TWO CONVICTIONS OF THE SAME FIREARM VIOLATION AT SAME TRIAL TRIGGER FIVE YEAR MANDATORY MINIMUM SENTENCE
The PA Superior Court has held in the case of Commonwealth v. Dawson, No. 3498 EDA 2014 (December 8, 2015) that a person convicted at the same trial of two separate counts of unlawful transfer of a firearm will be deemed to have a “previous conviction” and is therefore subject to the mandatory minimum sentence of imprisonment of five years.
On February 13, 2013, Staci Dawson purchased a .40 Caliber Smith & Wesson pistol at a sporting goods store. On February 27, 2013, she returned to the store and purchased a second firearm, a Kel-Tec 9 mm. pistol.
On March 5, 2013, police executed a traffic stop of a vehicle driven by Dawson’s boyfriend, David Colon. Shamar Atkinson was a passenger in the vehicle. Both of these men were known felons. At the time of the stop, Colon was found in possession of suspected cocaine and Atkinson had the fully loaded Kel-Tec 9 mm pistol purchased by Dawson tucked in his waistband. Both men were arrested.
Police visited Dawson on March 7, 2013 to discuss the 9 mm Kel-Tec firearm that ended up in Atkinson’s possession; however, Dawson did not mention the Smith & Wesson firearm to law enforcement at that time. The next day, she discussed both firearms with Colon on a tape-recorded prison phone line (Editor’s note – BAD IDEA!). Dawson and Colon discussed having her report the firearms stolen. She indicated to him that she did not know whether to report just one or both stolen, because she did not know which firearm the police were inquiring about. Colon instructed her to report both stolen, in part, because the police would discover the existence of the Smith & Wesson. Colon also offered to take the blame for stealing both firearms. Dawson ultimately reported that two firearms had been stolen from her mother’s residence.
Dawson was eventually charged, went to trial and was convicted of two counts each of criminal conspiracy and sale or transfer of firearms (Section 6111(c)) and one count of filing a false report. She was sentenced to an aggregate of 71 1/2 to 143 months in prison, followed by 84 months of probation.
On the first Section 6111(c) count, the trial court sentenced Dawson to 11 1⁄2 to 23 months in prison, plus 24 months of probation. On the second Section 6111(c) count, she received 5 to 10 years in prison, consistent with the mandatory minimum sentence provision at Section 6111(h)(1), plus 60 months of probation. The trial court also imposed a sentence of 3 to 6 months in prison for filing a false report. The trial court did not impose any further penalty on the criminal conspiracy charges. The filing a false report sentence was to run concurrently to all other sentences; however, the two sentences for sale or transfer of firearms were to run consecutively to each other.
Dawson filed a timely appeal, raising a number of issues, one of which is the focus of this blog: Was it proper for the trial court to impose a mandatory minimum 5 year sentence for a second conviction of 6111(c) when Dawson had never been sentenced for the first 6111(c) conviction?
Dawson framed the issue as whether the trial court erred in imposing the mandatory minimum sentence of 5 to 10 years on the second count of unlawful sale or transfer of firearms when she was not previously “convicted” of this offense but was instead found guilty at the same trial for both counts.
The Superior Court concluded that the trial court correctly applied the mandatory sentence in Dawson’s case and her sentence was therefore legal.
A summary of the Superior Court’s legal analysis follows:
Dawson argued that the trial court erred in imposing the mandatory minimum at Section 6111(h) because the second Section 6111(c) conviction was not “previous” but rather a second conviction from the very same case. The Commonwealth countered that Section 6111(h) makes no such distinction, and the trial court properly applied the mandatory minimum sentence.
Section 6111(h)(1), states that a person who, at the time of sentencing, has been convicted of another offense under this section shall be sentenced to a mandatory minimum sentence of imprisonment of five years. The dispute in this case is whether a “previous” conviction may include a separate charge in the same case for the purposes of Section 6111(h)(1).
Section 6111(h) requires that the trial court determine whether a previous conviction exists at the time of sentencing, without giving consideration to when the conviction occurred. The statute does not contain any textual limitations as to when the first and second convictions arose. Furthermore, Section 6111(h)(5) states that “a person shall be deemed to have been convicted of another offense under this section whether or not judgment of sentence has been imposed for that violation.”
Accordingly, the Superior Court concluded that the trial court properly applied the mandatory sentence in Dawson’s case and her resultant sentence was therefore legal.
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