holding Commonwealth not required to prove for application of school enhancement that defendant intended to be within one thousand feet of a school
How later courts described this case
- holding Commonwealth not required to prove for application of school enhancement that defendant intended to be within one thousand feet of a school
- “The trial court should have merged for sentencing purposes the crimes of possession of controlled substances and possession with intent to deliver since both charges stemmed from the same act of possession.”
- “The trial court should have ____________________________________________ 6 This issue was not presented in Appellant’s Rule 1925 statement. However, “[a] challenge to the legality of the sentence can never be waived and may be raised by this Court sua sponte.” Commonwealth v. Kline, 166 A.3d 337, 340 (Pa.Super. 2017) (internal quotation marks omitted). -9- J-S34003-18 merged for sentencing purposes the crimes of possession of controlled substances and possession with intent to deliver since both charges stemmed from the same act of possession.”
- legality of sentencing can be raised on appeal sua sponte
Written by the judges who cited it.
The opinion
*463 KELLY, Judge
concurring statement:
I join in all aspects of the majority’s well reasoned opinion. Although appellant’s counsel has failed to recognize and challenge the illegality of the sentences which should have merged, it is clear that we may raise the claim for appellant notwithstanding the failure of counsel to present such an argument. Moreover, with regard to appellant’s challenges to the discretionary aspects of his sentence, 1 it is apparent that the trial court confused the intended effect of a sentencing guideline enhancement with the intended effect of a mandatory minimum sentence. The former mandates that an increased sentence be considered; the later mandates that a minimum sentence be imposed. See Commonwealth v. Brown, 402 Pa.Super. 369 , 587 A.2d 6 (1991); Commonwealth v. Kreiser, 399 Pa.Super. 370 , 582 A.2d 387 (1990). As the United States Supreme Court explained, the Pennsylvania sentencing guidelines enhancement provision simply “ups the ante” for the defendant found to be within the ambit of the enhancement’s intent. McMillan v. Pennsylvania, 477 U.S. 79, 89 , 106 S.Ct. 2411, 2417 , 91 L.Ed.2d 67, 78 (1986) (holding that the Pennsylvania deadly weapons enhancement does not violate the right to due process).
I note that I find no error, however, in the trial court’s reliance on the legislature’s intent in enacting sentencing *464 enhancements which effectively create “drug free school zones.” As the trial court recognized, such enhancements were unquestionably put in force in an attempt to protect our youth from the irrefutably colossal and catastrophic consequences of drugs. See Commonwealth v. Ramos, 392 Pa.Super. 583, 585-89 , 573 A.2d 1027, 1029-30 (1990) (citing authorities). Incumbent upon the sentencer is of course the obligation to pay due deference to the intent and effect of such legislation. Indeed, for the trial court to have disregarded such a factor would well have been an abuse of discretion, as this Court recently held:
The destructive character of such activity [drug sales] to the well being of society is so well documented as not to require further documentation here. To ignore the provisions established by law for controlling and hopefully deterring such behavior brings the judicial process into question and undermines the confidence of society in the judiciary, while bringing solace and encouragement to the drug peddlers.
Commonwealth v. Rosario, 400 Pa.Super. 505 , 583 A.2d 1229 (1990) (footnotes omitted) (per Taniilia, J.).
. While I agree that appellant’s failure to even attempt to comply with Pa.R.A.P. 2119(f) does not hamper our ability to review the instant challenge to the discretionary aspects of sentence, it should be noted that our decision to review appellant’s claim is based on efforts to promote judicial economy and a reluctance to fault the powerless appellant for offending counsel's procedural default. See Commonwealth v. Ciotto, 382 Pa.Super. 458 , 461 n. 1, 555 A.2d 930 , 931 n. 1 (1989); Commonwealth v. Osteen, 381 Pa.Super. 120, 125 , 552 A.2d 1124, 1126 (1989). This Court has not in the past, nor should it be seen to now, countenance such apparent contempt for the rules and procedure promulgated by our Supreme Court. See Commonwealth v. Tuladziecki, 513 Pa. 508 , 522 A.2d 17 (1987). Rather, it remains true that although this Court chose to simply waive the defect instantly, it reserves the right, in its sound discretion, to quash the appeal for such defects or direct immediate compliance in the form of a supplemental Pa.R.A.P. 2119(f) statement. See Commonwealth v. Penrod, 396 Pa.Super. 221, 228-30 , 578 A.2d 486, 490 (1990) (citing cases).