OPINION BY DONOHUE, J.:
Brian Keith Spenny ("Spenny") appeals from the October 15, 2014 judgment of sentence entered by the Erie County Court of Common Pleas. On appeal,
On September 8, 2014, Spenny pled guilty to two counts of conspiracy to commit robbery of a financial institution.
III. PRIOR RECORD INFORMATION
03/08/86 PHOENIX, CT-1: ARMED ROBBERY CR 156333-86
AZ (FINANCIAL 05/27/86: SENTENCED
INSTITUTION) (F1) TO: CT-1:
(SCORED AS AN F2) 5 ½ YEARS STATE
CONFINEMENT
03/09/86 PHOENIX, CT-2: ROBBERY CT-2: 5 ½ YEARS
AZ (FINANCIAL INSTITUTION) STATE CONFINEMENT
(F1) CONCURRENT
(SCORED AS AN F2) TO CT-1.
10/06/88: PAROLED.
04/01/98 VARIOUS CT-1: BANK ROBBERY DN 8:00CR-125-T-23MSS:
THROUGH LOCATIONS (F) (SCORED
09/01/99 IN AS AN F2)
FLORIDA,
IOWA, AND
ILLINOIS
CT-1: BANK ROBBERY DN 8:01CR-246-T-23MSS:
(F) (SCORED
AS AN F2)
CT-2: BANK ROBBERY DN 8:01-CR-296-T-23MSS:
(F) (SCORED
AS AN F2)
CT-3: BANK ROBBERY 08/20/03: SENTENCED
(F) (SCORED BY
AS AN F2) JUDGE MERRYDAY
(AMENDED): CT-1
— CT-8:
CT-4: BANK ROBBERY 70 MONTHS FEDERAL
(F)(SCORED INCARCERATION,
AS AN F2) CONSECUTIVE
TO DN99-092,
DN99-093, DN 2000-0051,
DN 99-10-185,
FOLLOWED BY 36
MONTHS SUPERVISED
RELEASE,
$40,562.15 RESTITUTION,
AND DRUG
AND ALCOHOL TREATMENT CT-5: BANK ROBBERY (F) (SCORED AS AN F2) CT-6: BANK ROBBERY (F) (SCORED AS AN F2) CT-7: BANK ROBBERY (F) (SCORED AS AN F2) CT-8: BANK ROBBERY (F) (SCORED AS AN F2) CT-1: BANK ROBBERY CT-1 AND CT-2: 70 (F) (SCORED MONTHS FEDERAL AS AN F2) INCARCERATION FOLLOWED BY 36 MONTHS SUPERVISED RELEASE, CONCURENT TO DN8:00CR-125-T-23MSS, $17,157.00 RESTITUTION. CT-2: BANK ROBBERY (F) (SCORED AS AN F2) CT-1: BANK ROBBERY CT-1: 70 MONTHS (F) (SCORED FEDERAL INCARCERATION AS AN F2) FOLLOWED BY 36 MONTHS SUPERVISED RELEASE, CONCURRENT TODN8:00CR-125-T-23MSS, DN8:01CR-246-T-23MSS, $4,080.00 RESTITUTION. 07/09/99 MONROE CT-1: ROBBERY —DN 2000-0051: THROUGH CO, NY 3RD DEGREE 05/08/00: SENTENCED 08/04/99 (SCORED A[S] AN TO CT-1: F2) 1-3 YEARS STATE CONFINEMENT, RESTITUTION AND COSTS, CONSECUTIVE TODN 99-092. CT-2: ROBBERY — CT-2: 1-3 YEARS 3RD DEGREE STATE CONFINEMENT, (SCORED A[S] AN CONCURRENT F2) TO CT-1, RESTITUTION AND COSTS. CT-3: ROBBERY — CT-3: 1-3 YEARS 3RD DEGREE STATE CONFINEMENT, (SCORED A[S] AN RESTITUTION F2) AND COSTS, CONCURRENT TO CT-1. CT-4: GRAND LARCENY CT-4: 1-3 YEARS — 3RD DEGREE STATE CONFINEMENT, (SCORED AS RESTITUTION AN F2) AND COSTS,
CONCURRENT TO CT-1. CT-5: GRAND LARCENY CT-5: 1-3 YEARS — 3RD DEGREE STATE CONFINEMENT, (SCORED AS RESTITUTION AN F2) AND COSTS, CONCURRENT TO CT-1. CT-6: GRAND LARCENY CT-6: 1-3 YEARS — 3RD DEGREE STATE CONFINEMENT, (SCORED AS RESTITUTION AN F2) AND COSTS, CONCURRENT TO CT-1. 09/27/99 SENECA CT-1: ROBBERRY — DN99-092 : 02/22/00: COUNTY, 3RD DEGREE SENTENCED BY NY (SCORED AS AN F2) JUDGE BENDER TO: 2-6 YEARS STATE CONFINEMENT. 09/27/99 SENECA CT-1: ESCAPE AFTERDN99-093 : 02/22/00: COUNTY, FELONY ARREST SENTENCED BY NY (F) (SCORED JUDGE BENDER AS AN F3) TO: 2-6 YEARS STATE CONFINEMENT CONSECUTIVE TODN99-092. 08/25/99 ONTARIO CT-1: ROBBERY —DN99-10-185 : THROUGH COUNTY, 3RD DEGREE 02/23/00: SENTENCED 09/27/99 NY (SCORED AS AN F2) BY JUDGE HENRY TO: CT-1: 2-6 YEARS CONFINEMENT. CT-2: GRAND LARCENY CT-2: 1-3 YEARS — 3RD DEGREE CONFINEMENT (SCORED AS CONCURRENT TO AN F3) CT-1. CT-3: ROBBERY — CT-3: 2-6 YEARS 3RD DEGREE CONFINEMENT (SCORED AS AN F2) CONSECUTIVE TO CT-1 AND CT-2. CT-4: GRAND LARCENY CT-4: 1-3 YEARS — 3RD DEGREE CONFINEMENT (SCORED AS CONSECUTIVE TO AN F3) CT-1 AND CT-2. CT-5: ATTEMPTED CT-5: 1-3 YEARS ROBBERY — 3RD CONFINEMENT DEGREE (SCORED CONCURRENT TO AS AN F2) ENTIRE SENTENCE. SENTENCE IS CONCURRENT TODN 99-092 ANDDN 99-093.
Supplemental PSI at 3-5.
Based upon Spenny's prior convictions, the trial court found that Spenny fell under the repeat felony one and felony two offender ("RFEL") category, and sentenced him on October 15, 2014 to two consecutive terms of forty-five to ninety months of incarceration, which were to run consecutive to sentences Spenny was facing for parole violations in New York. Counsel, on behalf of Spenny, filed a timely motion to reconsider his sentence on
On October 23, 2014, Probation issued a memo to the trial court indicating that Spenny's Ontario County grand larceny convictions originally scored as second-degree felonies ("F2s") for Pennsylvania equivalency purposes should have been scored as third-degree felonies ("F3s"). See Probation Memo, 10/23/14. It further stated that after reviewing additional documentation regarding Spenny's federal and New York robberies, it confirmed that these were robberies of financial institutions, and as such, each of these robberies were properly graded as F2s for Spenny's prior record score. Id. Appended thereto were certified copies of Spenny's Ontario County and Seneca County convictions, as well as the pre-plea investigation reports associated with those convictions, which indicated that Spenny's burglary and grand larceny convictions stemmed from multiple bank robberies he perpetrated in those two New York counties. The Seneca County report also included historical information regarding Spenny's Arizona convictions, revealing that he committed armed robberies of a Mobil Gas Station store, a Yogurt Express and an individual, and pled guilty to two counts of armed robbery. Probation also appended to its memo an order granting a petition filed by the United States Probation Department to modify the terms of Spenny's release from federal incarceration, which outlined Spenny's federal sentence, as well as the indictment, trial waiver and sentencing papers from Arizona.
On October 29, 2014, believing that counsel had abandoned him, Spenny filed a pro se notice of appeal, which the trial court's prothonotary docketed and sent to counsel pursuant to Pa.R.Crim.P. 576(A)(4). The trial court denied Spenny's post-sentence motion on November 4, 2014, concluding that although there were modifications made in the supplemental PSI, Spenny was not entitled to be resentenced as "the original guideline computation for the mitigated, standard and aggravated ranges remains unchanged." Trial Court Order, 11/4/14, at 1 n. 1.
Counsel for Spenny subsequently filed a timely notice of appeal and complied with the trial court's order for the filing of a 1925(b) statement. The trial court issued a responsive 1925(a) opinion on January 2, 2015. Counsel for Spenny initially filed in this Court an Anders
The case is now once again before us for review, with Spenny raising the following issues for our consideration:
Spenny's Brief at 1-2.
The first issue Spenny raises on appeal, and the argument in support thereof, is identical to the issue counsel included in the originally filed Anders brief. Compare Spenny's Brief at 4-6 with Anders Brief at 4-6. As stated above, in our first memorandum decision in this case we agreed with counsel that this issue was frivolous. Commonwealth v. Spenny, 1974 WDA 2014, 8, 2015 WL 7018587 (Pa.Super. July 8, 2015) (unpublished memorandum). As we have already decided that this issue does not merit relief, we do not review it again here.
Spenny's second issue on appeal assails the trial court's calculation of his prior record score and its classification of Spenny as a RFEL. Spenny's Brief at 6-11. This presents a challenge to the discretionary aspects of his sentence. See Commonwealth v. O'Bidos, 849 A.2d 243, 253 (Pa.Super.2004). As Spenny recognizes, such challenges are not subject to our review as a matter of right. "An appellant must satisfy a four-part test to invoke this Court's jurisdiction when challenging the discretionary aspects of a sentence," by (1) preserving the issue in the court below, (2) filing a timely notice of appeal, (3) including a statement pursuant to Pa.R.A.P. 2119(f) ("Rule 2119(f) statement") in his brief on appeal, and (4) raising a substantial question for our review. Commonwealth v. Tejada, 107 A.3d 788, 797 (Pa.Super.2015) (citation omitted).
Spenny preserved the issues he now seeks to raise on appeal in his post-sentence motion, timely filed his notice of appeal, and included a Rule 2119(f) statement in his brief on appeal. However, just as in counsel's Anders brief, counsel for Spenny again failed to include this argument in the Rule 2119(f) statement. As in the Anders brief, the Rule 2119(f) statement states only that the trial court "did not individualize the sentence for Mr. Spenny." Compare Anders Brief at 4 with Spenny's Brief at 4. Fortunately for Spenny, the Commonwealth does not raise an objection to Spenny's failure in this regard. See Commonwealth v. Archer, 722 A.2d 203, 211 (Pa.Super.1998) (en banc) ("If an appellant fails to comply with R.A.P. 2119(f) and appellee fails to object, this Court may review appellant's claims with regard to the discretionary aspects of sentence."). As this raises a substantial question for our review, see Commonwealth v. Johnson, 758 A.2d 1214, 1216 (Pa.Super.2000), we turn to address the merits of the issue raised, which we review for an abuse of discretion. Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa.Super.2015).
A higher prior record score yields a higher guideline sentence, up to a maximum of five points. 204 Pa.Code §§ 303.4(a)(3), 303.16(a). A defendant who has prior convictions of F1s and F2s that total six or more points is separately classified as a RFEL, which further increases the guideline sentence. 204 Pa.Code §§ 303.4(a)(2), 303.16(a); see also Commonwealth v. Johnson, 125 A.3d 822, 825 (Pa.Super.2015).
If a defendant was sentenced for a single conviction at a prior judicial proceeding, that conviction is counted in the calculation of a defendant's prior record score. 204 Pa.Code § 303.5(a). If a defendant was sentenced for multiple convictions at a single sentencing proceeding, the most serious offense is included in the prior record score calculation, as is any other offense for which the defendant received consecutive sentences. 204 Pa. Code § 303.5(b). Prior convictions for which the trial court ordered the sentences to run concurrently with the most serious offense at a single judicial sentencing proceeding are not included in the calculation of the prior record score. Commonwealth v. Janda, 14 A.3d 147, 165 (Pa.Super.2011).
A prior conviction from another state court, federal court, or foreign jurisdiction "is scored as a conviction for the current equivalent Pennsylvania offense." 204 Pa. Code § 303.8(f)(1). If there is no current Pennsylvania equivalent, the trial court must base the grading of the crime on the maximum sentence allowed; if the grade of the prior felony conviction is unknown, it must be treated as an F3. 204 Pa.Code § 303.8(d)(2), (f)(3).
In its original 1925(a) opinion, the trial court relied upon its reasoning provided in its order denying Spenny's post-sentence motion on this issue, wherein it stated:
Trial Court Order, 11/4/14, at 1-2 nn. 1-2 (footnote numbers omitted). In its supplemental opinion, the trial court states that "[o]nly six [F2s] and two [F3s] were calculated to obtain a prior record score of [twelve], twice the number necessary to qualify as a [RFEL]." Trial Court Opinion, 7/22/15, at 1 (emphasis in the original).
It is unclear from either of the trial court's opinions precisely which out-of-state convictions it considered when calculating Spenny's prior record score. Regardless of what convictions it considered, the trial court's supplemental explanation that it considered "six [F2s] and two [F3s]" in categorizing Spenny as a RFEL is clearly erroneous, as only F1s and F2s count towards a RFEL designation. See 204 Pa.Code § 303.4(a)(2).
We further find error in the reasoning provided by the trial court its original opinion. Our review of the record reveals that "at the bottom of page [five] of the [PSI]," Spenny has two convictions for grand larceny in the third degree
The record likewise does not support the trial court's original conclusion that five of Spenny's prior convictions from New York counted toward his classification as a RFEL. See Trial Court Order, 11/4/14, at 1 n. 1. As Spenny accurately states, only four of his New York convictions could even arguably have counted towards his designation as a RFEL. See Spenny's Brief at 10. The supplemental PSI states that Spenny was sentenced at a single judicial proceeding for six convictions in Monroe County, New York — three for robbery in the third degree
Spenny was convicted of robbery in the third degree and escape after felony arrest
Lastly, Spenny was sentenced on five convictions in Ontario County, New York at a single judicial proceeding. His charges included two counts of robbery in the third degree, both scored as F2s, two counts of grand larceny in the third degree, scored as F3s, and one count of attempted robbery in the third degree, graded as an F2. Supplemental PSI at 5. He received consecutive sentences for the two F2 robbery convictions and the F3 grand larceny conviction, and concurrent sentences for his remaining convictions. Id. Therefore, for purposes of classifying Spenny as a RFEL, only the two Ontario County robbery convictions, if properly graded, would count, bringing the total F2 New York convictions that could even arguably have been included in designating Spenny as a RFEL to four. 204 Pa.Code §§ 303.4(a)(2), 303.5(b); Janda, 14 A.3d at 165.
The question remains whether the trial court properly classified Spenny's prior New York robbery convictions as F2s, or if, as Spenny claims, the trial court should have graded these offenses as F3s. See Spenny's Brief at 10-11. All of Spenny's New York robbery convictions were for robbery in the third degree, which New York law defines as follows: "A person is guilty of robbery in the third degree when he forcibly steals property. Robbery in the third degree is a class D felony." N.Y. Penal Law § 160.05. Spenny advocates for a strict elements analysis to determine the Pennsylvania equivalent for a prior, out-of-state conviction. See Spenny's Brief at 9-11. Pursuant thereto, Spenny contends that the Pennsylvania equivalent statute for his New York robbery convictions is 18 Pa.C.S.A. § 3701(a)(1)(v), which states: "A person is guilty of robbery if, in the course of committing a theft, he ... physically takes or removes property from the person of another by force however slight[.]" Spenny's Brief at 11. Robbery under section 3701(a)(1)(v) is an F3, see 18 Pa.C.S.A. § 3701(b)(1), and Spenny therefore asserts that the trial court abused its discretion by sentencing him as a RFEL. Spenny's Brief at 10-11.
The trial court does not provide any indication of what it found to be the Pennsylvania equivalent statute for whatever convictions it considered when classifying Spenny as a RFEL. The Commonwealth suggests that the trial court found that the Pennsylvania equivalent statute to Spenny's Seneca County and Ontario County robbery convictions
See Commonwealth's Brief at 3. The Commonwealth contends that section 3701(a)(1)(vi) is the Pennsylvania equivalent to N.Y. Penal Law § 160.05 because "both outlaw forcibly taking money from financial institutions." Commonwealth's Brief at 4. As robbery pursuant to section 3701(a)(1)(vi) is an F2, see 18 Pa.C.S.A. § 3701(b)(1), the Commonwealth contends that the trial court did not abuse its discretion by designating Spenny as a RFEL. Commonwealth's Brief at 4.
The documentation contained in the record detailing the factual bases underlying Spenny's Ontario County and Seneca County third-degree robbery convictions leaves no question that the robberies were of financial institutions. See Pre-Plea Investigation to Ontario County Court, 11/16/99, at 1-3; Pre-Plea Investigation to Seneca County Court, 11/22/99, at 2-4. On the other hand, even a cursory review of New York's third-degree robbery statute leads to the inescapable conclusion that a strict-elements approach would preclude a finding that Pennsylvania's robbery of a financial institution, section 3701(a)(1)(vi), is its equivalent offense. Therefore, the decision in this matter turns on whether (and if so, at what stage) courts are to look to the facts underlying a defendant's prior, out-of-state conviction to determine the Pennsylvania equivalent offense for sentencing purposes.
In Commonwealth v. Bolden, this Court first addressed the question of the proper procedure for grading a prior, out-of-state conviction for prior record score purposes.
Guided by the Statutory Construction Act
Id. at 1175-76 (footnotes and italicization omitted).
The Bolden Court undertook a comparison of the definition of the criminal statutes associated with Bolden's Colorado conviction, criminal attempt (Colo.Rev. Stat. § 18-2-101(1)) and burglary in the second degree (Colo.Rev.Stat. § 18-4-203(1)), with Pennsylvania's attempt and burglary statutes, 18 Pa.C.S.A. §§ 901, 3502(a). Although the Court stated that offense equivalency should be determined "in light of the record of the foreign conviction," it did not undertake any examination or discussion of the factual predicate for Bolden's Colorado conviction. Instead, based solely upon the definitions of the Colorado and Pennsylvania statutes, the Court concluded:
Bolden, 367 Pa.Super. 333, 532 A.2d 1172, 1177 (emphasis added; italicization omitted).
In the years that followed, our Supreme Court adopted the Bolden test for determining the Pennsylvania equivalent offense for prior, out-of-state convictions in other areas of the law.
Id. at 744-45 (footnote omitted; emphasis in the original). On that basis alone, without examining the facts attendant to the defendant's prior conviction, the Supreme Court held "that N.Y. Veh. & Traf. Law § 1192(1) is not `equivalent' to 75 Pa.C.S. § 3731(a)(1) for purposes of determining whether [Shaw] was a two-time repeat offender, and therefore subject to the 90 day mandatory minimum sentencing provision set forth at 75 Pa.C.S. § 3731(e)(1)(iii)." Id. at 745.
Our Supreme Court also adopted the Bolden test in Commonwealth v. Northrip, 603 Pa. 544, 985 A.2d 734 (2009), to determine the Pennsylvania equivalent offense for a prior, out-of-state conviction under the "Three Strikes Law," 42 Pa.C.S.A. § 9714. In Northrip, our Supreme Court was again called upon to determine whether a New York statute, this time third-degree arson (N.Y. Penal Law § 150.10), was equivalent to Pennsylvania's statute defining arson endangering persons (18 Pa.C.S.A. § 3301(a)(1)), such that the defendant's prior conviction for third-degree arson in New York constituted a "crime of violence" under section 9714(g). Northrip, 985 A.2d at 736. Following its comparison of the two statutes, the Court concluded:
Id. at 741-42 (citation to Shaw and footnote omitted).
The Commonwealth argued that courts were required to consider the factual record underlying a defendant's prior conviction, which, in that case, would have revealed that Northrip set fire to a business, rendering him culpable under 18 Pa.C.S.A. § 3301(a), and in turn, making section 3301(a) the Pennsylvania equivalent for purposes of section 9714. Id. at 740-41 & n. 8. The Northrip Court disagreed that it was necessary to consider the factual record of the prior conviction "in every instance" to determine the Pennsylvania equivalent offense. Id. at 740. In concluding that this case did not warrant a review of the factual record, the Court looked to the language of section 9714(g), which, at the time of the Northrip decision, stated:
42 Pa.C.S.A. § 9714(g) (revised July 7, 2011, effective Sept. 6, 2011). The Court observed that the Legislature's focus for all of the listed crimes, other than burglary, was the particular statutory subsection for which the defendant stood convicted, not the facts underlying the conviction. Northrip, 985 A.2d at 741. Section 9714(g) only required the trial court to examine the facts of a prior burglary conviction (for which no statutory subsection was listed) to determine whether that conviction was a crime of violence. The Court thus concluded:
Id.
Justice (now Chief Justice) Saylor joined the Northrip Majority, but also authored a concurring opinion, stating:
Id. at 744-45 (Saylor, J., Concurring) (footnotes omitted).
Subsequent to the Northrip decision, the Legislature did act, but in the opposite manner Justice Saylor predicted. Instead of amending section 9714 to require courts to review the facts underlying a prior, out-of-state conviction to determine its Pennsylvania equivalent, the Legislature removed from section 9714 the factual determination required for a burglary conviction, replacing it with a specific subsection of the burglary statute. See 42 Pa.C.S.A. § 9714(g) (as amended July 5, 2012, effective Sept. 4, 2012).
It is a long-standing presumption that the Legislature is aware of the judiciary's construction and interpretation of statutes. See, e.g., City of Philadelphia v. Clement & Muller, Inc., 552 Pa. 317, 715 A.2d 397, 399 (1998). Furthermore,
Fonner v. Shandon, Inc., 555 Pa. 370, 724 A.2d 903, 906 (1999) (internal citations omitted); see also 1 Pa.C.S.A. § 1922(4) ("In ascertaining the intention of the General Assembly in the enactment of a statute[, it may be presumed] ... [t]hat when a court of last resort has construed the language used in a statute, the General Assembly in subsequent statutes on the same subject matter intends the same construction to be placed upon such language."). Thus, by amending section 9714(g) to remove any factual analysis of the prior, out-of-state conviction, we presume that the Legislature did so with the intent of adopting the Supreme Court's strict-elements interpretation of the Bolden test.
We therefore conclude that when determining the Pennsylvania equivalent statute for a prior, out-of-state conviction for prior record score purposes, courts must identify the elements of the foreign conviction and on that basis alone, identify the Pennsylvania statute that "is substantially identical in nature and definition" to the out-of-state offense. Bolden, 532 A.2d at 1176. Courts are not tasked with ascertaining the statute under which the defendant would have been convicted if he or she had committed the out-of-state crime in Pennsylvania. Rather, we must compare "the elements of the foreign offense in terms of classification of the conduct proscribed, its definition of the offense, and the requirements for culpability" to determine the Pennsylvania equivalent offense. Northrip, 985 A.2d at 740 (quoting Shaw, 744 A.2d at 743).
This is not to say that the facts underlying the prior conviction are wholly irrelevant when determining the Pennsylvania equivalent statute. Once the court conducts an analysis of the elements of the foreign offense and finds the Pennsylvania offense that "is substantially identical in nature and definition" to the out-of-state statute, Bolden, 532 A.2d at 1176, the underlying record of the foreign offense may need to be considered for grading purposes. See id. (stating that the record of the prior conviction is relevant for grading the offense under Pennsylvania law or when there are aggravating circumstances); see also Janda, 14 A.3d at 166 (remanding the case for the trial court to consider the record of the defendant's prior New Jersey offense to determine whether the Pennsylvania equivalent of writing bad checks, 18 Pa.C.S.A. § 4105, should be graded as a summary, misdemeanor or felony for prior record score purposes).
Applying these principles to the case at bar, we agree with Spenny that the trial court improperly graded his New York convictions of third-degree robbery as F2s. The elements of New York's third-degree
Rather, we agree with Spenny that the Pennsylvania equivalent statute to N.Y. Penal Law § 160.05 is robbery under subsection 3701(a)(1)(v) — an F3. See 18 Pa. C.S.A. § 3701(b)(1). The elements of 3701(a)(1)(v) are: (1) taking or removing property by force (however slight); (2) from another person; (3) with the intent to deprive that person of the property. See 18 Pa.C.S.A. §§ 3701(a)(1)(v), 3921(a). The actus reus and mens rea of Pennsylvania's section 3701(a)(1)(v) robbery is nearly identical to the actus reus and mens rea of New York's third-degree robbery. Just as in Bolden, "there is identity of both nature and definition and therefore offense equivalency." Bolden, 532 A.2d at 1177.
The trial court abused its discretion by grading Spenny's prior New York robbery convictions as F2s, as each of the convictions should have been graded as F3s. Therefore, the trial court should not have considered any of Spenny's prior New York convictions in determining whether he qualified as a RFEL. See 204 Pa.Code § 303.4(a)(2).
This does not end our inquiry. While neither the trial court nor the Commonwealth provide any argument to support a finding that the RFEL designation was proper in the absence of the New York convictions, the law is clear that we may affirm the trial court's decision on any proper basis. Commonwealth v. Boyles, 104 A.3d 591, 596 (Pa.Super.2014). Therefore, we examine the remaining convictions includable in the calculation of Spenny's prior record score to determine whether the trial court nonetheless correctly determined that Spenny qualified as a RFEL.
Beginning with Spenny's federal convictions, the supplemental PSI reflects that Spenny was sentenced to concurrent terms of imprisonment for eleven counts of bank robbery at a single sentencing hearing. Supplemental PSI at 4. Therefore, only one conviction of bank robbery is included in calculating Spenny's PSI. See 204 Pa. Code § 303.5(b); Janda, 14 A.3d at 165. The federal bank robbery statute provides:
18 U.S.C.A. § 2113(a)-(c).
The trial court again provides no indication of which Pennsylvania statute it considered the equivalent to section 2113. The Commonwealth contends that equivalent statute is Pennsylvania's robbery of a financial institution, 18 Pa.C.S.A. § 3701(a)(1)(vi). See Commonwealth's Brief at 2. Depending on the subsection of section 2113 under which Spenny was convicted, we agree that section 3701(a)(1)(vi) could be the Pennsylvania equivalent offense.
Turning to Spenny's Arizona convictions, the record reflects that he was sentenced to concurrent terms of imprisonment on charges of armed robbery and robbery at a single sentencing hearing. Supplemental PSI at 3. The most serious offense,
A.R.S. § 13-1904. "A person commits robbery if in the course of taking any property of another from his person or immediate presence and against his will, such person threatens or uses force against any person with intent either to coerce surrender of property or to prevent resistance to such person taking or retaining property." A.R.S. § 13-1902(A).
The trial court states that Spenny's Arizona conviction "should have been scored as [an F1]," but does not indicate how it arrived at that determination. In the absence of any guidance from the trial court as to what statute it utilized as the Pennsylvania equivalent, we again turn to the Commonwealth, which once again advocates for section 3701(a)(1)(vi) as the Pennsylvania equivalent offense, as "[e]ach statute outlaws bank robbery." Commonwealth's Brief at 1-2. Accepting this designation, the Arizona armed robbery would be graded as an F2 and would add an additional two points to Spenny's prior record score. See 18 Pa.C.S.A. § 3701(b)(1); 204 Pa.Code §§ 303.7(a)(3), 303.15. This would bring Spenny's total F1 and F2 convictions in his prior record score to four points, which is insufficient for classification as a RFEL, as the Sentencing Guidelines Code requires a total of six points for F1 and/or F2 convictions in Spenny's prior record to be categorized as a RFEL. See 204 Pa.Code § 303.4(a)(2).
We note, however, that Arizona's section 13-1904 outlaws robberies committed with a deadly weapon. As our above-discussion makes clear, this is not the same conduct proscribed by section 3701(a)(1)(vi) — the elements are not the same, nor are the requirements for culpability. See Northrip, 985 A.2d at 740. We therefore disagree that section 3701(a)(1)(vi) is the equivalent offense to Arizona's section 13-904. Indeed, we are unable to find any equivalent offense in Pennsylvania to Arizona's section 13-1904. Section 13-1904 punishes not only the use or threat to use a deadly weapon during the commission of a robbery, but also the mere possession of a deadly weapon or simulated deadly weapon during the commission of a robbery. See A.R.S. § 13-1904(A); see also State v. Snider, 233 Ariz. 243, 311 P.3d 656, 658-59 (App.2013) ("§ 13-1904(A)(1) does not require the use or threatened use of the weapon, only that a defendant is `armed with a deadly weapon' during the commission of the crime"). There is no section of the Pennsylvania robbery statute that criminalizes the mere possession of a deadly weapon while committing a robbery. See generally 18 Pa.C.S.A. § 3701(a)(1). Rather, Pennsylvania law requires that the defendant either inflict or threaten to inflict serious bodily injury
Therefore, pursuant to the Sentencing Guideline Code, we look to the grade of the offense based on the maximum sentence permitted for armed robbery in Arizona. 204 Pa.Code 303.8(d)(2), (f)(3). Arizona divides its felony offenses into six classes, with a class one felony being the most serious and a class six felony the least serious. See A.R.S. § 13-601(A). Arizona further delineates its felony classes into "dangerous" and "nondangerous" offenses, which markedly changes the classification of the conviction for sentencing purposes. See A.R.S. §§ 13-702, 13-704.
According to section 13-1904, "Armed robbery is a class 2 felony." A.R.S. § 13-1904(B). The record reflects that the Arizona court designated Spenny's armed robbery conviction as "nondangerous" and "nonrepetitive." Arizona Sentencing Order, 5/27/86, at 8. For such class two offenses, the Arizona Legislature established a ten-year "maximum" sentence, but further permits an "aggravated" sentence of twelve and a half years if the sentencing court finds "at least two of the aggravated factors listed in § 13701, subsection D apply[.]" A.R.S. § 13-702(B), (D).
The Arizona sentencing provisions permitting sentencing above the "maximum" sentence are in contrast to established law in Pennsylvania. In Pennsylvania, a person convicted of a felony may be sentenced to a term of imprisonment of no more than twenty years for an F1, ten years for an F2, and seven years for an F3. 18 Pa. C.S.A. § 1103. These constitute the statutory maximum sentences allowed; a sentence of imprisonment above these stated terms would constitute an illegal sentence. See Commonwealth v. Shiffler, 583 Pa. 478, 879 A.2d 185, 189 (2005) (stating that a sentence that exceeds the lawful maximum provided by statute is illegal).
It is clear that Arizona's sentencing provisions are not consistent with Pennsylvania sentencing laws. We must therefore treat Spenny's Arizona armed robbery conviction as an F3, which would exclude the conviction from consideration in classifying Spenny as a RFEL. 204 Pa.Code 303.8(d)(2), (f)(3).
The trial court erred in determining Spenny's prior record score and incorrectly classified him as a RFEL. We therefore vacate Spenny's judgment of sentence and remand for the recalculation of his prior record score, followed by resentencing. See Janda, 14 A.3d at 166.
Judgment of sentence vacated. Case remanded with instructions. Jurisdiction relinquished.
