Commonwealth v. Everett
Commonwealth v. Everett
Opinion of the Court
Appellant pleaded guilty to a three count information in which he was charged with possession of marijuana,
On the charge of possession with intent to deliver, appellant was sentenced to a term of eighteen (18) to thirty-six (36) months incarceration in the county jail; work-release was recommended if appellant met the conditions of the program. On the count of manufacturing, the court
Appellant filed a motion challenging the validity of his guilty plea. He filed a second motion to vacate the sentence as well as challenging the guilty plea. The court below denied both motions. Appellant then appealed to this Court. On this appeal, appellant attacks the validity of his guilty plea; the propriety of the sentence imposed and the confiscation and apparent forfeiture of the money.
During the guilty plea colloquy, the court initially informed appellant that he could be sentenced to a maximum term of five years and/or fined $15,000 on each of the two counts. A brief discussion occurred concerning an agreement between the appellant and the Commonwealth that the possession with intent to deliver would merge with the manufacturing count. Thereafter, the court revised its statement to indicate that the appellant would only be subjected to one term of five years and/or a fine. Appellant here claims that his plea was invalid because the court sentenced him on two counts, when it had previously indicated he could only be sentenced on the one count.
We agree that this inconsistency entitles 'appellant to some relief. A defendant must be informed of the maximum punishment he may face before the court can accept his guilty plea. Commonwealth v. Kulp, 476 Pa. 358, 382 A.2d 1209 (1978). Here, however, the problem lies not so much with the plea but with the sentencing. The lower court assumed during the colloquy that the charges would merge; the record is unclear as to whether this was an acceptance of the plea bargain or whether the court did
“As previously indicated, all of the charges against appellant arose out of the same criminal transaction.. . . In determining whether the respective charges merge the test to be applied ‘is ... whether one crime necessarily involves another . . . . ’ Commonwealth v. McCusker, 363 Pa. 450, 457, 70 A.2d 273, 276 (1950), citing Commonwealth ex rel. Moszcynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941); Commonwealth v. Hill, 237 Pa.Super. 543, 353 A.2d 870 (1976). Moreover, ‘. . . in order for one crime necessarily to involve another, the essential elements of one must also be essential elements of the other.’ Commonwealth v. Olsen, 247 Pa.Super. 513, 372 A.2d 1207, 1211 (1977).” Commonwealth v. Belgrave, 258 Pa.Super. 40, 391 A.2d 662 (1978).
Appellant was charged with three counts; one under 35 P. S. 780-113(16), possession; and two under subsection(30), possession with intent to deliver and the manufacture of marijuana.
“Manufacture” means the production, preparation, propagation, compounding, conversion or processing of a controlled substance, other drug or device or the packaging or repackaging of such substance or article, or the labeling or relabeling of the commercial container of such substance or article, but does not include the activities of a practitioner who, as an incident to his administration or dispensing such substance or article in the course of his professional practice, prepares, compounds, packages or labels such substance or article. The term ‘manufacturer’ means a person who manufactures a controlled substance, other drug or device.” 35 P. S. § 780-102.
Accordingly, the manufacturing count in these circumstances stands independently of the conviction for possession.
During the plea colloquy, the court advised appellant he could be sentenced only on one count, when actually he could have been sentenced on two counts. From our perspective, the error which appellant complains of lies not in the plea colloquy but in the sentencing. Accordingly, we must remand for resentencing.
Our discussion does not end here, for appellant alleges other errors which he claims demonstrate that his plea was not knowingly, intelligently and voluntarily entered.
Next appellant argues that his plea was invalid because several words or terms were not defined to him. Specifically, appellant claims the court should have defined: marijuana, manufacture, knowingly, intentionally and possession. In his motion challenging the validity of his plea, he mentioned only that the failure to define marijuana invalidated the plea. Appellant has therefore waived consideration of the definition of the other words. See Commonwealth v. Johnson, 258 Pa.Super. 214, 392 A.2d 760 (1978). Appellant claims the court should have informed him of the statutory definition found in the Controlled Substance, Drug, Device and Cosmetic Act, 35 P. S. § 780-102(b).
Finally, appellant claims he was improperly convicted several times for a single act and therefore his plea is invalid. As previously discussed, at the time he entered his guilty plea the court indicated he was pleading guilty only to one count. Any error there benefited appellant.
Lastly, we must consider the court’s disposition of the confiscated money. Appellant was sentenced on June 7, 1979, at that time the court ordered the remainder of the money; i. e. the sum to which the Internal Revenue Service had not filed a lien, to be distributed among a number of charities. At that time appellant indicated he would file a petition under Rule 324, Pa.R.Crim.P. for the return of such amount. Appellant through his counsel filed such petition the same day. The court entered an order to show cause upon the Commonwealth, returnable June 13, 1979. The Commonwealth contends that a stipulation was agreed to on August 2, 1979, wherein the petition was withdrawn. However, such stipulation does not appear in the record. Accordingly, upon remand the lower court should also dispose of appellant’s petition.
Sentence is vacated. Case is remanded for resentencing in accordance with the Sentencing Code and Guide Lines and for disposition of appellant’s petition for return of property.
. 35 P. S. § 780-113(16).
. 35 P. S. § 780-113(30).
. 35 P. S. § 780-113(30).
. The lower court correctly found the charge of possession merged with the charge of possession with intent to deliver. See Commonwealth v. Williams, 219 Pa.Super. 304, 279 A.2d 303 (1971); cf. Commonwealth v. Proietto, 241 Pa.Super. 385, 361 A.2d 712 (1976).
. (16) Knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act.
(30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.
. The receipt/inventory filed in this case in conjunction with the execution of the search warrant indicates that weighing scales, a number of marijuana plants, and a tray of marijuana drying in an oven were seized.
. Appellant raises other errors concerning the sentencing, due to our disposition here we need not discuss them.
. “Marihuana” consists of all forms, species and/or varieties of the genus Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin; but shall not include tetrahydrocannabinols, the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, cake, or the sterilized seed of such plant which is incapable of germination.
Concurring Opinion
concurring:
I concur with the majority. Appellant entered counseled pleas of guilty to the charges of possession of marijuana,
Appellant was a graduate of a vocational technical school; he attended a community college and he was an Honorably Discharged veteran of the Military where he attained the rank of Specialist Fourth Class. He was and continues to be represented by private counsel. His plea was obviously intelligently and voluntarily entered.
Appellant received a lenient sentence in view of the serious crimes involved in his pleas. I agree that we must remand for resentencing in accordance with the Sentencing Code and guidelines, in all other respects, the appeal is patently frivolous.
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, v. David H. EVERETT, Appellant
- Cited By
- 13 cases
- Status
- Published