Opinion
No. 472 MDA 2020 No. 473 MDA 2020
11-23-2020
COMMONWEALTH of Pennsylvania v. Vincent Eric GRAHAM, Appellant Commonwealth of Pennsylvania v. Vincent Eric Graham, II, Appellant
MEMORANDUM BY McCAFFERY, J.:
Vincent Eric Graham, II (Appellant) appeals from his judgment of sentence entered in Luzerne County Court of Common Pleas, as a result of his plea to two sets of drug charges. Appellant made an agreement with the Commonwealth whereby he entered guilty pleas to two charges of possession with the intent to deliver (PWID) Oxycodone, between 100 and 1000 pills, and one charge of possession of a small amount of marijuana. In exchange for entering an open plea and for his agreement to pay laboratory fees, to forfeit certain funds, and to pay the costs of prosecution, the Commonwealth agreed to withdraw other charges. N.T. Plea Hrg., 11/4/19, at 2-3.
On December 7, 2018, Hazleton City Police officers "observed suspicious activity" and made contact with several individuals sitting in a vehicle. N.T. Plea Hrg., 11/4/19, at 6. Appellant was in the back seat. Id. The car was searched and all occupants detained. Id. The search yielded a partially burnt marijuana cigarette and a small clear plastic baggy containing pills. Id. Appellant was searched, and police found him to be in possession of another baggy of pills. Id. at 7. The pills were tested, and were identified as Oxycodone. Id.
On December 17, 2018, Hazleton City Police responded to a report of a "suspicious male" sitting in a vehicle. N.T. Plea Hrg., 11/4/19, at 5-6. Officers reported a "strong odor of burnt marijuana" upon confronting Appellant in his car. Id. at 6. They searched the vehicle. As a result of the search, they found what they believed to be a marijuana cigarette in the center console. Id. "Further search" of the vehicle uncovered Oxycodone pills, two cellular phones, and $1,835. Id.
Ultimately, Appellant was sentenced to an aggregate term of 84 to 168 months’ imprisonment, where two consecutive terms of 42 to 84 months’ imprisonment were imposed for each PWID conviction, with a concurrent 15 to 30 days’ imprisonment for Appellant's marijuana conviction. Judgment of Sentence, 2/24/20.
Appellant's sole challenge on appeal is to the discretionary aspects of his sentence. He filed a statement pursuant to Pa.R.A.P. 1925(b), in which he argues that his sentence, which was in the standard range but consecutive, is excessive. However, as the trial court points out, his statement was filed after the time period specified in the trial court's order had run. Trial Ct. Op., 4/14/20, at 1-2 (unpaginated). He did not file the statement until April 20, 2020, in response to an order filed on March 13, 2020, affording him twenty-one days in which to file. Thus, it would initially appear that he has failed to preserve any claim of error for this Court's review. See Order per Pa.R.A.P. 1925(b), 3/13/20 (warning Appellant that any issues not properly preserved in a responsive statement would be waived).
Appellant was arrested in December of 2018, which means that the fourth amendment to the Seventh Edition of the Sentencing Guidelines applied to his sentence. PWID of a Schedule I or II drug (such as Oxycodone), 100-1000 pills, carries an offense gravity score of eleven. See Sentencing Guidelines, 7th Edition Amendment 4 Supplement (Effective 6/1/2018), at 303.15 (offense listing). Applying the matrix, a prior record score of zero and offense gravity score of eleven yields a standard range of 36 to 54 months.
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However, due to the ongoing pandemic, our Supreme Court entered an order extending filing deadlines in the spring of this year. See In re Gen. Statewide Judicial Emergency , 229 A.3d 229, 230 (Pa. April 1, 2020) ("any legal papers or pleadings which are required to be filed between March 19, 2020, and April 30, 2020, SHALL BE DEEMED to have been timely filed if they are filed by May 1, 2020, or on a later date as permitted by the appellate or local court in question"). Although we are generally loath to proceed dehors the record, in this instance, we must apply the statewide emergency order.
On May 5th, this Court issued a rule to show cause why these consolidated appeals should not be quashed in light of Commonwealth v. Walker , 185 A.3d 969 (Pa. 2018). Because Appellant has demonstrated that he filed two distinct appeals (by, for instance, paying separate filing fees as to each appeal) and because this Court has declined to quash in similar circumstances, see Commonwealth v. Jerome Johnson , ––– A.3d ––––, 2020 WL 3869723 (Pa. Super. July 9, 2020) (en banc ), we decline to quash here.
Rather, we remand under Pa.R.A.P. 1925(c)(3), for "the preparation and filing of an opinion by the judge." Pa.R.A.P. 1925(c)(3). Here, although the trial court filed a very concise opinion, it also noted the propriety of remand under Pa.R.A.P. 1925(c)(3) and does not reach the merits of Appellant's claim. Trial Ct. Op., 4/14/20, at 1-2 (unpaginated). Because we have no explanation from the trial court as to its sentencing considerations, examining the merits of Appellant's claim would be premature. Although it is true that Appellant's statement was not untimely, the trial judge's mistaken but reasonable belief that it was untimely supports remand, to give the trial court an opportunity to address the statement's claims.
Accordingly, we remand this case. The trial court shall have 30 days to prepare a supplemental opinion. After the trial court certifies its decision and returns the record to this Court, the Prothonotary shall establish a new briefing schedule.
Case remanded with instructions. Panel jurisdiction retained.