Opinion
J-S73017-18 No. 439 WDA 2018
01-30-2019
COMMONWEALTH OF PENNSYLVANIA, Appellee v. KYLE EDWARD LANE, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered February 28, 2018
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-001228-2016 BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J. MEMORANDUM BY BENDER, P.J.E.:
Appellant, Kyle Edward Lane, appeals from the post-conviction court's order denying his timely-filed petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
We need not reiterate the procedural history and factual background of this case, as the PCRA court set forth a comprehensive summary of both in its August 14, 2018 opinion pursuant to Pa.R.A.P. 1925(a). See PCRA Court Opinion (PCO), 8/14/2018, at 1-3. Presently, Appellant raises two issues for our review:
A. Whether the lower court erred in failing to find that the plea proceeding was invalidated in that counsel directly induced the pleas [sic] by promising that the sentence would run concurrently with any parole violation hit or in failing to properly address how the prospective sentence could be fashioned or applied?
B. Whether the sentence was illegal in that lab fees and court costs were improperly imposed upon ... Appellant jointly and severally with his co-defendant wherein all evidence and documents relating to the materials subject to the lab analysis only referenced the co-defendant?Appellant's Brief at 2 (unnecessary capitalization omitted).
We have reviewed the thorough and well-reasoned opinion issued by the Honorable Daniel J. Brabender, Jr., of the Court of Common Pleas of Erie County. We conclude that Judge Brabender's opinion accurately and thoroughly disposes of Appellant's first issue, in which Appellant claims he unknowingly and involuntarily entered his guilty plea because, in entering the plea, he relied upon his counsel's representation that he would receive a specific sentence. See PCO at 3-8. Accordingly, we adopt Judge Brabender's opinion as our own on this issue.
In Appellant's second issue, he argues that his sentence is illegal because the sentencing court improperly ordered him to pay laboratory fees jointly and severally with his co-defendant, where he says "all evidence and documents relating to the materials subject to the lab analysis only referenced the co-defendant[.]" Appellant's Brief at 2 (unnecessary capitalization omitted). He asserts that he should not have to pay any laboratory fee where "his name was never found in the trash or even on the lab paperwork." Id. at 5. He states that the subject of "the ... lab paperwork is exclusively the co-defendant, ... and thus he should be the party liable for the payment of the lab fees as there is no legal predicate or nexus to [Appellant] relative to the payment of that fee...." Id. We note that the laboratory fees amounted to $2,354.00. See PCO at 9.
Appellant does not elaborate on nor cite to anything in the record to corroborate this claim. However, the PCRA court explains that "[t]he reference to the trash concerns the averment in the Information that [Appellant], directly or by virtue of his complicity with [his] co-defendant., transported trash bags of meth production-related waste to the residence of a third party ... to dispose of them." PCO at 3 n.11 (citation omitted). According to the affidavit of probable cause, a forensic scientist processed the contents of this trash. See Affidavit of Probable Cause, 3/17/2016, at 2. We additionally discern that, although the affidavit of probable cause notes that "[i]ndicia belonging to [the co-defendant] was found inside the garbage[,]" see Affidavit of Probable Cause, 3/17/2016, at 2, the Commonwealth advised the sentencing court that, "[t]here was evidence of [Appellant's] ... purchasing Sudafed, the same kind that was found in the garbage we recovered." N.T. Sentencing, 3/8/2017, at 13; see also Affidavit of Probable Cause at 2 ("[T]wo boxes of Sudafed were found. [Appellant] had purchased the same type of Sudafed.... Furthermore, a box of Wal-[it]in D 15 count was found in the trash ... which is the same that [Appellant] had purchased at Wal-Greens....").
Relying on this same reasoning, Appellant claims that he should not have to pay "any other fines or restitution." Appellant's Brief at 5. However, our review of the sentencing order does not show that the sentencing court ordered Appellant to pay any other fines or restitution, nor does Appellant point to where it did. We therefore do not address this argument. --------
Insofar as Appellant argues that the sentencing court did not have the authority to require him to pay the laboratory fees, he raises a legality of sentencing claim. See Commonwealth v. Garzone , 993 A.2d 306, 316 (Pa. Super. 2010) (recognizing that an argument that the trial court did not have the authority to impose certain costs presents a legality of sentence claim whereas a claim that the amount is excessive presents a discretionary aspect of sentencing claim) (citations omitted). We acknowledge that "[t]he 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." See id. (citations and quotation marks omitted).
Appellant offers no authority demonstrating that his sentence is illegal. Although neither Appellant, the Commonwealth, nor the PCRA court reference 42 Pa.C.S. § 1725.3, our own research indicates that this statute addresses the imposition of laboratory fees on defendants. It sets forth, in pertinent part, the following:
(a) Imposition.--A person who is placed on probation without verdict pursuant to section 17 of the act of April 14, 1972 (P.L. 233, No. 64),1 known as The Controlled Substance, Drug, Device and Cosmetic Act, or who receives Accelerated Rehabilitative Disposition or who pleads guilty to or nolo contendere to or who is convicted of a crime as defined in 18 Pa.C.S. § 106 (relating to classes of offenses) or 75 Pa.C.S. § 1543(b)(1.1) (relating to driving while operating privilege is suspended or revoked) or 3802 (relating to driving under influence of alcohol or controlled substance) or 3735 (relating to homicide by vehicle while driving under influence) or 3735.1 (relating to aggravated assault while driving under the influence) or 3808(a)(2) (relating to illegally operating a motor vehicle not equipped with ignition interlock) or a violation of The Controlled Substance , Drug , Device and Cosmetic Act shall , in addition to any fines , penalties or costs , in every case where laboratory services were required to prosecute the crime or violation , be sentenced to pay a criminal laboratory or paramedic user fee which shall include , but not be limited to , the cost of sending a laboratory technician or paramedic to court proceedings.42 Pa.C.S. § 1725.3(a) (emphasis added).
Here, Appellant pled guilty to a violation of The Controlled Substance, Drug, Device and Cosmetic Act, namely possessing phenylpropanolamine, phenyl acetone, methylamine, ammonium sulfate, ammonium nitrate, phenyl acetic acid or a precursor substance with intent to unlawfully manufacture a controlled substance, 35 P.S. § 780-113.1(a)(3). Therefore, under 42 Pa.C.S. § 1725.3(a), the sentencing court had the authority to impose on Appellant the costs of laboratory fees incurred in prosecuting him.
Further, to the extent Appellant disputes the amount of the fee imposed and the trial court's finding a connection between him and the trash/lab work, Appellant contests a discretionary aspect of his sentence. See Garzone , supra. However, "[c]hallenges to the discretionary aspects of sentencing are not cognizable under the PCRA." See Commonwealth v. Fowler , 930 A.2d 586, 593 (Pa. Super. 2007); see also 42 Pa.C.S. § 9543(a)(2) (setting forth the claims that are cognizable under the PCRA). Moreover, even if cognizable, we would deem this claim waived because Appellant did not raise it at the time of sentencing, in a post-sentence motion, or on direct appeal. See 42 Pa.C.S. § 9543(a)(3) (stating that to be eligible for PCRA relief, the petitioner must demonstrate that the claim was not previously litigated or waived); 42 Pa.C.S. § 9544(b) (directing that "an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post[-]conviction proceeding"); Commonwealth v. Cartrette , 83 A.3d 1030, 1042 (Pa. Super. 2013) ("[I]ssues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings. Absent such efforts, an objection to a discretionary aspect of a sentence is waived.") (citation and internal quotation marks omitted). Thus, no relief is due.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/30/2019
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