Commonwealth v. Dickson

918 A.2d 95, 591 Pa. 364, 2007 Pa. LEXIS 749
CourtSupreme Court of Pennsylvania
DecidedMarch 29, 2007
Docket7 EAP 2005
StatusPublished
Cited by121 cases

This text of 918 A.2d 95 (Commonwealth v. Dickson) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Dickson, 918 A.2d 95, 591 Pa. 364, 2007 Pa. LEXIS 749 (Pa. 2007).

Opinions

OPINION

Justice BAER.

We are asked to consider whether the sentencing enhancement codified at 42 Pa.C.S. § 9712, which imposes a mandatory sentence enhancement on a person who visibly possesses a firearm or firearm replica during the commission of a crime of violence,1 applies to an unarmed co-conspirator to the underlying crime where his accomplice brandishes a firearm during the commission of the offense. Before reaching the merits, however, we must determine whether Appellant waived his challenge to § 9712 by failing to raise it first in the trial court. We find that Appellant preserved the issue raised herein in the lower courts, and that it therefore is ripe for our review. We also hold that the Superior Court has erred in applying the § 9712 sentencing enhancement to unarmed co-conspirators. Thus, we reverse.

I. Background

The facts underlying Appellant’s conviction are neither complicated nor subject to material dispute. The afternoon of April 21, 2001, found Derek Cunningham, the victim, speaking with Tiara Van Leer. Cunningham recently had sold Van Leer a car; presently, she was asking Cunningham to take back the [368]*368car and refund the sales price. Cunningham agreed to take back the car, but offered to refund only $250 of the $300 sales price.

Van Leer’s cousin Ravah Dickson (Appellant), who stood nearby, expressed the view that Cunningham should refund Van Leer more than $250 of the sales price. Appellant then left the scene and returned a few minutes later with co-defendant William Brown and one Bruce Veney, also Van Leer’s cousin.2 Soon after their return, Appellant restrained Ruffin in a bear hug while Brown pulled a gun, placed it against Cunningham’s head, and demanded all of Cunningham’s money and the keys to the car. Cunningham surrendered $256 and the keys. Appellant warned Cunningham not to call the police, then he and the others left the scene.

Appellant and Brown were arrested and tried together before a jury in the Court of Common Pleas of Philadelphia County. Brown was convicted of robbery and criminal conspiracy; 3 Appellant was convicted of conspiracy but acquitted of robbery.

On March 25, 2002, the trial court convened a sentencing hearing. There, Appellant, noting that the original indictment was couched in terms of theft, robbery, and conspiracy to commit same, and further pointing out that he was convicted of conspiracy but acquitted of robbery, argued that his conspiracy offense should be graded as a misdemeanor since the jury verdict was ambiguous regarding to which predicate offense (ie., theft or robbery) the conspiracy conviction applied. The Commonwealth disagreed — and the trial court shared its view — that the charge of conviction, criminal conspiracy, was criminal conspiracy to commit robbery.4 See [369]*369Notes of Testimony (N.T.), 3/25/02, at 5 (“THE COURT: ... The jury found you guilty of Conspiracy to Rob ... ”).

Appellant next called the court’s attention to an Apprendi motion then pending.5 He argued that because the Commonwealth need only prove by a preponderance of the evidence that the mandatory minimum sentence applies, § 9712 violates Apprendi’'s requirement that all substantive elements of an offense be proved before a jury beyond a reasonable doubt.

Before the trial court could interject, Appellant then argued that application of the mandatory minimum “takes away the discretion of the court to impose a lesser sentence.” N.T., 3/25/02, at 4. Appellant proceeded to argue, based on the differences between Appellant’s and co-defendant’s conduct, that Appellant’s case warranted precisely the lesser sentence precluded by application of the § 9712 mandatory minimum. The court cut Appellant’s counsel off, however, foreclosing further argument:

I think case law is supportive of the Commonwealth’s position. I have no discretion.
Mr. Dixon, on bill of information 0022, January Term 2002, where the jury found you guilty of Conspiracy to Rob, this court sentences you to five to ten years in a state correctional institution, [and] 207 dollars cost[s] of court.

N.T., 3/25/02, at 5. Appellant’s judgment of sentence, therefore, was precisely the minimum sentence permissible given the trial court’s reading of the law to require imposition of the § 9712(a) mandatory minimum sentence of five years.

On direct appeal, Appellant contested the validity of the application of § 9712(a) to an unarmed co-conspirator. The Superior Court, noting that it repeatedly has rejected this argument, see, e.g., Commonwealth v. Chiari, 741 A.2d 770 (Pa.Super.1999), and that this Court has denied allowance of appeal of these rulings, see, e.g., Commonwealth v. Walker, [370]*370886 Pa.Super. 100, 562 A.2d 378 (1989), appeal denied, 525 Pa. 618, 577 A.2d 889 (1990), declined Appellant’s invitation to overturn its prior precedent and affirmed Appellant’s judgment of sentence. This appeal followed.

II. Waiver

Preliminarily, we must determine whether Appellant failed in the trial court to raise his challenge to the application of 42 Pa.C.S. § 9712, and, if so, whether this failure waived any later challenge on appeal. The Superior Court disregarded the first part of this inquiry, and summarily disposed of the latter part with a single sentence: “As Appellant’s claim implicates the legality of his sentence, Appellant may appeal as of right.” Super. Ct. Slip Op. at 2 (citing Commonwealth v. Eddings, 721 A.2d 1095, 1098 (Pa.Super.1998)). Were the latter proposition unproblematic, we might well decide similarly; if the sentence clearly implicates the legality of sentence, whether it was properly preserved below is of no moment, as a challenge to the legality of sentence cannot be waived. See, e.g., Commonwealth v. Aponte, 579 Pa. 246, 855 A.2d 800, 802 n. 1 (2004). While this Court is clear on the non-waivability of challenges to sentences based upon their legality, we continue to wrestle with precisely what trial court rulings implicate sentence legality. See, e.g., McCray v. Pennsylvania Dep’t of Corrs., 582 Pa. 440, 872 A.2d 1127, 1138 (2005) (Saylor, J., concurring) (noting “prevailing uncertainty concerning the breadth of the legality-of-sentence exception to general principles of waiver and preclusion”).

The Commonwealth contends that Appellant failed to preserve the argument raised before this Court — -that § 9712 in plain terms cannot apply to enhance the sentence of an unarmed co-conspirator. Rather, it argues, at sentencing “[Appellant] objected to the imposition of the mandatory minimum on the grounds that the jury had supposedly convicted him of conspiracy to commit theft, to which the mandatory minimum does not apply, and that the sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 [371]*371L.Ed.2d 435 (2000).” Brief for Appellee at 4 (record citation and footnotes omitted).

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Bluebook (online)
918 A.2d 95, 591 Pa. 364, 2007 Pa. LEXIS 749, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-dickson-pa-2007.