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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DUSTIN JOSEPH MILLER
Appellant No. 465 MDA 2016
Appeal from the Judgment of Sentence November 10, 2015
In the Court of Common Pleas of Fulton County
Criminal Division at No(s): CP-29-CR-0000160-2015
BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 06, 2016
Appellant, Dustin Joseph Miller, appeals from the judgment of
sentence entered in the Fulton County Court of Common Pleas, following his
guilty plea to burglary and theft by unlawful taking.1 We affirm.
The relevant facts and procedural history of this case are as follows.
On July 9, 2015, Appellant entered the victim’s home and removed
seventeen firearms and two chainsaws. On October 6, 2015, Appellant pled
guilty to one count each of burglary and theft by unlawful taking. 2 The court
____________________________________________
1
18 Pa.C.S.A. §§ 3502(a)(2), 3921(a).
2
Appellant’s guilty plea included an additional theft count at Docket No.
159-2015, relating to a separate incident, and the court consolidated
sentencing on all three counts. The current appeal, however, lies only from
the judgment of sentence imposed at Docket No. 160-2015, which relates
(Footnote Continued Next Page)
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sentenced Appellant on November 10, 2015, to consecutive terms of
incarceration of nine (9) to forty-eight (48) months for burglary and twelve
(12) to forty-eight (48) months for theft. Appellant timely filed a post-
sentence motion on November 20, 2015, which the court denied on February
18, 2016. Appellant filed a timely notice of appeal on March 14, 2016. The
court ordered Appellant to file a concise statement of errors complained of
on appeal per Pa.R.A.P. 1925(b), and Appellant timely complied.
Appellant raises the following issues for our review:
DID THE SENTENCING COURT ERR IN STRICTLY APPLYING
THE “RULES” OR “TEST” SET FORTH IN THE STATUTES, 18
PA.C.S. SECTION 3502(D) AND 42 PA.C.S. SECTION 9765,
BECAUSE APPLYING THOSE STATUTES AS THE SOLE TEST
OF MERGER WOULD USURP THE SUPREME COURT’S
AUTHORITY TO INTERPRET PA. CONST. ART. 1, SECTION
[10] (PROHIBITION AGAINST DOUBLE JEOPARDY), WHICH
USURPATION IS AN UNCONSTITUTIONAL VIOLATION OF
THE SEPARATION OF POWERS[?]
DID THE SENTENCING COURT ERR IN ITS APPLICATION
OF THE LANGUAGE OF THE STATUTES, 18 PA.C.S.
SECTION 3502(D) AND 42 PA.C.S. SECTION 9765,
BECAUSE THE LANGUAGE OF THE STATUTES DOES NOT
NECESSARILY EXCLUDE THE APPLICATION OF PRIOR
PENNSYLVANIA DOUBLE JEOPARDY JURISPRUDENCE
WHICH INCLUDES NOT JUST THE STRICT ELEMENTS OF
THE CRIMES, BUT ALSO WHETHER ONE OF THE CRIMES
REQUIRE A “PROOF OF A FACT” THAT THE OTHER DOES
NOT.
(Appellant’s Brief at 9).
_______________________
(Footnote Continued)
solely to the burglary and theft convictions in connection with the July 9,
2015 incident.
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In his issues combined, Appellant argues the doctrine of merger is
grounded in the constitutional prohibition against double jeopardy.
Appellant asserts the relevant merger statutes cannot supersede the courts’
authority to determine whether offenses merge for sentencing under the
double jeopardy clause. Appellant contends a constitutional merger analysis
requires an examination of the statutory elements of the offenses at issue
and the factual circumstances of the particular case. Appellant further
claims 42 Pa.C.S.A. § 9765 codified preexisting case law, which did not
dictate a strict elements approach to merger. Appellant contends his
convictions for burglary and theft should merge for sentencing because they
were essentially based on a single criminal act—breaking into a home and
stealing property. Appellant concludes this Court should vacate his theft
sentence. We disagree.
“A claim that crimes should have merged for sentencing purposes
raises a challenge to the legality of the sentence. Therefore, our standard of
review is de novo and our scope of review is plenary.” Commonwealth v.
Quintua, 56 A.3d 399, 400 (Pa.Super. 2012), appeal denied, 620 Pa. 730,
70 A.3d 910 (2013). Merger of sentences is governed generally by Section
9765 of the Sentencing Code, which provides:
§ 9765. Merger of sentences
No crimes shall merge for sentencing purposes unless the
crimes arise from a single criminal act and all of the
statutory elements of one offense are included in the
statutory elements of the other offense. Where crimes
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merge for sentencing purposes, the court may sentence
the defendant only on the higher graded offense.
42 Pa.C.S.A. § 9765. See also Commonwealth v. Baldwin, 604 Pa. 34,
985 A.2d 830 (2009) (recognizing General Assembly’s prerogative to
determine when offenses merge for sentencing and rejecting claim that
Section 9765 elements test for merger violates federal double jeopardy
clause); Commonwealth v. Wade, 33 A.3d 108 (Pa.Super. 2011) (stating:
“There is nothing in the text of our constitution, the case law interpreting the
Pennsylvania double jeopardy clause, or more modern Pennsylvania or
federal jurisprudence that reveals that the Pennsylvania Constitution affords
greater double jeopardy protections in the merger of sentencing arena than
does the federal constitution”; Section 9765 does not run afoul of double
jeopardy clause in Pennsylvania Constitution). Further, “A person may not
be sentenced both for burglary and for the offense which it was his intent to
commit after the burglarious entry or for an attempt to commit that offense,
unless the additional offense constitutes a felony of the first or second
degree.” 18 Pa.C.S.A. § 3502(d) (emphasis added). See also 18 Pa.C.S.A.
3903(a)(2) (grading theft as second-degree felony where property stolen is
firearm).
The Crimes Code defines burglary in relevant part as follows:
§ 3502. Burglary
(a) Offense defined.—A person commits the offense of
burglary if, with the intent to commit a crime therein, the
person:
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* * *
(2) enters a building or occupied structure, or separately
secured or occupied portion thereof that is adapted for
overnight accommodations in which at the time of the
offense no person is present[.]
18 Pa.C.S.A. § 3502(a)(2). “A person is guilty of theft if he unlawfully takes,
or exercises unlawful control over, movable property of another with intent
to deprive him thereof.” 18 Pa.C.S.A. § 3921(a).
Instantly, Appellant entered the victim’s home and stole multiple
firearms and chainsaws. Appellant pled guilty to burglary and theft by
unlawful taking, which was the offense he intended to commit upon entering
the victim’s home. The burglary conviction required proof that Appellant
entered the home with intent to commit a crime. See 18 Pa.C.S.A. §
3502(a)(2). To convict Appellant of theft, the Commonwealth had to prove
Appellant unlawfully took, or exercised control over, movable property of the
victim with intent to deprive him of that property. See. 18 Pa.C.S.A. §
3921(a). Thus, each offense requires proof of an element the other does
not. Pursuant to Section 9765, Appellant’s burglary and theft offenses would
not merge for sentencing. See 42 Pa.C.S.A. § 9765. The plain text of the
Section 9765, and the Supreme Court’s pronouncement in Baldwin, belie
Appellant’s claim that the statute does not dictate a pure elements approach
to merger. See Baldwin, supra at 39, 985 A.2d at 833 (stating: “The
statute’s mandate is clear. It prohibits merger unless two distinct facts are
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present: 1) the crimes arise from a single criminal act; and 2) all of the
statutory elements of one of the offenses are included in the statutory
elements of the other”). Nevertheless, the burglary statute might prohibit
separate sentences “unless the additional offense constitutes a felony of the
first or second degree.” See 18 Pa.C.S.A. § 3502(d). Here, Appellant’s
theft offense was properly graded as a second-degree felony. See 18
Pa.C.S.A. 3903(a)(2). Therefore, the offenses also do not merge under the
terms of the burglary statute. See 18 Pa.C.S.A. § 3502(d).
Additionally, Appellant’s “separation of powers” argument
misconstrues the relationship between double jeopardy and the merger
doctrine. Both Baldwin and Wade recognized that double jeopardy
protections are principally a restraint on courts and prosecutors; they do not
limit the authority of the General Assembly to define crimes and fix
punishments, including when offenses merge for sentencing. See Baldwin,
supra at 44, 985 A.2d at 836-37 (stating: “With respect to cumulative
sentences imposed in a single trial, the Double Jeopardy Clause does no
more than prevent the sentencing court from prescribing greater punishment
than the legislature intended”); Wade, supra at 120 (stating same).
Therefore, neither 42 Pa.C.S.A. § 9765 nor 18 Pa.C.S.A. § 3502(d) violates
the separation of powers doctrine. Furthermore, Baldwin explicitly rejected
the claim that Section 9765 is unconstitutional under the federal double
jeopardy clause. See Baldwin, supra. Wade likewise held Section 9765
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does not violate the double jeopardy clause of the Pennsylvania Constitution.
See Wade, supra. By the same logic, 18 Pa.C.S.A. § 3502(d), which
provides even greater protection against cumulative sentences in burglary
cases relative to the baseline set by Section 9765, does not offend federal or
state double jeopardy principles. Based on the foregoing, the trial court
properly imposed separate sentences for Appellant’s burglary and theft
convictions. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2016
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