Com. v. Poust, C.

• Court: Superior Court of Pennsylvania
• Decided: October 3, 2018
• Docket: 152 MDA 2018
• Status: Unpublished

Opinion

J-S45041-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : CRAIG LAVOY POUST : : Appellant : No. 152 MDA 2018

Appeal from the Judgment of Sentence December 6, 2017 in the Court of Common Pleas of Snyder County Criminal Division at No.: CP-55-CR-0000106-2016

BEFORE: PANELLA, J., OTT, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.: FILED OCTOBER 03, 2018

Appellant, Craig Lavoy Poust, appeals from the judgment of sentence

imposed on December 6, 2017, after his non-jury conviction of manufacture

of marijuana, possession with intent to deliver (PWID) marijuana, possession

of marijuana, possession of a firearm by an individual convicted of a prohibited

offense, prohibited offensive weapons, and possession of drug paraphernalia.1

Specifically, he challenges the discretionary aspects of his sentence. We

affirm.

We take the factual and procedural history in this matter from our

review of the certified record, the trial court’s December 29, 2016 and April

16, 2018 opinions, and this Court’s September 21, 2017 opinion following ____________________________________________

1 See 35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), 18 Pa.C.S.A. § 6105(a)(1), 18 Pa.C.S.A. § 908(a), and 35 P.S. § 780-113(a)(32), respectively. ____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S45041-18

Appellant’s initial direct appeal. (See Commonwealth v. Poust, 178 A.3d

181 (Pa. Super. 2017) (unpublished memorandum)).

On March 28, 2016, the Commonwealth filed an information charging

Appellant with unlawful manufacture of marijuana, PWID marijuana,

conspiracy to manufacture or possess marijuana, possession of marijuana,

unlawful possession of a firearm, prohibited offensive weapon, and possession

of drug paraphernalia. After Appellant waived his right to a jury trial, a one-

day non-jury trial commenced on October 11, 2016.

At trial, the Commonwealth called Pennsylvania State Troopers Brent

Bobb and Chad Schultz, who testified that, while executing a search warrant,

they observed a marijuana grow operation containing twenty-one marijuana

plants in different sizes. (See Trial Court Opinion, 12/29/16, at 2-3).

The Troopers took the plants to the [c]rime [l]ab where an analysis was performed on some but not all of the plants. An expert from the Pennsylvania [c]rime [l]ab testified that of the plants she tested they all tested positive for marijuana. She did testify that she did not test all of the plants, however the plants were all seized at the same location, had the same physical appearance, were located in an obvious grow room, were at various stages of growth and in all respects identical to one another.

(Id. at 3-4).

At the conclusion of trial, the court found Appellant not guilty of

conspiracy, and guilty on all other counts. On October 13, 2016, the court

sentenced Appellant without a Presentence Investigation Report (PSI).

Appellant appealed the sentence to this Court, which affirmed the convictions,

but vacated the judgment of sentence and remanded to the trial court because

-2- J-S45041-18

it had imposed its sentence without a PSI. (See Poust, supra 2017 WL

4177041, at **1, 7).

On December 6, 2017, the trial court resentenced Appellant with the

benefit of a PSI, to the following terms of imprisonment: Count 1,

manufacturing marijuana, not less than thirty nor more than sixty months;

Count 2, PWID marijuana, not less than thirty nor more than sixty months;

Count 4, possession of marijuana, not less than six nor more than twelve

months; Count 5, possession of firearm, not less than sixty nor more than

one-hundred twenty months; Count 6, prohibited offensive weapon, not less

than sixteen nor more than thirty-six months; and Count 7, possession of drug

paraphernalia, not less than six nor more than twelve months.2 Appellant

filed a post-sentence motion, which the trial court denied. This timely appeal

followed.3

Appellant raises two questions on appeal:

1. Did error occur at sentencing where the [t]rial [c]ourt referenced Appellant’s prior record as a negative factor, mistakenly claiming that Appellant killed someone?

____________________________________________

2 The sentences in Counts 1, 5 and 6, were imposed consecutively; the sentences in Counts 2, 4, and 7 were imposed concurrently. Thus, the aggregate sentence imposed was not less than 106, nor more than 216 months (not less than eight years and ten months, nor more than eighteen years) of incarceration.

3 Pursuant to the trial court’s order, Appellant filed a concise statement of errors complained of on appeal on February 8, 2018. The trial court entered its opinion on April 16, 2018. See Pa.R.A.P. 1925.

-3- J-S45041-18

2. Did error occur where Appellant was convicted at trial for possessing [twenty-one] live marijuana plants, but the majority of said samples were not tested?

(Appellant’s Brief, at 5).

Appellant’s issues both challenge the discretionary aspects of his

sentence.4

Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test:

[W]e 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 sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal defect, [see] 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, [see] 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (case

citations omitted).

The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. A substantial ____________________________________________

4 Although Appellant frames his second issue as a challenge to the sufficiency of the evidence to support his conviction, the number of plants is not relevant to a conviction of PWID or manufacturing marijuana. The number of plants is only used to calculate the Offense Gravity Score (OGS) used at sentencing. (See Poust, supra at *3). It is well settled that Appellant’s challenge to the OGS is a challenge to the discretionary aspects of his sentence. See Commonwealth v. Williams, 151 A.3d 621, 625 (Pa. Super. 2016) (citation omitted). Notably, this Court’s memorandum on Appellant’s first direct appeal clearly states “[s]ince the number of plants is not relevant to the sufficiency of the evidence for any of Appellant’s convictions, but rather the offense gravity score . . . we defer discussion of this issue.” (Poust, supra at *3).

-4- J-S45041-18

question exists only when the appellant advances a colorable argument that the sentencing judge’s actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.

As to what constitutes a substantial question, this Court does not accept bald assertions of sentencing errors. An appellant must articulate the reasons the sentencing court’s actions violated the sentencing code.

Id. (citations and quotation marks omitted).

In his first issue, Appellant claims that the trial court erred and abused

its discretion in imposing its sentence because it construed Appellant’s prior

conviction for involuntary manslaughter as having killed someone. (See

Appellant’s Brief, at 8-11). Appellant filed a timely notice of appeal, preserved

his issue in a post-sentence motion for relief, and included a Rule 2119(f)

statement in his brief. However, his claim that the trial court improperly

referred to his prior conviction for involuntary manslaughter as having killed

someone, rather than having caused the death of someone, does not advance

a colorable argument that the judge’s actions were inconsistent with the

sentencing code or contrary to the fundamental norms of the sentencing

process. (See id. at 8); Moury, supra at 170. Accordingly, we conclude

that Appellant has failed to invoke the jurisdiction of this Court by raising a

substantial question.5 ____________________________________________

5Moreover, even if Appellant had raised a substantial question, he has waived his claim for failure to develop it. See Pa.R.A.P. 2101, 2119(a)-(b). Appellant provides no relevant legal citations to support his contention that the trial court’s reference to his prior conviction as killing, rather than having caused

-5- J-S45041-18

In his second issue, Appellant claims that the Commonwealth failed to

prove that he possessed twenty-one marijuana plants. (See Appellant’s Brief,

at 11-13). Appellant framed this issue as a challenge to the sufficiency of the

evidence rather than the discretionary aspects of his sentence. (See supra,

at 4 n.4). Therefore, he did not comply with Rule 2119(f)’s requirement that

he include a statement of reasons relied upon for appeal with respect to this

issue, nor did he attempt to establish that his claim raised a substantial

question. Thus, we could find waiver for Appellant’s failure to articulate this

claim in his Rule 2119(f) statement, or develop an argument that the court

erred in imposing sentence based on an inaccurate OGS. See Pa.R.A.P.

2119(a)-(b), (f). However, because a claim that the trial court applied an

incorrect OGS does raise a substantial question, we will review the merits of

his claim. See Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super.

2012), appeal denied, 75 A.3d 1281 (Pa. 2013); see also Commonwealth

v. Saranchak, 675 A.2d 268, 277 n.18 (Pa. 1996), cert. denied, 519 U.S.

1061 (1997) (holding that court may overlook failure to comply with Rule

2119(f) where appellee fails to object and substantial question is evident from

appellant’s brief).

Our review of discretionary aspects of sentencing claims implicates the following principles:

the death of someone, constitutes an abuse of discretion. (See Appellant’s Brief, at 10-11). Accordingly, Appellant’s challenge to the discretionary aspects of his sentence would be waived.

-6- J-S45041-18

[T]he proper standard of review when considering whether to affirm the sentencing court’s determination is an abuse of discretion. . . . [A]n abuse of discretion is more than a mere error of judgment; thus, a sentencing court will not have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. In more expansive terms, our Court recently offered: An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill- will, or such lack of support so as to be clearly erroneous.

Moury, supra at 169-70 (citation omitted).

Section 303.15 of the Sentencing Code sets forth the OGS for violations

of 35 P.S. § 780-113(a)(30), manufacture and PWID marijuana. See 204

Pa.Code § 303.15. Specifically, it notes that either manufacture or PWID

marijuana, (twenty-one to fifty plants), has an OGS of 7, whereas

manufacture or PWID marijuana, (ten to twenty plants), has an OGS of 5.

In the instant case, during resentencing on December 6, 2017, the trial

court noted that it received a PSI, which calculated Appellant’s prior record

score as 5, and the OGS for Counts 1 (manufacture of marijuana) and 2 (PWID

marijuana) as a 7; thus resulting in a standard range of thirty months,

maximum of sixty months for both counts. (See N.T. Sentencing, 12/06/17,

at 2; see also id. at 2-3 (Appellant did not have any additions or corrections

to PSI or guideline form as described)).

At trial, Troopers Bobb and Schultz testified that they collected twenty-

one marijuana plants. (See N.T. Trial, 10/11/16, at 17, 44). The trial court

-7- J-S45041-18

found that “[a]ll the plants involved were located at the same place, in a

sophisticated grow room. . . . All the plants looked identical and were at

various stages of growth. The Commonwealth appropriately tested several of

the plants and confirmed that all of the tested plants were marijuana.” (Trial

Ct. Op., 12/29/16, at 6). Thus, the court concluded that “[b]ased on these

facts, the Commonwealth has circumstantially established beyond a

reasonable doubt that all [twenty-one] plants were marijuana.” (Id.).

Upon review, we conclude that the trial court’s calculation of the OGS of

7, which would apply to convictions where at least twenty-one plants were

manufactured or possessed, was supported by the record and was neither an

error of law or an abuse of its discretion. See Moury, supra at 169-70.

Accordingly, Appellant’s second issue does not merit relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/03/2018

-8-