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– SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA Appellee :
:
v. :
: RICHARD ALLEN SETTLES, JR., :
: Appellant : No. 1729 WDA 2013

Appeal from the Judgment of Sentence October 9, 2013,

Court of Common Pleas, Fayette County, Criminal Division at No. CP

- 26

- CR

- 0000210

- 2012

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and ALLEN, JJ.

MEMORANDUM BY DONOHUE, J.: FILED FEBRUARY 24, 2015

Richard Allen Settles, Jr. (“Settles”) appeals from the judgment of

sentence entered following his convictions of possession of a controlled

substance and possession of a controlled substance with the intent to deliver

(“PWID”). 1 Settles challenges only the tria l court’s denial of his motion to

suppress. We find no error in the trial court’s denial of Settles’ suppression

motion but conclude that his sentence is illegal. Accordingly, we vacate the

judgment of sentence and remand for resentencing.

The trial c ourt summarized the facts underlying Settles’ convictions as

follows:

On January 27, 2012, around 1:12 a.m., Patrolman

Jamie Holland of the Uniontown Police Department, conducted a traffic stop on a van that failed to use a right turn signal at an intersection. N.T., 7/31/2012,

1 35 P.S. § 780

- 113(a)(16), (30).J

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- at 3

- 4. As he exited his vehicle, Holland immed iately detected the odor of marijuana coming from the van, the smell of which grew stronger as he neared the

van. Id. at 6

- 7. After asking the driver of the van, [] Settles, for his identification, the officer alerted him that he could smell marijuana comi ng from the vehicle. Id. at 7.

Because of the odor of the marijuana, Holland had [Settles] exit the vehicle. Id. at 8. To ensure officer’s safety, Holland performed a Terry frisk on [Settles] to check for weapons. Id. at 8

- 9. During the pat down, in [Sett les’] pants pocket, from the feel and packaging, the officer felt what he recognized to be a packaged narcotic. Id. at 9. The item was a small amount of marijuana in a clear plastic baggie that was tied and knotted in the corner of the baggie. Id. The off icer then proceeded to conduct an investigative search of the driver’s area by looking into the van but[] not by entering the

van. Id. at 10, 23

- 24. As he looked into the van, Holland could see, in plain view, a garbage bag with marijuana packed inside. Id

. at 10, 23. Upon viewing the packaged marijuana, he obtained a search warrant to search the van. Id. at 11.

Trial Court Opinion, 4/7/14, at 2

- 3. The search of the van revealed two

garbage bags full of marijuana, weighing a total of 22,740 grams (or 50. 13

pounds). The marijuana recovered from Settles’ front pocket weighed 2.9

grams. Following a jury trial, Settles was convicted of the above

- mentioned

crimes and sentenced to five years of imprisonment 2 and ordered to pay

various fines and costs. This t imely appeal follows.

2 The trial court imposed this sentence on the PWID charge pursuant to 18 Pa.C.S.A. § 7508(a)(1)(iii). See Trial Court Order, 10/9/13, at 1.J

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Settles sets forth two issues for our review in the statement of

questions involved portion of his brief on appeal: “Whether all evidence

should be suppressed when the Terry [f]risk [r]ule was violated” and

“Whether the [e]xclusiona ry [r]ule applies to the warrantless search of

vehicle [sic].” Settles’ Brief at 7. 3

Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are su pported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense a s remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. The suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review. M oreover, appellate courts are limited to reviewing only the evidence presented at the suppression hearing when examining a ruling on a pre

- trial motion to suppress.

Commonwealth v. Ranson , 103 A.3d 73, 76 (Pa. Super. 2014).

3 In the argument section of his brief, Settles does not delineate two separate arguments. This runs afoul of our rules, which provide that “[t]he argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part

-- in distinctive type or in type distinctively displayed

-- the particular point treated therein, f ollowed by such discussion and citation of authorities as are deemed pertinent.” Pa.R.A.P. 2119(a). We urge Settles’ counsel to hew more closely to the rules governing briefing requirements in the future.J

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The thrust of Settles’ issu es is that Officer Holland could not search his

vehicle without a warrant, and therefore that the trial court should have

suppressed the evidence found therein. We cannot agree. In

Commonwealth v. Gary , 91 A.3d 102 (Pa. 2014), the Pennsylvania

Supreme Co urt removed the twin requirements of both probable cause and

exigency for a lawful search of an automobile without a warrant. It held as

follows:

In sum, our review reveals no compelling

reason to interpret Article I, Section 8 of the Pennsylvania Consti tution as providing greater protection with regard to warrantless searches of motor vehicles than does the Fourth Amendment. Therefore, we hold that, in this Commonwealth, the law governing warrantless searches of motor vehicles is coextensive with federal law under the Fourth Amendment. The prerequisite for a warrantless search of a motor vehicle is probable cause to search; no exigency beyond the inherent mobility of a motor vehicle is required. The consistent and firm requirement for probable cause is a strong and sufficient safeguard against illegal searches of motor vehicles, whose inherent mobility and the endless factual circumstances that such mobility engenders constitute a per se exigency allowing police officers to make the determination of probab le cause in the first instance in the field.

Gary , 91 A.3d at 138 (emphasis added). Thus, an officer may lawfully

search an automobile without a warrant when he or she has probable cause

to believe that a crime has been committed or is being committed. At theJ

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suppression hearing, Officer Holland testified that he smelled an

overwhelming aroma of marijuana (not burning marijuana) emanating from

Settles’ vehicle. N.T., 7/31/12, at 8. This provided probable cause to

believe that criminal activity was occu rring, see Commonwealth v. El , 933

A.2d 657, 661 (Pa. Super. 2007), aff'd , 602 Pa. 126, 977 A.2d 1158 (2009)

(“The standard for probable cause is whether the facts and circumstances

within the officer's knowledge are sufficient to warrant a reasonably caut ious

person to believe that an offense has been or is being committed.”), and

therefore permitted a lawful search of the vehicle without a warrant. 4

We now turn our attention to Settles’ sentence. 5 The trial court

imposed only a minimum sentence of five years. Trial Court Order, 10/9/13,

4 We pause to note two things. First, although the Gary decision was published four months before the briefs in this case were filed, neither Settles nor the Commonwealth mention it. Settles contended, at oral argument, that the holding of Gary would apply only prospectively. We disagree. See Passar ello v. Grumbine , 87 A.3d 285, 307 (Pa. 2014) (“The general rule in Pennsylvania is that appellate courts apply the law in effect at the time of appellate review.”) Furthermore, despite his proclamation, Settles has not made a post

- argument submission to this Court to expound on this theory or provide us with authority in support of his position.

Second, the notes of testimony from the suppression hearing reveal that after observing marijuana in plain view, Officer Holland secured the vehicle and sought a warrant before continuing his search. N.T., 7/31/12, at 10

- 11. He was not required to do so; as we explained, pursuant to Gary , Officer Holland could have performed the search without a warrant.

5 It is axiomatic that this Court may raise issues co ncerning the legality of a sentence sua sponte

. See Commonwealth v. Mitchell, 986 A.2d 1241, 1244 n.3 (Pa. Super. 2009).J

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at 1. A flat sentence such as this is illegal because it violates section 9756

of the sentencing code, which requires a trial court to specify both a

maximum and minimum term when entering a sentence of total

confineme nt. Commonwealth v. Mitchell , 986 A.2d 1241, 1243 (Pa.

Super. 2009); see also 42 Pa.C.S.A. § 9756(b). Accordingly, we must

vacate Settles’ sentence and remand to the trial court for resentencing. 6

Judgment of sentence vacated. Case remanded. Jurisdicti on
relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/24/2015

6 We note that since the imposition of Settle’s sentence, this Court has found the statutory sentencing provision upon which the tr ial court relied, 18 Pa.C.S.A. 7508, unconstitutional. Commonwealth v. Cardwell , __ A.3d __, 2014 WL 6656644 (Pa. Super. Nov. 25, 2014).