J-A27028-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DANIEL RICHARD HORNING,
Appellant No. 166 WDA 2015
Appeal from the Judgment of Sentence of October 1, 2014
In the Court of Common Pleas of Somerset County
Criminal Division at No(s): CP-56-CR-0000530-2013
BEFORE: BOWES, OLSON & STABILE, JJ.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 30, 2015
Appellant, Daniel Richard Horning, appeals from the judgment of
sentence following his jury trial convictions for possession with intent to
deliver narcotics (PWID), knowingly or intentionally possessing a controlled
or counterfeit substance by an unregistered person, possession of drug
paraphernalia, and conspiracy.1 Upon careful review, we affirm.
We briefly summarize the facts and procedural history of this case as
follows. On June 26, 2012, the Somerset County Drug Task force arrested
Appellant after utilizing a confidential informant to purchase heroin from him
and a co-defendant. On August 6, 2014, a jury convicted Appellant of the
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1
35 P.S. §§ 780-113(a)(30), 780-113(a)(16), 780-113(a)(32), and 18
Pa.C.S.A. § 903, respectively.
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aforementioned charges. On October 1, 2014, Appellant appeared for
sentencing wherein the trial court was presented with a presentence
investigation (PSI) report. Counsel for Appellant objected to the calculation
of Appellant’s prior record score as reflected in the PSI report. More
specifically, Appellant argued that, as a juvenile, he was adjudicated
delinquent for the burglary of a business, which is classified as a felony of
the second-degree, but the PSI report listed the offense as a first-degree
felony. Appellant alleged that the error resulted in the computation of an
erroneous prior record score of four instead of three and, thus, improperly
raised the sentencing guidelines. The trial court allowed Appellant’s counsel
to retrieve Appellant’s juvenile records for inspection. Upon review, the
order of adjudication, dated April 9, 2003, stated Appellant was adjudicated
delinquent on the charge of burglary, a felony of the first-degree. Thus, the
trial court found that the PSI report accurately reported Appellant’s prior
record score. The trial court sentenced Appellant to 21 months to five years
of incarceration for PWID and an identical, concurrent sentence for
conspiracy. Appellant received no additional term of imprisonment on the
remaining charges. This timely appeal followed.2
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2
On October 9, 2014, Appellant filed a post-sentence motion requesting the
trial court modify his sentence consistent with a prior record score of three.
The trial court denied relief by order entered on January 7, 2015. On
January 26, 2015, Appellant filed a timely notice of appeal. On January 27,
2015, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
(Footnote Continued Next Page)
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On appeal, Appellant presents the following issue for our review:
Whether the trial court erred in finding that Appellant had a
prior record score of four, by treating a juvenile adjudication
for burglary as a conviction for a felony of the first[-
]degree, warranting three prior record score points, where
said adjudication appeared to be for a burglary of a
business and thus a felony of the second[-]degree,
constituting two prior record score points, or the records
were far from clear that such was for a felony of the
first[-]degree, and the Commonwealth essentially conceded
such?
Appellant’s Brief at 7 (complete capitalization omitted).
Initially, we note that Appellant’s claim implicates the discretionary
aspects of sentencing. See Commonwealth v. Johnson, 758 A.2d 1214,
1216 (Pa. Super. 2000) (“A challenge to the calculation of the [s]entencing
[g]uidelines raises a question of the discretionary aspects of a defendant's
sentence.”). Challenges to the discretionary aspects of sentence are not
appealable as of right. Commonwealth v. Leatherby, 116 A.3d 73, 83
(Pa. Super. 2015). Rather, an appellant challenging the sentencing court's
discretion must invoke this Court's jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
_______________________
(Footnote Continued)
timely on February 4, 2015. On March 18, 2015, the trial court filed an
opinion pursuant to Pa.R.A.P. 1925(a) stating the reasons for its decision
were set forth on pages 16 and 17 of the sentencing hearing transcript.
Upon review, that portion of the proceeding related to the retrieval of the
order of adjudication that specified the underlying burglary was graded as a
first-degree felony.
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sentence, see 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, 42
Pa.C.S.A. § 9781(b).
Id. (citation omitted).
Here, Appellant complied with the first three requirements above.
Moreover, we have held that a claim that a trial court's improper
consideration of a prior conviction, with a resulting improper prior record
score, raises a substantial question that a fundamental norm underlying the
sentencing process has been violated. See Commonwealth v. Anderson,
830 A.2d 1013, 1018 (Pa. Super. 2003) (holding the contention the trial
court miscalculated a prior record score raises a substantial question). Thus,
we will examine Appellant’s claim.
Appellant argues, “his 2002 juvenile adjudication was for the burglary
of a business, specifically a grocery store, which should have made it a
second-degree felony, which would have lowered his prior record score to
[three], which would decrease his sentence.” Appellant’s Brief at 9. He
maintains that his juvenile records “did not list any statutory sub-sections
for the burglary charge” and there is “simply no way to determine what
specific sub-section of 18 Pa.C.S.A. § 3502 Appellant had, over a decade
earlier, been adjudicated delinquent for.” Id. In support, Appellant notes
that the trial court stated at sentencing that “it did not know if the ‘juvenile
court records were wrong 13 years ago.’” Id. at 10. Appellant also argues
that the Commonwealth essentially conceded that the prior adjudication
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should have been graded as a second-degree burglary, but then claimed,
“there was nothing that anyone could do about the error in those past
juvenile proceedings, and the court should continue forward with a prior
record score of [four].” Id. Appellant contends, in enhancing his sentence,
the Commonwealth bore the burden of proving beyond a reasonable doubt
that his prior record score was correct pursuant to Alleyne v. United
States, 133 S. Ct. 2151 (2013) and it did not meet that burden. Id. at 17-
20.
Our well-settled standard of review concerning the discretionary
aspects of sentencing is as follows:
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.
[…]In fashioning a sentence, the trial court must impose a
term of confinement consistent with the protection of the
public, the gravity of the offense as it relates to the impact
of the victim and to the community, and the rehabilitative
needs of the defendant.... Although the trial court must
consider the [s]entencing [g]uidelines, the court is not
obligated to impose a sentence deemed appropriate under
the [s]entencing [g]uidelines. At the same time, the trial
court cannot justly sentence a defendant unless it possesses
sufficient and accurate information about the circumstances
of the offense and the character of the defendant to
formulate its judgment. In imposing a defendant's sentence,
the trial court must state the reasons for the sentence on
the record. As long as the trial court's reasons demonstrate
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that it weighed the [s]entencing [g]uidelines with the facts
of the crime and the defendant's character in a meaningful
fashion, the court's sentence should not be disturbed.
Anderson, 830 A.2d at 1018-1019 (internal citations omitted).
The trial court, in determining the guideline sentence for a criminal
conviction, must establish the defendant's prior record score. 204 Pa.Code
§ 303.2(a)(2). The prior record score “is based on the type and number of
prior convictions (§ 303.5) and prior juvenile adjudications (§ 303.6).” 204
Pa.Code § 303.4(a). In pertinent part, Section 303.6 provides that prior
juvenile adjudications are counted in the prior record score when the
juvenile offense occurred on or after the offender's 14 th birthday and there
was an express finding by the juvenile court that the adjudication was for a
felony. 204 Pa. Code § 303.6(a). Here, the juvenile petition shows
Appellant’s date of birth is January 5, 1986 and the underlying burglary was
committed on October 10, 2002. Thus, Appellant was 16 years old at the
time the crime was committed. Accordingly, because there is no dispute
that the underlying burglary constituted a felony, the adjudication was
properly included in the prior record score. We turn now to examine
Appellant’s challenge to the grading of that burglary adjudication.
Initially, we reject Appellant’s contention that the Commonwealth was
required to prove the prior record score was accurate beyond a reasonable
doubt. Appellant has not identified, nor have we independently found, legal
authority to support this claim. “When reviewing whether the evidence
supports application of a sentencing enhancement provision, this [C]ourt has
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held that a preponderance of the evidence standard is appropriate and does
not violate due process, [when] the provision that allows for the
enhancement is not an element of the crime charged.” Commonwealth v.
Walker, 666 A.2d 301, 304 (Pa. Super. 1995). “[A] preponderance of the
evidence is the lowest burden of proof in the administration of justice, and it
is defined as the greater weight of the evidence, i.e., to tip a scale slightly in
one's favor.” Commonwealth v. Ortega, 995 A.2d 879, 886 n.3 (Pa.
Super. 2010) (internal quotations and citation omitted).
Alleyne is simply inapplicable to the case at bar. That case dealt with
legality of sentence and whether the underlying facts for the imposition of
mandatory minimum sentences were proven beyond a reasonable doubt.
See Commonwealth v. Brunson, 2015 WL 6575591, at *8 (Pa. Super.
Sept. 11, 2015) (“In Alleyne, the Supreme Court held that the Due Process
Clause of the Federal Constitution requires each factor that increases a
mandatory minimum sentence be submitted to a jury and found beyond a
reasonable doubt.”). Here, there is no basis for the contention that the
calculation of Appellant’s prior record score implicated the imposition of a
mandatory minimum sentence.
Instead, this Court has previously determined:
The practice for calculation of a prior record score usually is
as follows: The court orders a presentence report, which
contains a list of prior arrests and convictions. The court
examines the report, and, at the sentencing hearing, listens
to arguments by prosecution and defense counsel and
entertains their suggestions as to sentence. At that time,
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counsel make objections to information obtained in the
report and the court takes their arguments into
consideration.
* * *
[Accordingly], we hold that the defense has the burden of
alleging invalid prior convictions, and that if the allegations
appear to have merit, the court ordinarily should inquire
into the circumstances surrounding the convictions. If the
allegations warrant it, the court should require the
production of evidence by the Commonwealth showing the
validity of the convictions. If the defendant fails to prove to
the satisfaction of the court that the inference of
constitutional adjudications is wrong, the court may infer
that a presentence report showing convictions is accurate,
and proceed on that basis.
Commonwealth v. Charles, 488 A.2d 1126, 1132 (Pa. Super. 1985) (some
citations omitted).
Here, the trial court, in clarifying Appellant’s prior record score,
examined the juvenile petition and the order of adjudication and entered
those exhibits into the record without objection. N.T., 10/1/2014, at 17-18.
The trial court found that the order of adjudication specifically stated that
Appellant was “adjudicated delinquent on the charge[] of burglary, a felony
of the first[-]degree” and concluded the PSI report was accurate. Id. at 16-
17. Upon review, we agree.
Further, we find additional support in the underlying factual basis of
the juvenile petition to support to the trial court’s conclusion. The juvenile
petition states:
BURGLARY – 3502 (F1) – The defendant did unlawfully
enter a building, occupied structure or separately secured or
occupied po[r]tion thereof at 152 Yoder Road, Meyersdale,
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Pennsylvania 15552, Summit Discount Groceries, property
of Mervin Henry Yoder with the intent to commit the crime
of Theft therein, at a time when the premises were not open
to the public and the actor was not licensed or privileged to
enter, in that the defendant did force entry into the store
and attempted to steal (quarters) from the register prior to
being caught in the store by the victim and friends.
Juvenile Petition, Defense Exhibit 1, at 2 (emphasis added).
We have stated:
Under the burglary statute, a defendant commits first[-]
degree burglary if the location illegally entered: (1) is
adapted for overnight accommodation but no individual is
present; (2) is not adapted for overnight
accommodation but an individual is present; or (3) is
adapted for overnight accommodation and an individual is
present. In other words, for burglary to qualify as a
second[-]degree felony, the illegal entry must involve a
building, structure, or portion entered that is not adapted
for overnight accommodation and no one is present.
Commonwealth v. Waters, 988 A.2d 681, 683 (Pa. 2009) (emphasis
added). Relevant here, the burglary statute specifically delineates a
first-degree felony when one “enters a building or occupied structure, or
separately secured or occupied portion thereof that is not adapted for
overnight accommodations in which at the time of the offense any
person is present[.]” 18 Pa.C.S.A. § 3502(a)(3) (emphasis added). “The
grading of burglary recognizes the potential for more danger when an
innocent person is present during [its] commission.” Commonwealth v.
Rivera, 983 A.2d 767, 770 (Pa. Super. 2009) (citation omitted). “If
someone is legitimately in the structure at any time during a burglary,
there is the same potential for violence regardless of whether that person
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was present at the moment of the breaking and entering.” Id. (citation
omitted) (emphasis added). Appellant concedes that “the records show he
was caught in the act[.]” Appellant’s Brief at 12. Because others were
present when Appellant burglarized the grocery store, his adjudication was
suitably graded a first-degree burglary.
For all of the foregoing reasons, we conclude that the preponderance
of the evidence burden of proof was satisfied herein because the evidence
tipped in the Commonwealth’s favor and showed that the grading of
Appellant’s burglary adjudication as a first-degree felony was proper.
Because Appellant failed to prove to the satisfaction of the trial court that
the inference of his first-degree felony burglary adjudication was wrong, the
trial court could infer that the PSI report accurately reflected that
adjudication and its grading. Hence, Appellant’s prior record score was
correct for sentencing purposes.
Accordingly, based upon our review of the record, we discern no abuse
of discretion in calculating Appellant’s prior record score and Appellant’s
sentencing claim fails.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2015
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