J. A27008/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DUWAYNE DIXON, : No. 621 WDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, March 12, 2013,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0016492-2008
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 12, 2015
This is an appeal from the judgment of sentence entered March 12,
2013, by the Honorable Joseph K. Williams, III, in the Court of Common
Pleas of Allegheny County. Following review, we vacate and remand.
Andre Ripley (“Ripley”) was scheduled to testify against the leader of
appellant’s gang in an unrelated criminal matter. On February 28, 2008, as
Ripley was entering his house, he was suddenly shot from behind; the bullet
struck his right shoulder. Ripley was then shot again, this time in the head,
and blacked out. Ripley testified that before blacking out, he was able to
turn and identify appellant as the shooter. Ripley recognized appellant as he
had seen him once before and knew appellant’s mother was a friend of his
aunt. Ripley’s mother, Alicia, and his Aunt Topaz were also present at the
shooting. At trial, Alicia, Topaz, and Ripley each testified that Ripley had
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yelled appellant’s nickname, Bear, after being shot. Ripley was hospitalized
and was unable to see for approximately two months after the shooting; he
attended a rehabilitation clinic for four months. On June 27, 2008, following
his release from rehabilitation, Ripley met with detectives and identified
appellant in a photo array.
On December 9, 2008, in connection with the shooting of Ripley,
appellant was charged with one count each of aggravated assault,
18 Pa.C.S.A. § 2702(a)(1), conspiracy, 18 Pa.C.S.A. § 903(a), criminal
attempt (homicide), 18 Pa.C.S.A. §901(a); intimidation of a witness,
18 Pa.C.S.A. § 4952(a), (b); and retaliation against a witness, 18 Pa.C.S.A.
§ 4953(a) and (b). After many pre-trial delays,1 appellant proceeded to a
jury trial before Judge Williams from January 7 through January 18, 2013.
Appellant was found guilty of all charges. On January 30, 2013, the
Commonwealth filed a sentencing memorandum and mandatory notice. The
court ordered appellant to file a written reply no later than February 20,
2013; no reply was filed.
At the March 12, 2013 hearing, appellant was sentenced as follows:
aggravated assault -- 3 to 6 years’ incarceration to be followed by 10 years
of probation; conspiracy -- 10 years of consecutive probation; attempted
homicide -- 15 to 30 years of incarceration to be followed by 20 years of
consecutive probation; intimidation of a witness -- 5 to 10 years of
1
Appellant originally pled guilty but was permitted to withdraw his plea.
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consecutive imprisonment; retaliation against a witness -- 5 to 10 years of
consecutive imprisonment. Thus, the aggregate sentence, according to the
trial court opinion, was intended to be 28 to 56 years of imprisonment,
followed by 40 years of probation. Also on this date, defense counsel was
permitted to withdraw, and the court noted that a public defender would be
appointed. (Docket #72.)
A pro se motion to reconsider sentence was timely filed on March 19,
2013. (Docket #74.)2 Counsel filed a timely notice of appeal on April 11,
2013. (Docket #75.) Thereafter, on May 23, 2013, the trial court issued an
order stating it had received two communications from the Department of
Corrections regarding appellant’s judgment of sentence; the order stated
that appellant’s sentence was to run consecutively to a sentence in
Montgomery County. (Docket #79). Appellant complied with the trial
court’s order to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has
filed an opinion.
The following issues have been presented for our review:
I. WAS THE SENTENCE IMPOSED ON
[APPELLANT] ILLEGAL IN MULTIPLE
RESPECTS?
A. SHOULD NOT THE SENTENCES FOR
AGGRAVATED ASSAULT AND
ATTEMPTED HOMICIDE MERGE
FOR SENTENCING PURPOSES?
2
It does not appear that the trial court addressed this motion.
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B. SHOULD NOT THE SENTENCES FOR
THE TWO INCHOATE OFFENSES
THAT WERE DESIGNED TO
CULMINATE IN THE COMMISSION
OF THE SAME CRIME NAMELY
ATTEMPTED HOMICIDE AND
CRIMINAL CONSPIRACY
(HOMICIDE), MERGE FOR
SENTENCING PURPOSES?
C. WAS THE SENTENCE IMPOSED FOR
CRIMINAL ATTEMPT (HOMICIDE)
ILLEGAL BECAUSE IT WAS
GREATER THAN THE LAWFUL
MAXIMUM PERMITTED FOR THAT
OFFENSE?
D. WAS THE SENTENCE IMPOSED ON
COUNT 5, RETALIATION AGAINST
WITNESS OR VICTIM, OF FIVE TO
TEN YEARS OF INCARCERATION,
ILLEGAL BECAUSE THE CRIME IS
GRADED AS A FELONY 3, WHICH
HAS A STATUTORY MAXIMUM
SENTENCE OF 7 YEARS?
Appellant’s brief at 6.
Each of appellant’s claims concerns the legality of his sentence. Issues
relating to the legality of a sentence are questions of law, as are claims
raising a court's interpretation of a statute. Our standard of review over
such questions is de novo and our scope of review is plenary.
Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa.Super. 2012),
appeal denied, 53 A.3d 756 (Pa. 2012).
We begin by summarily addressing appellant’s first, second and fourth
issues. The trial court and the Commonwealth each concede that appellant’s
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analysis of these three claims is correct. Following our review, we also
agree with appellant that he is entitled to a remand for the purpose of
resentencing.
Under the circumstances of this case, appellant’s sentences for
attempted murder and aggravated assault should have merged. Although
appellant shot the victim twice, his acts demonstrate a single criminal
episode. See Commonwealth v. Anderson, 650 A.2d 20, 24 (Pa. 1994).
Accordingly, we must vacate the judgment of sentence for appellant’s
aggravated assault conviction.
We also agree that the offenses of criminal conspiracy and criminal
attempt-homicide both fall within the purview of Chapter 9 of the Crimes
Code. Appellant’s sentence for the two aforementioned inchoate crimes is
violative of 18 Pa.C.S.A. §906, which provides
A person may not be convicted of more than one of
the inchoate crimes of criminal attempt, criminal
solicitation or criminal conspiracy for conduct
designed to commit or to culminate in the
commission of the same crime.
It is apparent from our review of the facts that the offenses were
perpetrated with one objective in mind -- the (attempted) killing of Ripley.
Accordingly, a remand for resentencing is required. See Commonwealth
v. Ford, 461 A.2d 1281, 1289-1290 (Pa.Super. 1983).
Finally, we agree with appellant that the 5 to 10-year sentence
imposed for retaliation must be vacated as that offense, a felony of the third
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degree, carries a statutory maximum sentence of only 7 years. 18 Pa.C.S.A.
§ 4953(a), (b), 18 Pa.C.S.A. § 1103(c). As the sentence imposed is beyond
this statutory limit, it is therefore illegal.
We now turn to the third issue presented which concerns the sentence
imposed for the conviction of criminal attempt-homicide. Appellant claims
the sentence of 15 to 30 years of incarceration and a consecutive term of 20
years’ probation exceeds the statutory maximum. Appellant’s argument is
two-fold. First, appellant argues that 18 Pa.C.S.A. § 1102(c) permits a
sentence of up to 40 years for attempted homicide where serious bodily
injury results, but only up to 20 years where serious bodily injury does not
result. (Appellant’s brief at 25.) Appellant directs our attention to
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), wherein the United
States Supreme Court held that “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” Appellant notes that the verdict form in this case did not
mention serious bodily injury with respect to the attempted homicide charge
and argues such a finding cannot be implied by virtue of the fact that the
court instructed the jury on serious bodily injury. Second, appellant argues
that, in any event, the totally combined maximum sentence of 15 years to
30 years of incarceration followed by 20 years of probation would exceed the
40-year maximum.
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We agree with appellant that the failure of the jury to render a
separate finding regarding serious bodily injury requires that we vacate the
conviction and remand for resentencing. We find support for our conclusion
in Commonwealth v. Johnson, 910 A.2d 60 (Pa.Super. 2006), appeal
denied, 923 A.2d 1173 (Pa. 2007). In Johnson, this court held that a
defendant convicted of attempted murder and aggravated assault was
sentenced illegally where the jury did not determine that serious bodily
injury occurred relative to the attempted murder charge. The trial court
therein concluded that serious bodily injury was proven because the jury
convicted the defendant of aggravated assault causing serious bodily injury.
The Johnson court found that the jury’s consideration of serious bodily
injury for the aggravated assault count was not relevant to the attempted
murder conviction.
Relying on Apprendi, supra, the Johnson court held that it was not
the prerogative of the trial court but solely the responsibility of the jury to
find, beyond a reasonable doubt, whether a serious bodily injury resulted
from the attempted murder. The court held that to sentence a defendant to
a maximum term of incarceration of 40 years for attempted murder, the jury
must determine that the Commonwealth proved serious bodily injury as it
specifically pertained to the attempted murder charge.
Instantly, the trial court points to other facts which it found served to
distinguish this case from Johnson. First, the trial court noted that
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appellant had been put on notice that the Commonwealth was alleging
serious bodily injury in connection with the attempted homicide. Also,
appellant originally had entered a guilty plea on October 3, 2011, resulting
in the preparation of a sentencing memorandum by the Commonwealth that
set forth its position that Ripley had sustained serious bodily injury.
Appellant was later permitted to withdraw his plea and proceed to trial
aware of the Commonwealth’s contention. Additionally, the trial court
pointed to its instruction to the jury in connection with the criminal attempt
charge:
The final element you must find is whether, as a
result of the defendant’s attempt to commit murder,
solicitation to commit murder or conspiracy to
commit murder, serious bodily injury resulted to the
victim. Serious bodily injury is bodily injury that
creates a substantial risk of death or that causes
serious, permanent disfigurement, or protracted loss
or impairment of the function of any bodily member
or organ. If you find that the defendant caused
serious bodily injury, you should mark the verdict
slip accordingly. If you find that nonserious bodily
injury was caused, you should mark the verdict slip
as such.
Notes of testimony, 1/11-18/13 at 600.
However, we agree with appellant that Apprendi requires more than
notice that a defendant is facing an increased sentence. Furthermore,
regardless of the instruction, the verdict slip did not provide a place for the
jury to indicate whether or not they found serious bodily injury. While the
trial court notes that appellant did not contest that serious bodily injury
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resulted, the prevailing law at the time explicitly called for an Apprendi
instruction and finding. Thus, we are constrained to vacate the sentence on
this count and remand for resentencing.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/2015
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