J-A10029-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JASON R. BALDWIN
Appellant No. 1643 EDA 2016
Appeal from the Judgment of Sentence dated April 13, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0009629-2012
BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SOLANO, J.: FILED OCTOBER 24, 2017
Appellant, Jason R. Baldwin, appeals from the judgment of sentence
imposed after he pled guilty to burglary, attempted burglary, and criminal
conspiracy.1 We affirm in part and vacate in part.
The trial court recited the factual and procedural background of this
case as follows:
[Appellant] engaged in seven separate residential
burglaries over the course of several days in July 2012 across
Montgomery, Berks and Chester Counties. He, along with at
least one co-conspirator, succeeded in stealing valuables from
the residences, with the exception of one incident when the
attempt to burglarize a residence failed.
[Appellant] was charged with more than 40 counts related
to the incidents. He ultimately agreed to enter an open guilty
plea to one count of burglary, one count of criminal conspiracy to
commit burglary and one count of attempted burglary. In
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1 18 Pa.C.S. §§ 3502(a), 901(a), and 903(a)(1), respectively.
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exchange, the Commonwealth agreed to nol pros the remaining
charges and to a cap of four to eight years of incarceration.
At a subsequent sentencing hearing, the Commonwealth
advised this court of an error in the Pre-Sentence Investigation
Report related to the calculation of [Appellant’s] prior record
score. [Appellant] did not object to the recalculation of the
standard-ranges of 24 to 30 months in prison for the burglary
offense and 21 to 27 months in prison each for the attempted
burglary and conspiracy offenses. The Commonwealth also
informed this court, without objection, that the burglary and
attempted burglary convictions did not merge for purposes of
sentencing because the offenses stemmed from different
residences. Finally, the Commonwealth and [Appellant] agreed
to the amount of restitution for the seven burglaries.
This court sentenced [Appellant] on April 13, 2016, to two
to four years in prison for the burglary conviction and a
consecutive term of two to four years in prison for the attempted
burglary conviction. [Appellant] received a sentence of 10 years
of consecutive probation for the conspiracy conviction. This
court also signed the agreed-upon restitution sheets submitted
by the Commonwealth.
[Appellant] filed a pro se “Motion for Reconsideration” on
April 22, 2016, seeking to have his sentences run concurrently.
This court denied the motion in an Order docketed on May 9,
2016.
Trial Court Opinion, 8/15/16, at 1-3 (citations to notes of testimony
omitted). Appellant filed this timely appeal. He presents three issues for
our review:
1. Did the [trial court] err and/or abuse his discretion in failing
to merge all appropriate charges?
2. Did the [trial court] err and/or abuse his discretion by
imposing a sentence without using the correct prior record
score?
3. Did the [trial court] err and/or abuse his discretion by failing
to order the correct amount of restitution?
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Appellant’s Brief at 2-3.
Merger
In his first issue, Appellant argues that the court erred by failing to
merge his sentences for conspiracy to commit burglary and attempted
burglary.2 Appellant’s Brief at 5. Appellant cites 18 Pa.C.S. § 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.
18 Pa.C.S. § 906 (emphasis added). Appellant acknowledges that he
committed multiple crimes, stating, “there were seven burglaries and one
attempted burglary, all of which involved a coconspirator.” Appellant’s Brief
at 9. Appellant argues that he was wrongly sentenced “to two inchoate
crimes” because “the conduct was designed to commit or to culminate in the
commission of the same crime, namely burglary, [and] the sentences
imposed on the attempted burglary and conspiracy conviction must merge
for sentencing purposes.” Id. at 5, 9. We disagree.
In Commonwealth v. Gallagher, 491 A.2d 196 (Pa. Super. 1985),
we explained:
A defendant may not be convicted of more than one
inchoate offense designed to commit or to culminate in the
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2 A claim that crimes should have merged for sentencing purposes raises a
challenge to the legality of the sentence, which cannot be waived.
Commonwealth v. Williams, 980 A.2d 667, 672 (Pa. Super. 2009),
appeal denied, 990 A.2d 730 (Pa. 2010).
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commission of the same crime. 18 Pa.C.S. § 906. . . .
[T]he purpose of Section 906 [i]s to eliminate the conviction for
more than one offense in the preparation to commit the
objective, that is, where the offenses were designed to
culminate in the commission of only one crime.
491 A.2d at 198 (bolded emphasis added, italicized emphasis in original,
citations and quotation marks omitted). It is well-settled that convictions do
not 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. See 42 Pa.C.S. § 9765;
Commonwealth v. Raven, 97 A.3d 1244, 1249 (Pa. Super. 2014), appeal
denied, 105 A.3d 736 (Pa. 2014). For example, conspiracy and attempted
burglary were found to merge in Commonwealth v. Brown, 486 A.2d 441,
443-445 (Pa. Super. 1985), where the appellant participated in a single
scheme to burglarize a single house.
Here, although Appellant’s conduct related to commission of the same
type of crime (burglary), he participated in seven burglaries of seven
different houses and one additional attempted burglary of an eighth house. 3
He pled guilty to conspiracy and was sentenced to 10 years’ probation under
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3 Appellant was sentenced to 2-4 years’ incarceration under Count 1 for the
crime of burglary and 2-4 years’ incarceration under Count 8 for the crime of
attempted burglary. N.T., 4/13/16, at 22-23. At the guilty plea hearing,
Appellant expressly acknowledged that with regard to Count 8, he
additionally “attempted without success to break into” another property “to
commit a burglary.” N.T., 7/23/15, at 3, 7, 9. The crimes for which
Appellant was sentenced under Counts 1 and 8 therefore clearly were
different and do not merge. We do not understand Appellant to argue
otherwise.
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Count 9 only with respect to his commission of the seven successfully
completed burglaries.4 The Criminal Information as to Count 9 states that
Appellant, “with the intent of promoting or facilitating the commission of the
crime(s) of BURGLARY[,] unlawfully and feloniously agreed with GREGORY
LEE EAGLE that they or one of more of them would engage in conduct which
would constitute such crime(s), and did an overt act in furtherance thereof.”
Criminal Information, 2/1/13, at 2. Count 9 thus addressed Appellant’s
conspiracy to commit the completed “crime(s) of BURGLARY,” and not the
different crime of attempted burglary that was separately charged in Count 8
of the Criminal Information. Appellant entered his guilty plea as follows:
[COMMONWEALTH]: [Appellant], you understand by pleading
guilty you are admitting certain things about your case are true?
[APPELLANT]: Yes.
[COMMONWEALTH]: Specifically, sir, by pleading guilty you
are admitting that between July 13th and July 16th of 2012 across
Montgomery, Berks and Chester County you engaged, sir, in
seven separate burglaries, which you broke into residential
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4 Appellant does not contend that his sentence for the conspiracy conviction
under Count 9 merges with the sentence for the completed burglary that he
conspired to commit and for which he was sentenced under Count 1. It is
well-settled that “the crime of conspiracy does not merge with the
substantive offense that is the subject of the conspiracy.” Commonwealth
v. Jacquez, 113 A.3d 834, 838 (Pa. Super. 2015). As our Supreme Court
has stated, “the law has always considered criminal conspiracy and the
completed substantive offense to be separate crimes.” Commonwealth v.
Miller, 364 A.2d 886, 887 n.5 (Pa. 1976) (referencing the rationale of the
United States Supreme Court in Iannelli v. United States, 420 U.S. 770,
778 (1975), that “collective criminal agreement — partnership in crime —
presents a greater potential threat to the public than individual delicts” and
“the danger which a conspiracy generates is not confined to the substantive
offense which is the immediate aim of the enterprise”).
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properties with the intent and actually successfully intended to
steal various valuables from inside?
[APPELLANT]: Yes.
[COMMONWEALTH]: As well as conspiring with at least one
other person to effectuate these crimes?
[APPELLANT]: Yes.
N.T., 7/23/15, at 9 (emphasis added). Accordingly, Appellant’s argument
that his conviction of conspiracy should have merged with his conviction of
attempted burglary fails because Appellant pled guilty to conspiracy to
commit the completed crime of burglary with respect to seven houses, which
were separate from an eighth house which Appellant unsuccessfully
attempted to burglarize.
Our Supreme Court, in recently holding that Section 906 does not bar
multiple convictions for the same inchoate crime, noted that “Pennsylvania
Courts have applied this provision in situations where a defendant commits
two or three inchoate offenses while preparing to commit a single
underlying crime.” Commonwealth v. Kingston, 143 A.3d 917, 923 (Pa.
2016) (emphasis added). In dicta, the Court stated:
It is not difficult to imagine why the General Assembly would
proscribe multiple convictions for distinct inchoate offenses in
circumstances where a defendant’s conduct was designed to
culminate in the commission of a single underlying crime.
Id. at 925 (emphasis added). In the present case, Appellant admitted to,
and was convicted of conspiracy to commit, burglary relating to the seven
successful and completed burglaries, and also admitted to attempting to
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burglarize an eighth house. Accordingly, Appellant’s merger argument lacks
merit.
Prior Record Score
Appellant’s next issue, concerning the court’s calculation of his prior
record score, challenges the discretionary aspects of Appellant’s sentence.5
The entry of an open guilty plea does not preclude a petition for allowance of
an appeal to this Court of the discretionary aspects of a sentence
subsequently imposed. Commonwealth v. Luketic, 162 A.3d 1149, 1159
(Pa. Super. 2017), citing Commonwealth v. Dalberto, 648 A.2d 16, 20
(Pa. Super. 1994), appeal denied, 540 Pa. 594, 655 A.2d 983, cert.
denied, 516 U.S. 818, 116 S.Ct. 75, 133 L.Ed.2d 34 (1995). However,
there is no automatic right to appeal such an issue, and appellate review
depends on whether the appellant satisfies the requirements for a petition
by allowance. Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa.
Super. 2014) (citation omitted), appeal denied, 95 A.3d 275 (Pa. 2014);
Commonwealth v. Haynes, 125 A.3d 800, 806–07 (Pa. Super. 2015),
appeal denied, 140 A.3d 12 (Pa. 2016). We will exercise our discretion to
consider such a petition only if (1) the appellant has filed a timely notice of
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5 Challenges concerning a prior record score calculation implicate the
discretionary aspects of sentencing. See Commonwealth v. Sanchez, 848
A.2d 977, 986 (Pa. Super. 2004) (holding that a miscalculation of the prior
record score “constitutes a challenge to the discretionary aspects of [a]
sentence”); see also Commonwealth v. O'Bidos, 849 A.2d 243, 253 (Pa.
Super. 2004) (same), appeal denied, 860 A.2d 123 (Pa. 2004).
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appeal; (2) he has preserved the sentencing issue at the time of sentencing
or in a motion to reconsider and modify his sentence; (3) he presents the
issue in a properly framed statement in his brief under Rule 2119(f) of the
Rules of Appellate Procedure pursuant to Commonwealth v. Tuladziecki,
522 A.2d 17 (Pa. 1987); and (4) in the words of Section 9781(b), “it
appears that there is a substantial question that the sentence imposed is not
appropriate under this chapter.” See Haynes, 125 A.3d at 807;
Commonwealth v. Zelinski, 573 A.2d 569, 574-75 (Pa. Super. 1990),
appeal denied, 593 A.2d 419 (Pa. 1990).
Instantly, Appellant filed a timely notice of appeal, preserved his claim
that his sentence was excessive in a post-sentence motion, and included a
proper Rule 2119(f) statement in his appellate brief. Appellant’s Brief at 6.
In addition, he has presented a substantial question. Commonwealth v.
Janda, 14 A.3d 147, 165 (Pa. Super. 2011) (improper calculation of prior
record score raises substantial question). Nonetheless, in his argument,
Appellant simply and generally avers – without more – that the court applied
the wrong prior record score because “the score before sentencing was a ‘3’
and then it was changed to a ‘5.’” Appellant’s Brief at 11. Appellant does
not explain why the prior record score of 5 was incorrect. See id. His
argument therefore fails to provide us with a sufficient explanation to enable
full appellate review. See Commonwealth v. Cornelius, 856 A.2d 62, 77
(Pa. Super. 2004) (declining to review claim where brief contains limited
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explanation and development of argument), appeal denied, 895 A.2d 548
(Pa. 2006).
Our review of the record at sentencing reveals the following:
THE COURT: All right. Do [counsel] have any
additions or corrections?
[COMMONWEALTH]: I do have a correction . . .
THE COURT: Yes, is there another mistake? . . .
[COMMONWEALTH]: I believe that his prior record score is a
5. They had it listed as a 3.
N.T., 4/13/16, at 3. Neither Appellant nor his counsel objected or otherwise
responded to this. Nor did they object when subsequently, in a discussion of
standard range sentences, the Commonwealth reiterated, “again, . . . prior
record score of 5, . . .” Id. at 5. Although Appellant filed a post-sentence
motion claiming that his sentence was excessive, that motion did not
specifically discuss any issue relating to his prior record score. Because
Appellant did not preserve this issue in the trial court, it is waived.
Accordingly, on this record, we find no merit to Appellant’s second
issue concerning the calculation of his prior record score.
Restitution
In his third issue, Appellant challenges the court’s imposition of
restitution, and asserts that it “was an illegal sentence” because “the record
fails to contain the factual basis for the amount of restitution ordered.”
Appellant’s Brief at 14. Appellant states that his issue is “not only . . . the
amount of restitution, but also the authority of the court to order
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restitution.” Id. at 12. Appellant contends “that the lower court imposed an
illegal sentence when it ordered him to pay restitution to the victim in excess
of what the victim’s [sic] lost.” Appellant’s Brief at 14.
Both the trial court and the Commonwealth reject Appellant’s
argument on the basis that Appellant stipulated to the amount of restitution
at the sentencing hearing. See Trial Court Opinion, 8/15/16, at 5;
Commonwealth Brief at 8. Our review of the record discloses that there was
no discussion of restitution at Appellant’s guilty plea hearing, N.T., 7/23/15,
at 1-12, and at sentencing, the only mention of restitution was the following:
[COMMONWEALTH]: Judge, at the time of sentencing,
he agreed that he would stipulate to the restitution for the seven
burglaries he is alleged to have committed. And I have
submitted restitution sheets to that effect for your signature and
I have reviewed them with [Appellant’s counsel].
THE COURT: Do you agree with that, [counsel]?
[APPELLANT’S COUNSEL]: That is correct, Your Honor.
N.T., 4/13/16, at 6. In imposing Appellant’s sentence, the court added,
“[Appellant] is to pay the cost of prosecution and restitution as indicated on
the attached stipulated restitution sheets.” Id. at 22. However, the amount
of restitution was never stated by anyone on the record, and our review of
the certified record reveals that it contains no “stipulated restitution sheets.”
In a recent en banc opinion in which this Court reviewed the propriety
of a restitution award, we explained:
In the context of criminal proceedings, an order of restitution is
not simply an award of damages, but, rather, a sentence. An
appeal from an order of restitution based upon a claim that a
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restitution order is unsupported by the record challenges the
legality, rather than the discretionary aspects, of sentencing. The
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.
...
The court is required to specify the amount of restitution at
sentencing, but may modify its order at any time provided that it
states its reasons for any modification on the record.
Commonwealth v. Holmes, 155 A.3d 69, 78 (Pa. Super. 2017) (en banc)
(quoted citations omitted).6 The Commonwealth must prove the amount of
restitution to be ordered:
It is the Commonwealth's burden of proving its entitlement to
restitution. Commonwealth v. Boone, 862 A.2d 639, 643 (Pa.
Super. 2004) (stating that the amount of restitution must be
supported by the record). When fashioning an order of
restitution, the lower court must ensure that the record contains
the factual basis for the appropriate amount of restitution. The
dollar value of the injury suffered by the victim as a result of the
crime assists the court in calculating the appropriate amount of
restitution. The amount of the restitution award may not be
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6 We also stated in Holmes:
When a victim suffers injury to person or property, a sentencing
court is mandated under [18 Pa.C.S. §] 1106(a) to enter an
order of restitution. Restitution under Section 1106(a), as part
of a sentence, is penal in character and is imposed for losses for
which a defendant has been held criminally accountable. When
restitution is issued under Section 1106(a), a sentencing court is
obligated to order full restitution regardless of the current
financial resources of a defendant. 18 Pa.C.S.A. § 1106(c)(1)(i).
Once an order of restitution has been made as part of a
defendant’s sentence under Section 1106(a), it is enforceable
until paid.
155 A.3d at 86 (Pa. Super. 2017) (case citations omitted).
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excessive or speculative. It is well-settled that “[a]lthough it is
mandatory under section 1106(c) to award full restitution, it is
still necessary that the amount of the ‘full restitution’ be
determined under the adversarial system with considerations of
due process.” Commonwealth v. Ortiz, 854 A.2d 1280, 1282
(Pa. Super. 2004).
Commonwealth v. Atanasio, 997 A.2d 1181, 1183 (Pa. Super. 2010)
(some citations omitted).
Here, it appears that the amount of restitution was provided to the
court in “restitution sheets” at the time of sentencing, but that those
“sheets” were never placed in the record. The court never specified the
amount of restitution at sentencing, and the only restitution figure before us
— $115,545.72 — is the amount stated by Appellant in his brief. We
therefore are constrained to conclude that, despite the assent of Appellant’s
counsel at sentencing, the record before us does not support the imposition
of restitution. Accordingly, we vacate the restitution portion of Appellant’s
sentence, and remand for further proceedings to ensure the proper
imposition of restitution. At those proceedings, the Commonwealth may
introduce into the record the “restitution sheets” that it contends were used
at Appellant’s sentencing.
Judgment of sentence affirmed in part and vacated in part consistent
with this memorandum. Case remanded with instructions. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/2017
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