Com. v. McDonald, J.

J-A17032-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JAMIL MCDONALD

Appellant No. 1999 EDA 2014

Appeal from the Judgment of Sentence April 4, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0003963-2012

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JULY 29, 2015

Appellant, Jamil McDonald, appeals from the judgment of sentence

entered in the Delaware County Court of Common Pleas, following his bench

trial convictions for terroristic threats, involuntary deviate sexual intercourse

(“IDSI”), aggravated indecent assault, indecent assault, robbery, and

persons not to possess firearms.1 We affirm.

The trial court opinion fully sets forth the relevant facts and procedural

history of this case. Therefore, we have no need to restate them.2

____________________________________________

1
18 Pa.C.S.A. §§ 2706, 3123, 3125, 3126, 3701, and 6105, respectively.
2
We make one small correction to the court’s opinion at page 2. After
sentencing on April 4, 2014, Appellant timely filed post-sentence motions on
April 10, 2014. The court denied the motions on June 16, 2014. Appellant
timely filed his notice of appeal on July 11, 2014.
J-A17032-15

Appellant raises the following issues for our review:

WHETHER THE TRIAL COURT ERRED WHEN IT FOUND
[APPELLANT] TO BE A SEXUALLY VIOLENT PREDATOR
AFTER THE MARCH 6, 2014 HEARING BECAUSE THE
COMMONWEALTH FAILED TO PROVE BY CLEAR AND
CONVINCING EVIDENCE THAT APPELLANT ACTED DUE TO
A MENTAL ABNORMALITY OR PERSONALITY DISORDER
THAT MADE HIM LIKELY TO ENGAGE IN PREDATORY
SEXUALLY VIOLENT OFFENSES.

WHETHER THE MANDATORY MINIMUM SENTENCES
IMPOSED ON ROBBERY, INVOLUNTARY DEVIATE SEXUAL
INTERCOURSE AND AGGRAVATED INDECENT ASSAULT
ARE ILLEGAL AND IN VIOLATION OF FEDERAL AND STATE
CONSTITUTIONAL RIGHTS.

(Appellant’s Brief at 6).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Gregory M.

Mallon, we conclude Appellant’s first issue merits no relief. The trial court

opinion comprehensively discusses and properly disposes of that issue.

(See Trial Court Opinion, filed February 18, 2015, at 3-8) (finding: Dr.

Haworth, psychologist and member of Sexual Offender Assessment Board

(“SOAB”), concluded Appellant suffers from antisocial personality disorder;

Dr. Haworth explained that individual with antisocial personality disorder has

no regard for other people and fails to balance his own needs against those

of others; Appellant had six prior juvenile adjudications and five prior

convictions as adult; Appellant directed his criminal behavior toward

stranger, creating higher risk of recidivism; Appellant displayed unusual

cruelty during commission of offense; Appellant held gun to victim’s head,

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J-A17032-15

threatened to kill her if she did not comply with Appellant’s sexual demands,

and fired warning shot; Dr. Haworth concluded Appellant fit within definition

of sexually violent predator; Commonwealth established by clear and

convincing evidence that Appellant is sexually violent predator).

Accordingly, as to Appellant’s first issue we affirm on the basis of the trial

court opinion.

In his second issue, Appellant argues the court’s application of the

mandatory minimum sentence under 42 Pa.C.S.A. § 9714 (sentences for

second and subsequent offenses), to Appellant’s convictions for robbery,

IDSI, and aggravated indecent assault, violated Article I, § 9 of the

Pennsylvania Constitution. Appellant acknowledges the federal exception to

the rule in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186

L.Ed.2d 314 (2013), for mandatory minimum sentences triggered by a prior

conviction. Nevertheless, Appellant contends Alleyne “stood mute” on the

continued viability of the “prior conviction” exception and that the

Pennsylvania Constitution provides greater protection in this context than

the federal Constitution. Appellant asserts this Court’s recent decisions,

which applied Alleyne to strike down certain mandatory minimum statutes,

likewise require the invalidation of Section 9714. Appellant concludes this

Court should vacate his judgment of sentence and remand for resentencing

without application of a mandatory minimum. We cannot agree.

For sentences on second or subsequent offenses, 42 Pa.C.S.A. § 9714

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J-A17032-15

sets forth a mandatory minimum sentence of ten (10) years’ imprisonment

for a crime of violence where a defendant has previously been convicted of a

crime of violence. 42 Pa.C.S.A. § 9714(a)(1). Section 9714(d) of this

statute states that its provisions shall not be an element of the crime. 42

Pa.C.S.A. § 9714(d). The statute further provides:

The sentencing court, prior to imposing sentence on an
offender under subsection (a), shall have a complete
record of the previous convictions of the offender, copies
of which shall be furnished to the offender. If the offender
or the attorney for the Commonwealth contests the
accuracy of the record, the court shall schedule a hearing
and direct the offender and the attorney for the
Commonwealth to submit evidence regarding the previous
convictions of the offender. The court shall then
determine, by a preponderance of the evidence, the
previous convictions of the offender and, if this section is
applicable, shall impose sentence in accordance with this
section. Should a previous conviction be vacated and an
acquittal or final discharge entered subsequent to
imposition of sentence under this section, the offender
shall have the right to petition the sentencing court for
reconsideration of sentence if this section would not have
been applicable except for the conviction which was
vacated.

Id. The language of the statute explains that the accuracy of the prior

record, if contested, is subject to a preponderance of the evidence standard.

Id.

The Alleyne Court expressly held that any fact that increases the

mandatory minimum sentence for a crime is considered an element of the

crime to be submitted to the fact-finder and found beyond a reasonable

doubt. Alleyne, supra. In Commonwealth v. Newman, 99 A.3d 86

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J-A17032-15

(Pa.Super. 2014) (en banc), this Court addressed the constitutionality of a

mandatory minimum sentencing statute containing language similar to

Section 9714(d). Relying on Alleyne, Newman held Section 9712.1

(sentences for certain drug offenses committed with firearms) could no

longer pass constitutional muster as it “permits the trial court, as opposed to

the jury, to increase a defendant’s minimum sentence based upon a

preponderance of the evidence that the defendant was dealing drugs and

possessed a firearm, or that a firearm was in close proximity to the drugs.”

Newman, supra at 98. This Court further held that the subsections of

Section 9712.1 are so “essentially and inseparably connected” that

severance of the statute is not possible, rendering the entire statute

unconstitutional. Id. at 102. Thus, this Court vacated Newman’s sentence

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

remanded for resentencing without imposition of the mandatory minimum

under Section 9712.1. See also Commonwealth v. Valentine, 101 A.3d

801 (Pa.Super. 2014) (extending logic of Alleyne and Newman to Sections

9712 and 9713 and holding those sections are likewise unconstitutional

insofar as they permit automatic increase of defendant’s sentence based on

preponderance of evidence standard). Accord Commonwealth v.

Hopkins, ___ A.3d ___, 2015 WL 3949099 at *11-13 (Pa. June 15, 2015)

(declaring mandatory minimum statute at 18 Pa.C.S.A. § 6317 (drug-free

school zones) unconstitutional in its entirety under Alleyne, where that

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J-A17032-15

statute stated its provisions were not elements of crime and applicability of

statute should be determined at sentencing by preponderance of evidence).

The Alleyne Court, however, carved out a narrow exception where a

defendant’s prior conviction is the “fact” triggering application of a

mandatory minimum sentence. Alleyne, supra at ___ n.1, 133 S.Ct. at

2160 n.1, 186 L.Ed.2d at ___ n.1. See also Commonwealth v. Reid, ___

A.3d ___, 2015 PA Super 135 (filed June 9, 2015) (explaining Alleyne did

not overturn prior precedent that prior convictions are sentencing factors

and not elements of offenses; Section 9714 enumerates mandatory

minimum sentences based on prior convictions, and is constitutional under

Alleyne; court’s imposition of mandatory minimum sentence under Section

9714 was lawful); Commonwealth v. Miller, 102 A.3d 988, 995 n.5

(Pa.Super. 2014) (explaining fact of prior conviction does not need to be

submitted to fact-finder and found beyond reasonable doubt; Alleyne allows

mandatory minimum sentence based on fact of prior conviction).

Instantly, the court imposed ten-year mandatory minimum sentences

for Appellant’s robbery, IDSI, and aggravated indecent assault convictions,

pursuant to 42 Pa.C.S.A. § 9714. The record shows Appellant had a prior

conviction for first-degree robbery in June 2004. Based on Appellant’s prior

conviction for a crime of violence, the imposition of the mandatory minimum

sentence under 42 Pa.C.S.A. § 9714 was lawful. See Alleyne, supra;

Reid, supra; Miller, supra. See also 42 Pa.C.S.A. § 9714(g) (defining

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J-A17032-15

first-degree robbery as “crime of violence” for purposes of statute).3

Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

____________________________________________

3
Appellant purports to present an Edmunds analysis under Article 1, § 9 of
the Pennsylvania Constitution, challenging the validity of the “prior
conviction” exception to Alleyne. See Commonwealth v. Edmunds, 526
Pa. 372, 586 A.2d 887 (1991) (stating that when presenting claim that
provision of Pennsylvania Constitution affords greater protection than federal
counterpart, defendant must brief and analyze (1) text of Pennsylvania
constitutional provision; (2) history of provision, including Pennsylvania case
law; (3) related case law from other states; and (4) policy considerations).
Appellant’s challenge is unreviewable because he cites no pertinent case law
from Pennsylvania or other jurisdictions to support his contention that the
Pennsylvania Constitution would deem the fact of a prior conviction to come
within the sweep of Alleyne. Appellant cites irrelevant language from
Commonwealth v. Mobley, 14 A.3d 887 (Pa.Super. 2011), a pre-Alleyne
decision in which this Court noted that the application of a mandatory
minimum based on a DUI breath test refusal would not implicate Apprendi
v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)
(holding facts that increase penalty for crime beyond prescribed statutory
maximum must be submitted to factfinder and proven beyond reasonable
doubt). Appellant also undercuts his own argument with citations to
Newman and Valentine, both of which recognized the continued viability of
the prior conviction exception in the wake of Alleyne. See Valentine,
supra; Newman, supra. Moreover, in Commonwealth v. Aponte, 579
Pa. 246, 855 A.2d 800 (2004), cert. denied, 543 U.S. 1063, 125 S.Ct. 886,
160 L.Ed.2d 792 (2005), our Supreme Court rejected a challenge under the
Pennsylvania Constitution to the Apprendi prior conviction exception. The
Court stated: “Where…the judicial finding is the fact of a prior conviction,
submission to a jury is unnecessary, since the prior conviction is an objective
fact that initially was cloaked in all the constitutional safeguards, and is now
a matter of public record.” Id. at 264, 855 A.2d at 811. Appellant fails to
explain why the Aponte Court’s reasoning is any less applicable in the
context of mandatory minimum sentences triggered by prior convictions.
See also Commonwealth v. Turner, 622 Pa. 318, 334, 80 A.3d 754, 763
(2013), cert. denied, 134 S.Ct. 1771, 188 L.Ed.2d 602 (2014) (stating due
process clauses of United States and Pennsylvania Constitutions are largely
coextensive).

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J-A17032-15

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/29/2015

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IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA NO. 3963-12
v.
JAMIL MCDONALD

OPINION

Mallon, J. Filed: 1.,-/f-/~
Jamil McDonald, appeals to the Superior Court his Judgment of Sentence. The nature and

history of the case are as follows:

I. Nature and History of the Case

On September 13, 2013, following a non-jury trial, this court found Appellant guilty of

terroristic threats, two counts of involuntary deviate sexual intercourse, aggravated indecent

assault, two counts of indecent assault, four counts of robbery, possession of a firearm -

prohibited person not to possess. The court deferred sentencing until after an assessment by the

Pennsylvania Sexual Offender Assessment Board (hereinafter "SOAB") was conducted, and on

December 4, 2013, the board issued its report, recommending that the Appellant be classified as

a sexually violent predator (hereinafter "SVP"). See Commonwealth Exhibit CS-2.

The facts admitted at trial established that the Appellant attacked a 19 year old woman in

Upper Darby, Pennsylvania on January 17, 2012. The Appellant approached the victim from

behind, covered her mouth, raised a gun in front of her face and told her to empty her pockets.

N.T., 9/6/2013, pp. 24-27. The Appellant then sexually assaulted the woman and forced her to

perform oral sex on him. Id. at 27-29. She begged him to stop and he choked her. Id. at 28, 50.

Following the attack, the woman reported the incident to the Upper Darby Police Department. Id.

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at 32-37. DNA evidence was obtained from a sweatshirt the woman had been wearing at the time

of the attack, which was entered into a national database and was discovered to match the

Appellant's DNA. Id. at 37, 130-32. A photo array was prepared, and the woman identified the

Appellant as her attacker. Id. at 132.

Following the trial and before sentencing, this court held a hearing on March 6, 2014 to

determine whether to classify the defendant as an SVP. The court took the matter under

advisement, and later determined that the Appellant was an SVP. On April 4, 2014, the court

sentenced the Appellant as follows: on count 9, involuntary deviate sexual intercourse, 120

months to 240 months of incarceration; on count 12, aggravated indecent assault, 120 months to

240 months of incarceration, consecutive to count 9; on count 16, robbery, 120 months to 240

months of incarceration, concurrent to counts 9 and 12; on count 20, persons prohibited from

possessing a firearm, 16 months to 120 months consecutive to counts 9 and 12; on count 14,

indecent assault, 16 months of probation consecutive to count 9, 12, 16 and 20; and finally, on

count 6, terroristic threats, 22 months to 44 months of incarceration consecutive to counts 9, 12

and 20, as well as 16 months of consecutive probation.

On April 18, 2012, Appellant filed his notice of appeal. The court granted appellate

counsel's request for an extension to file his Concise Statement of Matters Complained of on

Appeal, and the court ultimately received the _statement on December 4, 2014. The Appellant

raises the following issues:

(1) Whether the trial court erred when it found defendant to be a sexually violent
predator after the March 6, 2014 hearing because the Commonwealth failed to prove
by clear and convincing evidence that Appellant acted due to a mental abnormality or
personality disorder that made him likely to engage in predatory sexually violent
offenses;

(2) Whether the mandatory minimum sentences imposed on robbery, involuntary deviate
sexual intercourse and aggravated indecent assault are illegal and in violation of

2
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federal and state constitutional rights;

(3) Whether the sentence was harsh and excessive under the circumstances.

II. Discussion

A. SVP Determination

In his first issue on appeal, Appellant claims that the Commonwealth failed to prove by

clear and convincing evidence that he was a sexually violent predator. In Pennsylvania, a

sexually violent predator is required to register his name, address, telephone number, Social

Security number, and other personal information prior to the expiration of his sentence. See 42

Pa.C.S.A. §9799.16(b). The Pennsylvania State Police are responsible for creating and

maintaining the registry and corresponding public internet website. 42 Pa.C.S.A. §9799.16(a);42

Pa.C.S.A. §9799.28. These requirements are part of what is currently referred to as the Sexual

Offender Registration and Notification Act (hereinafter "SORNA").

SORNA defines a "sexually violent predator" as (I) a person who has been convicted of

a specified sexual offense, and (2) who has been determined to be a sexually violent predator due

to a mental abnormality or personality disorder that makes the individual likely to engage in

predatory sexually violent offenses. See 42 Pa.C.S.A. §9799.12. The specific sexual offenses

under the act are set forth in 42 Pa.C. S .A. §9799.14.

Correctly stated by the Appellant, the burden of proof in a determination of whether an

individual is a sexually violent predator is clear and convincing evidence. 42 Pa.C.S.A §

9799.24(e) (3). In reviewing the sufficiency of the evidence regarding an SVP determination, an
'
appellate court will reverse the trial court's determination "only if the Commonwealth has not

presented clear and convincing evidence sufficient to enable the trial court to determine that each

element required by the statute has been satisfied." Commonwealth v. Moody, 843 A.2d 402, 408

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(Pa. Super. 2004) (internal citation omitted). A challenge to the sufficiency of the evidence to

support an SVP determination requires the reviewing court to accept the undiminished record of

the case in the light most favorable to the Commonwealth. Commonwealth v. Meals, 590 Pa.

110, 119, 912 A.2d 213, 218 (2006).

"After conviction but before sentencing, a court shall order an individual convicted of a

sexually violent offense to be assessed by the [SOAB]" 42 Pa.C.S.A. §9799.24(a). Section

9799.24(b) provides:

(b) Assessment.-Upon receipt from the court of an order for an assessment, a member of the
board ... shall conduct an assessment of the individual to determine if the individual should be
classified as a sexually violent predator. The board shall establish standards for evaluations and
for evaluators conducting the assessments. An assessment shall include, but not limited to, an
examination of the following:

(1) Facts of the current offense, including:

(i) Whether the offense involved multiple victims.

(ii) Whether the individual exceeded the means necessary to achieve the offense.

(iii) The nature of the sexual contact with the victim.

(iv) Relationship of the individual to the victim.

(v) Age of the victim.

(vi) Whether the offense included a display of unusual cruelty by the individual during
the commission of the crime.

(vii) The mental capacity of the victim.

(2) Prior offense history, including:

(i) The individual's prior criminal record.

(ii) Whether the individual completed any prior sentences.

(iii) Whether the individual participated in available programs for sexual offenders.
(3) Characteristics of the individual, including:

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(i) Age.

(ii) Use of illegal drugs.

(iii) Any mental illness, mental disability or mental abnormality.

(iv) Behavioral characteristics that contribute to the individual's conduct.

(4) Factors that are supported in a sexual offender assessment field as criteria reasonably
related to the risk of re-offense.

42 Pa.C.S.A. §9799.24(b). There is no statutory requirement that all or any number of these

factors must be present in order to support an SVP determination. Commonwealth v, Prendes, 97

A.3d 337, 358 (Pa. Super. 2014) (citing Commonwealth v. Brooks, 7 A.3d 852 (Pa. Super. 2010))

Initially, the court finds that the Appellant was convicted of indecent assault, 1 aggravated

indecent assault,2 and involuntary deviate sexual intercourse/ all of which are designated by

statute as sexually violent offenses. See 42 Pa.C.S.A. § 9799.14.

Following the Appellant's conviction, this court ordered an SOAB assessment as

described above. Doctor Thomas F. Haworth performed this assessment, prepared a written

SOAB report, and testified at a hearing in front of this court on March 6, 2014. Dr: Haworth, a

psychologist, member of the SOAB, and expert in the field of sexual disorders and sexual

deviance, reviewed the affidavit of probable cause, criminal complaint, the notes of testimony

from the preliminary hearing, and psychological evaluations dated February 8, 2001 and April

13, 2010 before issuing his SOAB report. N.T., 3/6/2014, pp. 16-19.4

1
Indecent assault is listed as a tier I sexual offense in 42 Pa.C.S.A. § 9799.14(b) (6).
2
Aggravated indecent assault is listed as a tier III sexual offense in 42 Pa.C.S.A. § 9799.14(d)
(7).
3
Involuntary deviate sexual intercourse assault is listed as a tier III sexual offense in 42
Pa.C.S.A. § 9799.14(d) (4).
4
The Appellant refused to meet with Dr. Haworth. The absence of a personal interview of the
offender by a member of the Pennsylvania Sexual Offender Assessment Board (hereinafter
"SOAB") does not preclude the ability to evaluate the offender's behavior through his or her
5
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Through the testimony of Dr. Haworth, the Commonwealth established that, excluding

the charges in the case sub judice, the Appellant had eleven (11) juvenile arrests and six (6) adult

arrests, which resulted in six (6) juvenile adjudications and five (5) adult convictions. Based

upon the Appellant's criminal history, he has been engaged in criminal behavior since the age of

fourteen (14). Id. at 20. Dr. Haworth testified that the Appellant's "criminal history begins with

an adjudication of delinquency around 14 or 15 years of age and continues with a pattern of

sustained criminality across his lifespan into his adult years kind of crescendoing into the instant

offense." Id. at 20.5 Dr. Haworth testified that he reviewed the facts of the current offense, and

remarked that the Appellant committed the offense within two years of being placed on parole

and probation for a prior offense. Id at 28.6 He remarked that in the instant case the Appellant

had used a gun to rape a stranger, a violent offense. Id. at 28-29. Dr: Haworth testified to a

· reasonable degree of psychological certainty that the Appellant suffers from a personality

disorder. Specifically, Dr. Haworth concluded that the Appellant has anti-social personality

disorder. Id. at 21. He described the disorder as "a pervasive pattern of functioning and of inner

experience and behavior that is markedly deviate from the expectations of the individual's

culture. And specifically it is marked by callous indifference [to other persons], rule breaking,

aggression and these sort of characteristics." Id. at 21-22. He explained that an individual with

anti-social personality disorder has no regard for other persons and does not balance his own

needs against the needs of others. Id. at 22. He noted that such behavior is pervasive, and usually

available history and the criteria set forth for defining a SVP. Commonwealth v. Prendes, 97
A.3d 337 (Pa. Super. 2014).
5
Appellant's Pre-Sentence Investigation set forth a detailed recitation of his prior crimes that
include crimes of violence and crimes with firearms.
6
On April 5, 2005, the Appellant pleaded guilty to robbery and was sentenced to 78 to 180
months incarceration followed by 5 years of consecutive probation. As a result of the plea all the
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begins in childhood or adolescence. Id. at 22. Generally speaking, he explained that the disorder

continues throughout the individual's entire life. Id. at 22, 29.

Dr. Haworth further concluded that the Appellant fits within the definition of a sexually

violent predator. According to Dr. Haworth, the fact that the Appellant's criminal behavior was

directed at a stranger creates a higher risk of recidivism if he were to be released from prison. He

explained that the Appellant directed his aggression ''toward a stranger, a person he didn't have a

preexisting relationship with, obtained that stranger to an isolated place ... and committed those

acts." Id. at 29. Additionally, the court found several other factors to be present, most notably,

the court found that the Appellant displayed unusual cruelty during the commission of the

offense. See 42 Pa.C.S.A. §9799.24(b) (1) (vi). The Appellant attacked a young woman of 19

years of age while she was walking home from a friend's home. The attack occurred in an

alleyway. He held a gun to her head and threatened to kill her. He also fired a warning shot. The

Appellant used profanity and told the woman that he would shoot her if she did not comply with

his sexual directives. N.T., 9/6/2013, pp. 22-81.

This court submits that the testimony of the victim is the best statement of the depravity

of the Appellant's crime. Id. As will be seen from said testimony the Appellant "exceeded the

means necessary to achieve the offense", the "offense included a display of unusual cruelty by

the individual [the Appellant] during the commission of the crime." (See in particular N.T.,

9/6/2013, p. 29). Furthermore, the Appellant's "prior criminal record" is atrocious, and the

Appellant had yet to complete his prior sentence for a different violent crime, robbery, at the

time of the instant offense. See 42 Pa.C.S.A. §9799.24(b).

associated charges were no/le prossed, including persons not to possess a firearm and recklessly
endangering another person.
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Based on the foregoing, this court found the Appellant to be an SVP. The court

respectfully submits that the Commonwealth established that the Appellant is an SVP by clear

and convincing evidence.

B. MandatoryMinimum

In his next issue on appeal, the Appellant claims that the mandatory minimum sentences

imposed on robbery, involuntary deviate sexual intercourse and aggravated indecent assault are

illegal and in violation of his federal and state constitutional rights.

In the case sub judice, the Appellant was sentenced to the applicable mandatory

minimum sentence of ten years on his convictions for involuntary deviate sexual intercourse,

aggravated indecent assault, and robbery. 7 The Appellant was subject to a mandatory minimum

sentence found in 42 Pa.C.S.A. §9714(a)8(relating to second or subsequent offenses) based upon

the fact that he had a prior conviction for robbery in which he brandished a firearm and shot a

pizza shop employee. See N.T., 4/4/2014, p. 11. The Commonwealth provided the Appellant

with notice of its intent to invoke this sentence on November 7, 2013.

The court submits that the Appellant's constitutional rights were not infringed upon by

the imposition of this sentence. Moreover, the court submits that it had no authority to impose a

different sentence in this case. See 42 Pa.C.S.A. §9714(e) ("[t]here shall be no authority in any

court to impose on an offender to which this section is applicable any lesser sentence than

7
The court sentenced the Appellant to 120 to 240 months of incarceration on his involuntary
deviate sexual intercourse conviction. The court sentenced Appellant to 120 to 240 months of
incarceration on his aggravated indecent assault conviction, and imposed this to run consecutive
to his sentence for involuntary deviate sexual intercourse. Lastly, the court sentenced Appellant
to 120 to 240 months of incarceration on his robbery conviction, and ordered this sentence to run
concurrently with the sentences imposed for involuntary deviate sexual intercourse and
aggravated indecent assault.
8
Under 42 Pa.C.S.A. §9714, a person previously convicted of a crime of violence must be
sentenced to a minimum term of 10 years.
8
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provided for in subsection (a)").

In support of this argument, the Appellant cited Alleyne v. United States, -U.S.-, 133

S. Ct. 2151, 186 L. Ed. 2d 314 (2013), and claimed that he was entitled to have ajury determine

any fact that would trigger a mandatory minimum sentence. See Defendant's Memorandum for

Post-Sentence Motions. The Appellant is mistaken in this assertion. While it is clear that Alleyne

held that a fact that increases the mandatory minimum sentence is an element that must be

submitted to a jury, prior convictions are not elements that need to be submitted to a fact-finder.

See e.g., Commonwealth v. Aponte, 579 Pa. 246, 855 A.2d 800 (2004), Commonwealth v. Harris,

888 A.2d 862 (Pa. Super. 2005) (a jury inquiry is not mandated when considering prior

convictions), Commonwealth v. Lane, 941 A.2d 34 (Pa. Super. 2008), Commonwealth v. Watley,

81 A.3d 108 (Pa. Super. 2013) (en banc).9 The court respectfully submits that the imposition of

the mandatory minimum in this case was proper.

C. Excessive Sentence

In his final issue on appeal, Appellant claims that harsh and excessive under the

circumstances.

Our Court has stated that the proper standard of review when considering whether to
affirm the sentencing court's determination is an abuse of discretion. [A]n abuse of
discretion is more than a mere error of judgment; thus, a sentencing court will not
have abused its discretion unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. In more
expansive terms, our Court recently offered: An abuse of discretion may not be found
merely because an appellate court might have reached a different conclusion, but
requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will,

9 "According to the Alleyne Court, a fact that increases the sentencing floor is an element of the
crime. Thus, it ruled that facts that mandatorily increase the range of penalties for a defendant
must be submitted to a fact-finder and proven beyond a reasonable doubt. The Alleyne decision
therefore, renders those Pennsylvania mandatory minimum sentencing schemes that do not
pertain to prior convictions constitutionally infirm insofar as they permit a judge to
automatically increase a defendant' s sentence based on a preponderance of the evidence
standard." Watley, 81 A.3d at 117 (footnote omitted) (emphasis added).
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or such lack of support so as to be clearly erroneous.

The rationale behind such broad discretion and the concomitantly deferential standard
of appellate review is that the sentencing court is in the best position to determine the
proper penalty for a particular offense based upon an evaluation of the individual
circumstances before it. Simply stated, the sentencing court sentences flesh-and-blood
defendants and the nuances of sentencing decisions are difficult to gauge from the
cold transcript used upon appellate review. Moreover, the sentencing court enjoys an
institutional advantage to appellate review, bringing to its decisions an expertise,
experience, and judgment that should not be lightly disturbed. Even with the advent
of the sentencing guidelines, the power of sentencing is a function to be performed by
the sentencing court.

Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa. Super. 2013) (internal citation omitted).

The court submits that the Appellant's sentence was not excessive. In the case sub judice,

before imposing the Appellant's sentence, this court considered the nature and seriousness of the

crime; the age, family status, education and employment status of the Appellant; the statements

of the Commonwealth and defense counsel; the Appellant's sentencing guidelines; the

rehabilitative needs of the Appellant; and the protection of the public. This court considered what

the Appellant's wife and the Appellant's mother said at sentencing. See N.T., 4/4/14, pp. 22-27.

The Appellant said nothing at sentencing having waived his right to do so.

This court gave this case a great deal of thought prior to imposing it sentence, and based

upon all of the evidence presented, it determined that an aggregate sentence of 322 months to

644 months of incarceration was appropriate. At trial, the victim testified that the Appellant held

a gun to her head, forced her to perform oral sex on him, he ejaculated, and told her "to swallow

it or he would kill me." N.T., 9/6/2013, p. 29. After he sexually assaulted the victim, he told her

that "if [she] said anything, he would come to the high school and kill every little girl that looked

like me." Id at 31. Moreover, the Appellant was only out of jail for a short time following a

sentence for a prior robbery conviction when this crime occurred. See N.T., 4/4/2014, p. 11. In

this court's opinion, the Appellant's crime was especially heinous and it felt that the sentence

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 Circulated 07/16/2015 11:15 AM

was appropriate under the individual circumstances of the case. In this court's opinion, the

Appellant is a grave danger to the community whenever he is not incarcerated. He has committed

serious crimes and offenses starting at age 14. Sadly, despite society's punishments and efforts at

rehabilitation, he continues to offend and offend in a big way. This court respectfully submits

that the Appellant's excessive sentencing claim be denied.

III. Conclusion

In light of the aforementioned, this court respectfully requests that Appellant's appeal be

denied and his judgment of sentence affirmed.

BYT

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