J-S73017-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
KYLE EDWARD LANE,
Appellant No. 439 WDA 2018
Appeal from the PCRA Order Entered February 28, 2018
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-001228-2016
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 30, 2019
Appellant, Kyle Edward Lane, appeals from the post-conviction court’s
order denying his timely-filed petition under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
We need not reiterate the procedural history and factual background of
this case, as the PCRA court set forth a comprehensive summary of both in its
August 14, 2018 opinion pursuant to Pa.R.A.P. 1925(a). See PCRA Court
Opinion (PCO), 8/14/2018, at 1-3. Presently, Appellant raises two issues for
our review:
A. Whether the lower court erred in failing to find that the plea
proceeding was invalidated in that counsel directly induced
the pleas [sic] by promising that the sentence would run
concurrently with any parole violation hit or in failing to
properly address how the prospective sentence could be
fashioned or applied?
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B. Whether the sentence was illegal in that lab fees and court
costs were improperly imposed upon … Appellant jointly and
severally with his co-defendant wherein all evidence and
documents relating to the materials subject to the lab
analysis only referenced the co-defendant?
Appellant’s Brief at 2 (unnecessary capitalization omitted).
We have reviewed the thorough and well-reasoned opinion issued by
the Honorable Daniel J. Brabender, Jr., of the Court of Common Pleas of Erie
County. We conclude that Judge Brabender’s opinion accurately and
thoroughly disposes of Appellant’s first issue, in which Appellant claims he
unknowingly and involuntarily entered his guilty plea because, in entering the
plea, he relied upon his counsel’s representation that he would receive a
specific sentence. See PCO at 3-8. Accordingly, we adopt Judge Brabender’s
opinion as our own on this issue.
In Appellant’s second issue, he argues that his sentence is illegal
because the sentencing court improperly ordered him to pay laboratory fees
jointly and severally with his co-defendant, where he says “all evidence and
documents relating to the materials subject to the lab analysis only referenced
the co-defendant[.]” Appellant’s Brief at 2 (unnecessary capitalization
omitted). He asserts that he should not have to pay any laboratory fee where
“his name was never found in the trash or even on the lab paperwork.” Id.
at 5.1 He states that the subject of “the … lab paperwork is exclusively the
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1 Appellant does not elaborate on nor cite to anything in the record to
corroborate this claim. However, the PCRA court explains that “[t]he
reference to the trash concerns the averment in the Information that
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co-defendant, … and thus he should be the party liable for the payment of the
lab fees as there is no legal predicate or nexus to [Appellant] relative to the
payment of that fee….” Id.2 We note that the laboratory fees amounted to
$2,354.00. See PCO at 9.
Insofar as Appellant argues that the sentencing court did not have the
authority to require him to pay the laboratory fees, he raises a legality of
sentencing claim. See Commonwealth v. Garzone, 993 A.2d 306, 316 (Pa.
Super. 2010) (recognizing that an argument that the trial court did not have
the authority to impose certain costs presents a legality of sentence claim
whereas a claim that the amount is excessive presents a discretionary aspect
of sentencing claim) (citations omitted). We acknowledge that “[t]he
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[Appellant], directly or by virtue of his complicity with [his] co-defendant…,
transported trash bags of meth production-related waste to the residence of
a third party … to dispose of them.” PCO at 3 n.11 (citation omitted).
According to the affidavit of probable cause, a forensic scientist processed the
contents of this trash. See Affidavit of Probable Cause, 3/17/2016, at 2. We
additionally discern that, although the affidavit of probable cause notes that
“[i]ndicia belonging to [the co-defendant] was found inside the garbage[,]”
see Affidavit of Probable Cause, 3/17/2016, at 2, the Commonwealth advised
the sentencing court that, “[t]here was evidence of [Appellant’s] … purchasing
Sudafed, the same kind that was found in the garbage we recovered.” N.T.
Sentencing, 3/8/2017, at 13; see also Affidavit of Probable Cause at 2
(“[T]wo boxes of Sudafed were found. [Appellant] had purchased the same
type of Sudafed…. Furthermore, a box of Wal-[it]in D 15 count was found in
the trash … which is the same that [Appellant] had purchased at Wal-
Greens….”).
2 Relying on this same reasoning, Appellant claims that he should not have to
pay “any other fines or restitution.” Appellant’s Brief at 5. However, our
review of the sentencing order does not show that the sentencing court
ordered Appellant to pay any other fines or restitution, nor does Appellant
point to where it did. We therefore do not address this argument.
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determination as to whether the trial court imposed an illegal sentence is a
question of law; our standard of review in cases dealing with questions of law
is plenary.” See id. (citations and quotation marks omitted).
Appellant offers no authority demonstrating that his sentence is illegal.
Although neither Appellant, the Commonwealth, nor the PCRA court reference
42 Pa.C.S. § 1725.3, our own research indicates that this statute addresses
the imposition of laboratory fees on defendants. It sets forth, in pertinent
part, the following:
(a) Imposition.--A person who is placed on probation
without verdict pursuant to section 17 of the act of April 14,
1972 (P.L. 233, No. 64),1 known as The Controlled
Substance, Drug, Device and Cosmetic Act, or who receives
Accelerated Rehabilitative Disposition or who pleads guilty
to or nolo contendere to or who is convicted of a crime as
defined in 18 Pa.C.S. § 106 (relating to classes of offenses)
or 75 Pa.C.S. § 1543(b)(1.1) (relating to driving while
operating privilege is suspended or revoked) or 3802
(relating to driving under influence of alcohol or controlled
substance) or 3735 (relating to homicide by vehicle while
driving under influence) or 3735.1 (relating to aggravated
assault while driving under the influence) or 3808(a)(2)
(relating to illegally operating a motor vehicle not equipped
with ignition interlock) or a violation of The Controlled
Substance, Drug, Device and Cosmetic Act shall, in
addition to any fines, penalties or costs, in every case
where laboratory services were required to prosecute
the crime or violation, be sentenced to pay a criminal
laboratory or paramedic user fee which shall include,
but not be limited to, the cost of sending a laboratory
technician or paramedic to court proceedings.
42 Pa.C.S. § 1725.3(a) (emphasis added).
Here, Appellant pled guilty to a violation of The Controlled Substance,
Drug, Device and Cosmetic Act, namely possessing phenylpropanolamine,
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phenyl acetone, methylamine, ammonium sulfate, ammonium nitrate, phenyl
acetic acid or a precursor substance with intent to unlawfully manufacture a
controlled substance, 35 P.S. § 780-113.1(a)(3). Therefore, under 42 Pa.C.S.
§ 1725.3(a), the sentencing court had the authority to impose on Appellant
the costs of laboratory fees incurred in prosecuting him.
Further, to the extent Appellant disputes the amount of the fee imposed
and the trial court’s finding a connection between him and the trash/lab work,
Appellant contests a discretionary aspect of his sentence. See Garzone,
supra. However, “[c]hallenges to the discretionary aspects of sentencing are
not cognizable under the PCRA.” See Commonwealth v. Fowler, 930 A.2d
586, 593 (Pa. Super. 2007); see also 42 Pa.C.S. § 9543(a)(2) (setting forth
the claims that are cognizable under the PCRA). Moreover, even if cognizable,
we would deem this claim waived because Appellant did not raise it at the
time of sentencing, in a post-sentence motion, or on direct appeal. See 42
Pa.C.S. § 9543(a)(3) (stating that to be eligible for PCRA relief, the petitioner
must demonstrate that the claim was not previously litigated or waived); 42
Pa.C.S. § 9544(b) (directing that “an issue is waived if the petitioner could
have raised it but failed to do so before trial, at trial, during unitary review,
on appeal or in a prior state post[-]conviction proceeding”); Commonwealth
v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (“[I]ssues challenging
the discretionary aspects of a sentence must be raised in a post-sentence
motion or by presenting the claim to the trial court during the sentencing
proceedings. Absent such efforts, an objection to a discretionary aspect of a
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sentence is waived.”) (citation and internal quotation marks omitted). Thus,
no relief is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2019
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Circulated 01/10/2019 12:01 PM
COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS
OF ERIE COUNTY, PENNSYLVANIA
v. CRIMINAL DIVISION
KYLE EDWARD LANE, PETITIONER NO. 1228 of2016
OPINION
The Appellant, Kyle Edward Lane, appeals from the Order of February 28, 2018,
dismissing the pro se Petition for Post Conviction Collateral Relief (PCRA) of June 30, 2017 and
the counseled Supplement to Motion for Post Conviction Collateral Relief of June 29, 2017.
Following a PCRA evidentiary hearing on February 27, 2018, this Court denied the PCRA on
February 28, 2018 for reasons placed on the record at the PCRA hearing. This Opinion is in
response thereto. Because the appeal is without merit, it must be dismissed.
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