Com. v. Griffin, T. , 149 A.3d 349 ( 2016 )

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2016 PA Super 224COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYRICE GRIFFIN
Appellant No. 241 EDA 2016
Appeal from the Judgment of Sentence December 3, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0008440-2014
CP-46-CR-0009241-2013
BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED OCTOBER 18, 2016
Appellant Tyrice Griffin appeals from the judgment of sentence entered
by the Court of Common Pleas of Montgomery County after Appellant was
convicted of three counts each of robbery, conspiracy, firearms not to be
carried without a license, and person not to possess firearms.1 Appellant
contends that the trial court erred in imposing consecutive mandatory
minimum sentences for his multiple robbery and conspiracy convictions
pursuant to the second-strike provision of Pennsylvania’s recidivist
sentencing statute. In addition, Appellant argues the sentencing court
abused its discretion in imposing the consecutive sentences. We affirm.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 3701(a)(1)(ii), 903(a)(1), 6106(a)(1), and 6105(a)(1),
respectively.
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Appellant and his co-defendant, Carlos Garcia, were charged in
connection with three armed robberies committed on October 8, 2013,
October 12, 2013 and November 4, 2013, respectively, where Appellant and
Garcia held up restaurants and bars located in Lancaster, Cumberland, and
Montgomery Counties. The Montgomery County District Attorney’s Office
received permission from the Lancaster and Cumberland District Attorneys
to prosecute Appellant for the robberies committed in the three counties.
Appellant was charged with the aforementioned offenses in two
separate bills that were subsequently consolidated for trial. On June 12,
2015, a jury convicted Appellant of three counts each of robbery, conspiracy,
and firearms not to be carried without a license. As the parties agreed to
have a bifurcated trial in which Appellant waived his right to a jury on select
charges, the trial court then convicted Appellant of three counts of person
not to possess a firearm. Prior to sentencing, the Commonwealth notified
Appellant of its intent to seek mandatory sentences under Pennsylvania’s
recidivism statute (42 Pa.C.S. § 9714 – sentences for second and
subsequent offenses).
On December 3, 2015, the trial court held a sentencing hearing at
which the parties agreed that Appellant was subject to the second-strike
offender portion of Section 9714 based on Appellant’s prior third-degree
murder conviction. As such, the trial court imposed six second-strike
mandatory minimum sentences of ten to twenty years imprisonment for
Appellant’s robbery and conspiracy convictions. All six sentences were set to
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run consecutively. The trial court imposed no further penalty for the
firearms convictions. As such, Appellant received an aggregate sentence of
60 to 120 years’ imprisonment.
On December 11, 2015, Appellant filed a post-sentence motion which
the trial court denied on December 16, 2015. Appellant filed a notice of
appeal on January 14, 2016. Appellant complied with the trial court’s
direction to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).
Appellant raises two issues for our review:
I. Whether the trial court erred in imposing separate
consecutive “second strike” sentencing enhancements for
each of the offense of conspiracy and each of the
underlying crimes which were the object of that
conspiracy?
II. Whether the sentencing court abused its discretion in
imposing an aggregate sence [sic] of sixty to one hundred
an [sic] twenty years sentence a conspiracy to (10) year
sentences for each “crime of violence” arising out of the
same criminal episode or transaction?
Appellant’s Brief, at 5 (verbatim).
Appellant asserts that the trial court erred in imposing multiple
second-strike sentencing enhancements for his convictions of robbery and
conspiracy to commit robbery. Section 9714 of the Sentencing Code
provides, in relevant part:
(a) Mandatory sentence.
(1) Any person who is convicted in any court of this
Commonwealth of a crime of violence shall, if at the time of the
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commission of the current offense the person had previously
been convicted of a crime of violence, be sentenced to a
minimum sentence of at least ten years of total confinement,
notwithstanding any other provision of this title or other statute
to the contrary. Upon a second conviction for a crime of
violence, the court shall give the person oral and written notice
of the penalties under this section for a third conviction for a
crime of violence ...
42 Pa.C.S. § 9714(a)(1).
In a recent decision in Commonwealth v. Fields, --- Pa. ---, 107
A.3d 738 (2014), the Supreme Court interpreted the language of Section
9714(a)(1) to provide that multiple crimes of violence committed in the
same criminal episode are each subject to the statutory sentencing
enhancement for second-strike offenders. The Supreme Court read the text
of Section 9714(a)(1) to require the sentencing enhancement for second-
strike offenders as long as the defendant previously committed a crime of
violence and his current offense is a crime of violence. Id. at 743. The
parties agree that Appellant’s prior murder conviction was a crime of
violence and that all of Appellant’s current offenses are crimes of violence.
See 42 Pa.C.S. § 9714(g) (defining “crime of violence” to include robbery
and conspiracy to commit robbery).
Appellant argues that the Supreme Court’s precedent in Fields is not
applicable to this set of facts where separate second-strike sentencing
enhancements are imposed both for the conspiracy offense and the object of
the conspiracy. Appellant offers no authority for this assertion but notes
that Section 9714(g) defines a “crime of violence” as enumerated offenses
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such as robbery or inchoate crimes like criminal conspiracy. Appellant
asserts that the “use of the word ‘or’ is indicative of the Legislature’s intent
that the enhancement shall apply to either the principal offense or the
conspiracy to commit the offense, but not both the conspiracy and the object
thereof.” Appellant’s Brief, at 15.
For questions of statutory interpretation, our standard of review is de
novo and our scope of review is plenary. Commonwealth v. Kingston,
No. 45 MAP 2015, 2016 WL 4273574, at *3 (Pa. filed Aug. 15, 2016)
(citations omitted).
In all matters involving statutory interpretation, we apply
the Statutory Construction Act, 1 Pa.C.S. §§ 1501 et seq., which
directs us to ascertain and effectuate the intent of the General
Assembly. 1 Pa.C.S. § 1921(a). To accomplish that goal, we
interpret statutory language not in isolation, but with reference
to the context in which it appears. See Consulting Eng'rs
Council of Penna. v. State Architects Licensure Bd., 522 Pa.
204, 560 A.2d 1375, 1377 (1989). A statute's plain language
generally provides the best indication of legislative intent. See,
e.g., McGrory v. Dep't of Transp., 591 Pa. 56, 915 A.2d 1155,
1158 (2007); Commonwealth v. Gilmour Mfg. Co., 573 Pa.
143, 822 A.2d 676, 679 (2003); Penna. Fin. Responsibility
Assigned Claims Plan v. English, 541 Pa. 424, 664 A.2d 84,
87 (1995) (“Where the words of a statute are clear and free
from ambiguity the legislative intent is to be gleaned from those
very words.”). Only where the words of a statute are ambiguous
will we resort to other considerations to discern legislative intent.
1 Pa.C.S. § 1921(c); see In re Canvass of Absentee Ballots
of Nov. 4, 2003 Gen. Election, 577 Pa. 231, 843 A.2d 1223,
1230 (2004) (citing O'Rourke v. Commonwealth, 566 Pa.
161, 778 A.2d 1194, 1201 (2001)).
Kingston, 2016 WL 4273574 at *3.
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Section 9714(g) sets forth the definition of “crime of violence” as used
in this recidivist statute:
(g) Definition.--As used in this section, the term “crime of
violence” means murder of the third degree, voluntary
manslaughter, manslaughter of a law enforcement officer as
defined in 18 Pa.C.S. § 2507(c) or (d) (relating to criminal
homicide of law enforcement officer), murder of the third degree
involving an unborn child as defined in 18 Pa.C.S. § 2604(c)
(relating to murder of unborn child), aggravated assault of an
unborn child as defined in 18 Pa.C.S. § 2606 (relating to
aggravated assault of unborn child), aggravated assault as
defined in 18 Pa.C.S. § 2702(a)(1) or (2) (relating to aggravated
assault), assault of law enforcement officer as defined in 18
Pa.C.S. § 2702.1 (relating to assault of law enforcement officer),
use of weapons of mass destruction as defined in 18 Pa.C.S. §
2716(b) (relating to weapons of mass destruction), terrorism as
defined in 18 Pa.C.S. § 2717(b)(2) (relating to terrorism),
trafficking of persons when the offense is graded as a felony of
the first degree as provided in 18 Pa.C.S. § 3002 (relating to
trafficking of persons), rape, involuntary deviate sexual
intercourse, aggravated indecent assault, incest, sexual assault,
arson endangering persons or aggravated arson as defined in 18
Pa.C.S. § 3301(a) or (a.1) (relating to arson and related
offenses), ecoterrorism as classified in 18 Pa.C.S. § 3311(b)(3)
(relating to ecoterrorism), kidnapping, burglary as defined in 18
Pa.C.S. § 3502(a)(1) (relating to burglary), robbery as defined in
18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to robbery), or
robbery of a motor vehicle, drug delivery resulting in death as
defined in 18 Pa.C.S. § 2506(a) (relating to drug delivery
resulting in death), or criminal attempt, criminal conspiracy or
criminal solicitation to commit murder or any of the offenses
listed above, or an equivalent crime under the laws of this
Commonwealth in effect at the time of the commission of that
offense or an equivalent crime in another jurisdiction.
42 Pa.C.S. § 9714 (emphasis added).
The plain language of Section 9714 defines “crime of violence” by
listing numerous offenses that will trigger the mandatory minimum
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provisions of this recidivism statute. The word “or” is used multiple times to
indicate that there are numerous offenses which constitute crimes of
violence which would subject the offender to a sentencing enhancement
upon a subsequent conviction. Section 9714(g) does not contain any
language describing when or how the sentencing enhancement would be
applied (which is set forth in Section 9714(a)(1)), but simply defines the
subset of crimes subject to the provisions of this particular statute.
We reject Appellant’s assertion that the particular word “or” in Section
9714 before the listing of the inchoate crimes prevents the simultaneous
application of sentencing enhancements for the principal offenses. Our
courts do not dissect statutory text and interpret it in a vacuum. See
Kingston, supra. We perceive no basis for adopting such a tortured
interpretation. Consistent with the Supreme Court’s precedent in Fields, we
find that the trial court did not err in imposing multiple mandatory minimum
sentences for Appellant’s convictions for robbery and conspiracy to commit
robbery.
Appellant also claims that the sentencing court abused its discretion in
imposing a “sentence that was grossly unreasonable and disproportionate to
the crimes for which he was convicted.” Appellant’s Brief, at 18. “A
challenge to the discretionary aspects of sentencing does not entitle an
appellant to review as of right.” Commonwealth v. Bynum-Hamilton,
135 A.3d 179, 184 (Pa.Super. 2016). In order to invoke this Court’s
jurisdiction to address such a challenge, the appellant must satisfy the
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following four-part test: the appellant must (1) file a timely notice of appeal
pursuant to Pa.R.A.P. 902, 903; (2) preserve the issues at sentencing or in a
timely post-sentence motion pursuant to Pa.R.Crim.P. 720; (3) ensure that
the appellant’s brief does not have a fatal defect as set forth in Pa.R.A.P.
2119(f); and (4) set forth a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code under 42 Pa.C.S. §
9781(b). Id.
While Appellant filed a timely notice of appeal and preserved his
sentencing claim in a timely post-sentence motion, he failed to include a
Rule 2119(f) statement in his appellate brief. When challenging the
discretionary aspects of sentence, “an appellant must include in his or her
brief a separate concise statement demonstrating that there is a substantial
question as to the appropriateness of the sentence under the Sentencing
Code.” Commonwealth v. Montgomery, 861 A.2d 304, 308 (Pa.Super.
2004) (citations omitted). If the Commonwealth objects to the appellant’s
failure to comply with Pa.R.A.P. 2119(f), the sentencing claim is waived for
purposes of review. Id. In this case, as the Commonwealth objected to
Appellant’s failure to include a separate Rule 2119(f) statement in his
appellate brief, this issue is waived for our review.
For the foregoing reasons, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/2016
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