-113(a)(30). -5- J. S58007/12 In Commonwealth v. Zortman, 985 A.2d 238 (Pa. Super. 2009), aff d, 23 A.3d 519 (Pa. 2011), cert. denied, 132 S.Ct. 1634 (2012),15 this Court held it was reversible error not to apply the mandatory minimum sentence where a gun in the bedroom was in close proximity to drugs in the kitchen. Id. at 244. Similarly, in Commonwealth v. Sanes, 955 A.2d 369 (Pa. Super. 2008), the sentencing enhancement was applied where the gun in the closet was in close proximity to the drugs on the dresser. Id. at 376. In the instant matter, the trial court opined: In the instant case, firearms were found on the same property as large amounts of marijuana, oxycodone and morphine pills. Pennsylvania Courts have held firearms to be in close proximity to drugs for purposes of applying mandatory minimum sentence guidelines under Section 9712.1 where the firearms were on the same piece of property as the controlled substance. See Commonwealth v. Hawkins, 45 A.3d 1123 (Pa. Super. 2012)[, appeal denied, 132 S.Ct. 1634 (Pa. 2012)] (Firearm recovered from common basement area of defendant s apartment was in close proximity to drugs for purposes of applying mandatory minimum sentencing guidelines). Because [Appellant] pled guilty to manufacture, delivery, possession of a controlled substance under Section 13(a)(30) of the Controlled Substance, Drug, Device and Cosmetic Act, . . . the mandatory minimum sentence clearly applied . . . . Trial Ct. Op., 2/12/13, at 4 (unpaginated). We agree. The firearms were found on the premises near marijuana when the state police executed the search warrant of Appellant s residence, mandating the application of the 15 This is the Superior Court decision in the case cited by Appellant. -6- J. S58007/12 sentencing enhancement. See 42 Pa.C.S. § 9712.1(a).; Zortman, supra; Sanes, supra.16 Lastly, Appellant claims the trial court improperly sentenced him because it did not consider mitigating factors. This is a challenge to the discretionary aspect of his sentence. Initially we note that [t]he entry of a guilty plea constitutes a waiver of all defenses and defects except claims of lack of jurisdiction, invalid guilty plea, and illegal sentence. However, Appellant s guilty plea does not bar his discretionary challenge because there was no agreement as to the sentence Appellant would receive. 16 We note that our Pennsylvania Supreme Court has granted the petition for allowance of appeal in Commonwealth v. Hanson, 29 A.3d 366 (Pa. 2011), on the following issues in relation to the statute: 1. Whether, as a matter of statutory construction, the Superior Court properly construed 42 Pa.C.S. § 9712.1(a), and specifically: (a) What is the meaning of the term control of a firearm, as used in Section 9712.1(a)? (b) Whether, under Section 9712.1(a), the Commonwealth demonstrates that a defendant was in physical possession or control of a firearm by merely proving that the firearm was visible, concealed about the person ... or within the actor's ... reach or in close proximity to the controlled substance? (c) What is the meaning of the term in close proximity, as used in Section 9712.1(a)? Id. at 366-67. The general rule followed in Pennsylvania is that we apply the law in effect at the time of the appellate decision. . . . Passarello v. Grumbine, 29 A.3d 1158, 1164 (Pa. Super. 2011), appeal granted, 44 A.3d 654 (Pa. 2012). -7- J. S58007/12 Commonwealth v. Kennedy, 868 A.2d 582, 593 (Pa. Super. 2005). Instantly, there was no agreement as to Appellant s sentence, therefore we address this issue. An appeal from the discretionary aspects of sentencing is not guaranteed as a matter of right. Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010). To reach the merits of a discretionary sentencing issue, we conduct a four-part analysis to determine: (1) whether appellant filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, 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[.] A substantial question will be found where an appellant advances a colorable argument that the sentence imposed is either inconsistent with a specific provision of the Sentencing Code or is contrary to the fundamental norms which underlie the sentencing process. At a minimum, the Rule 2119(f)[17] statement must articulate what particular provision of the code is violated, what fundamental norms the sentence violates, and the manner in which it violates that norm. Id. at 585-86 (some citations omitted). 17 We note that Appellant did not comply with Pa.R.A.P. 2119(f); however, the Commonwealth did not object to this deficiency. An appellant s failure to comply with Rule 2119(f) may be waived if the Commonwealth does not object to the defect. Commonwealth v. Pollard, 832 A.2d 517, 525 (Pa. Super. 2003). -8- J. S58007/12 An argument that the sentencing court failed to adequately consider mitigating factors in favor of a lesser sentence does not present a substantial question appropriate for our review. Ratushny, 17 A.3d 1269, 1273 (Pa. Commonwealth v. Super. 2011); accord Commonwealth v. Lewis, 911 A.2d 558, 567 (Pa. Super. 2006) ( [a] claim that a sentencing court failed to consider certain mitigating factors does not raise a substantial question ). Appellant has failed to present a substantial question for our review. See Ratushny, Accordingly, we affirm the judgment of sentence. Judgment of sentence affirmed. -9- supra; Lewis, supra.

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