By Burt Rose
COMMONWEALTH of Pennsylvania v. Vermaine TURNER, Appellant, 2012 WL 6642792, 2012 PA Super 282, 748 WDA 2012 (Dec. 21, 2012) is a decision of the Superior Court of Pennsylvania on an appeal from an Order of the Court of Common Pleas of Erie County, Criminal Division, CP–25–CR–0000639–2010, denying Appellant’s petition under the Post Conviction Relief Act. The Panel was composed of Judges SHOGAN, OTT and COLVILLE.
The Commonwealth charged Appellant with possession of a controlled substance with intent to deliver and persons not to possess a firearm. In return for Appellant’s agreement to plead guilty, the Commonwealth disposed of the firearm charge by nolle prosequi. At Appellant’s sentencing hearing, the court determined Appellant possessed a firearm during the PWID offense. Reasoning that gun possession during a PWID offense triggered the mandatory minimum term of five years’ incarceration under 42 Pa.C.S.A. § 9712.1, the court sentenced Appellant to imprisonment of not less than 5 1/2 nor more than 11 years, including the mandatory minimum term of five years.
On appeal, the Appellant argued that, because the Commonwealth nolle prossed the firearm charge, it was illegal to impose a mandatory minimum term due to his possession of a firearm.
A person convicted of PWID is subject to a mandatory minimum term of five years’ incarceration if, at the time of the PWID offense, the person or the person’s accomplice possessed or controlled a firearm. 42 Pa.C.S.A. § 9712.1(a). That statute does not make conviction of a firearm offense a prerequisite to the imposition of the mandatory minimum term in question. Similarly, nothing in the statute suggests that, if an attendant firearm charge is dismissed or withdrawn, the statute is somehow rendered inapplicable. Additionally, the nolle prosequi of the firearm charge did not in any way destroy the factual predicate of gun possession needed to trigger Section 9712.1(a), as proof of Appellant’s possession and control of the gun was presented by virtue of the facts recited during his plea and sentencing hearings. Therefore, it was proper for the court to consider such proof when deciding the applicability of the mandatory minimum term.