Maximum Sentence for Prior Offenders under CSA
Commonwealth v. Cousins, 2018 WL 327185 (Pa. Super. 2018) (unreported), allocatur granted July 31, 2018, appeal docket 38 MAP 2018
Cousins was arrested in Coatesville on an active bench warrant. During a search incident to arrest 16 bags containing a total of 1.75 grams of cocaine were found on his person. Following a stipulated facts trial, Cousins was found guilty of Possession of a Controlled Substance under 35 P.S. § 780–113(a)(16). This conviction constituted a violation of probation (VOP) for a prior conviction for Conspiracy to Commit Burglary. Cousins was sentenced to 1–3 years of incarceration for the possession charge and an additional 1–5 years on the VOP for a total of 2–8 years of imprisonment. Cousins filed a Petition for Reconsideration and Reduction of Sentence, which was denied “based on [his] very poor prior record and his awful performance on probation and parole.” Slip Op. at 2.
Cousins appealed to the Superior Court challenging the legality of the 1-3 year sentence imposed on his possession of a controlled substance conviction. Cousins argued that the maximum term of incarceration for this offense is one year given that his prior convictions were for possession of drug paraphernalia and possession of a small amount of marijuana based on the language of 35 P.S. § 780–113(b), which provides:
(b) Any person who violates any of the provisions of clauses (1) through (11), (13) and (15) through (20) or (37) of subsection (a) shall be guilty of a misdemeanor, and except for clauses (4), (6), (7), (8), (9) and (19) shall, on conviction thereof, be sentenced to imprisonment not exceeding one year or to pay a fine not exceeding five thousand dollars ($5,000), or both, and for clauses (4), (6), (7), (8), (9) and (19) shall, on conviction thereof, be sentenced to imprisonment not exceeding three years or to pay a fine not exceeding five thousand dollars ($5,000), or both; but, if the violation is committed after a prior conviction of such person for a violation of this act under this section has become final, such person shall be sentenced to imprisonment not exceeding three years or to pay a fine not exceeding twenty-five thousand dollars ($25,000), or both.
Cousins argued this provision was ambiguous and should be construed narrowly to require a prior conviction for one of the clauses specifically listed in 780–113(b), as opposed to any conviction under 780–113. Because his prior offenses were pursuant to clauses (31) and (32), which are not specifically listed, Cousins argued the sentencing enhancement does not apply to him.
The Superior Court disagreed, explaining that because Cousins “committed the current possession offense ‘after a prior conviction … for a violation of this act under this section [,]’ and the trial court, under the plain language of the statute, was required to sentence him to a term of ‘imprisonment not exceeding three years[.]’” Slip Op. at 5 (citations omitted). Having found “no support in the statutory language itself or other legal authority for [Cousins’] strained interpretation,” the Superior Court affirmed the trial court’s sentence, concluding that § 780-113(b) was not ambiguous and Cousins’ prior drug convictions subjected him to the increased penalty. Id.
The Supreme Court granted allocatur on the following issue:
Whether the Superior Court erred in holding that the legal maximum sentence under 35 P.S. § 780-113(b) of the Controlled Substance, Drug, Device and Cosmetic Act is three years of incarceration when an individual has prior convictions for possession of paraphernalia, 35 P.S. § 780- 113(a)(32), and possession of a small amount of marijuana, 35 P.S. § 780- 113(a)(31).