J-S58028-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN CATAQUET,
Appellant No. 2029 MDA 2014
Appeal from the Judgment of Sentence of February 22, 2010
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0001318-2008
BEFORE: GANTMAN, P.J., OLSON AND PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 03, 2016
Appellant, John Cataquet, appeals from the judgment of sentence
entered on February 22, 2010. After careful consideration, we are
constrained to vacate Appellant’s judgment of sentence and remand for
resentencing.
The trial court ably explained the underlying facts of this case:
[The victim, J.R., was born in April 1995 and] was [14]
years old at the time of trial[. In 2001 or 2002, when J.R.
was six years old,] Appellant began sexually abusing [her.
N.T. Trial, 9/15/09, at 70.] Appellant knew J.R. through her
aunt, to whom Appellant was married. Appellant would
frequently babysit J.R. and her two younger brothers at
[Appellant’s] house. . . . J.R. detailed the attic where
Appellant would take her and her siblings while babysitting
and where the [abuse] occurred. J.R. testified that . . .
Appellant would take her into a small room in the attic,
have her [lie] down on blankets[,] and touch her with [his]
hands, mouth, and penis, and do what she described as
“humping” – rub[bing] his body on hers back and forth with
their clothes on. She testified that he digitally penetrated
* Retired Senior Judge assigned to the Superior Court
J-S58028-15
her vagina [while] her pants [were] pulled down, kissed
her, touched her vagina with his mouth, forced her to
perform oral sex on him, and rubbed his penis on her
vagina. . . . [J.R. testified that Appellant abused her in this
manner “just about every[] day for about a year” – and that
she was seven years old the “last [time she was] at that
house that had the attic.” N.T. Trial, 9/15/09, at 81-83.
Therefore, according to J.R., the last time Appellant could
have abused her was in April 2003.]
J.R. kept this [abuse] secret for years until March[] 2008,
when she decided to come forward and report the abuse to
the police. On March 24, 2008, J.R. was examined by Nurse
Practitioner Sandra Federo at the Children’s Advocacy
Center, who found that although there was no physical
evidence of sexual assault, such a finding was consistent
with the timing of the disclosure, as well as the type of
abuse disclosed by J.R.
On April 9, 2008, as part of his investigation into J.R.’s
complaint, Detective Timothy Mayo of the Scranton Police
Department contacted Appellant via telephone and
requested an interview at the police station. On April 10,
2008, Appellant was interviewed by Detective Mayo at the
Scranton Police Department[. Appellant] was advised of his
[Miranda1] rights[,] and [Appellant] then gave a written
statement denying all of J.R.’s allegations. . . .
The following day[,] . . . Appellant was [] questioned by
Detective Lieutenant Joseph Lafferty as part of the
investigation. Appellant admitted to and then signed a
written statement [declaring] that he digitally penetrated
J.R. twice, but [denied] ever exposing his penis to the
victim, denied touching his penis to her vagina, den[ied]
using his tongue on J.R.’s vagina, and denied ever forcing
J.R. to perform oral sex on him. In response to the
detective questioning what else happened with J.R.,
Appellant stated[,] “[i]t looked like she kind of liked it.
Every time she came to the house, it felt like she wanted to
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1
Miranda v. Arizona, 384 U.S. 436 (1966).
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do it.” [Appellant] then agreed to take the detectives to the
place where he violated J.R. He took them to a house on
Albright Avenue. At that point[,] the detectives took
Appellant back to police headquarters and placed him under
physical arrest and began booking procedures.
Trial Court Opinion, 10/15/15, at 1-4 (some internal citations and
capitalization omitted).
The Commonwealth later charged Appellant with two counts of
aggravated indecent assault of a person less than 13 years of age, two
counts of involuntary deviate sexual intercourse (hereinafter “IDSI”) with a
person less than 13 years of age, and one count each of indecent assault of
a person less than 13 years of age, endangering the welfare of children,
corruption of minors, and unlawful contact with a minor. 2 Commonwealth’s
Information, 6/20/08, at 1-3.
Appellant proceeded to a jury trial where the above evidence was
presented. Moreover, during trial, J.R.’s mother testified she “le[ft J.R.] in
the care of [Appellant]” when J.R. was seven years old. N.T. Trial, 9/16/09,
at 95.
On September 21, 2009, the jury found Appellant guilty of all charges.
Moreover, on the verdict slip, the jury specifically determined that
____________________________________________
2
18 Pa.C.S.A. §§ 3125(a)(7), 3123(a)(6) (effective from 1995 until
February 6, 2003), 3126(a)(7), 4304(a), 6301(a)(1), and 6318(a)(1),
respectively.
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Appellant’s two aggravated indecent assaults on J.R. occurred “between
January [] 2002 [and] January 2003.” Verdict Slip, 9/22/09, at 1.
On February 22, 2010, the trial court sentenced Appellant to serve an
aggregate term of 204 to 408 months in prison, followed by 16 years of
special probation. Specifically, the trial court sentenced Appellant to serve:
a mandatory minimum term of 36 to 72 months in prison (pursuant to 42
Pa.C.S.A. § 9718), plus two years of special probation, on both counts of
aggravated indecent assault of a person less than 13 years of age (18
Pa.C.S.A. § 3125(a)(7)); a mandatory minimum term of 66 to 132 months
in prison (pursuant to 42 Pa.C.S.A. § 9718), plus two years of special
probation, on both counts of IDSI upon a person less than 13 years of age
(18 Pa.C.S.A. § 3123(a)(6));3, 4
and, two years of probation each on the
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3
During sentencing, the trial court apparently believed that Appellant was
convicted of IDSI upon a person who was less than 16 years of age. See
N.T. Sentencing, 2/22/10, at 8. This belief was, however, incorrect.
Indeed, at trial, the trial court instructed the jury as follows:
The next count is involuntary deviate sexual intercourse
with a child. A person commits involuntary deviate sexual
intercourse with a child when the person engages in deviate
sexual intercourse with a child who is less than 13 years of
age.
...
[I]t’s immaterial whether the child consented to the contact.
The consent of a child is no defense.
It is also no defense that the defendant did not know the
age of the child or the child lied [about] her age or the
(Footnote Continued Next Page)
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_______________________
(Footnote Continued)
defendant honestly believed that the child was 13 or older
or that the defendant reasonably believed that the child was
13 or older.
Therefore, in order to find [Appellant] guilty of this offense
you must find that the following two elements have been
proven beyond a reasonable doubt:
First, that [Appellant] engaged in deviate sexual intercourse
with a child, namely, [J.R.].
Second, that the child, [J.R.], was less than 13 years of age
at the time the offense occurred.
N.T. Trial, 9/21/09, at 116-118.
Appellant did not object to this jury instruction. Therefore, when the jury
pronounced, in open court, that Appellant was guilty of “Count 3, involuntary
deviate sexual intercourse with a child” and “Count 4, involuntary deviate
sexual intercourse with a child,” the jury – in fact – found Appellant guilty of
IDSI with a person who was “less than 13 years of age.” See
Commonwealth v. Zlatovich, 269 A.2d 469, 473 (Pa. 1970) (“[t]he only
act performed by the jury to which any legal significance is attached is the
[r]endering of the verdict. The verdict as uttered is the sole embodiment of
the jury’s act”) (internal quotations and corrections omitted). We
acknowledge that the Commonwealth’s information is fairly ambiguous with
respect to the IDSI charge – and that it can be read as supporting a charge
of IDSI upon an individual who is “less than 13 years of age” and IDSI upon
an individual who is “less than 16 years of age.” See 18 Pa.C.S.A.
§ 3123(a)(6) (effective from 1995 until February 6, 2003); Commonwealth’s
Information, 6/20/08, at 1-2. Nevertheless, Appellant did not object to the
ambiguity in the information or to the trial court’s jury instruction. Further,
since the information supports the charge of IDSI upon an individual who is
“less than 13 years of age” and since Appellant was, in fact, found guilty of
IDSI upon an individual who is “less than 13 years of age,” we conclude that
Appellant was convicted of IDSI upon an individual who is “less than 13
years of age.”
4
From 1995 until February 6, 2003, the IDSI statute – 18 Pa.C.S.A. § 3123
– defined the crime of “deviate sexual intercourse with a complainant . . .
who is less than 13 years of age,” at 18 Pa.C.S.A. § 3123(a)(6). 18
(Footnote Continued Next Page)
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charges of indecent assault of a person less than 13 years of age,
endangering the welfare of children, corruption of minors, and unlawful
contact with a minor. The trial court ordered each sentencing term to run
consecutively to one another.
As noted above, the trial court utilized the mandatory minimum
sentencing statute found at 42 Pa.C.S.A. § 9718 to sentence Appellant to
mandatory minimum terms of imprisonment for the following convictions:
two counts of aggravated indecent assault of a person less than 13 years of
age (18 Pa.C.S.A. § 3125(a)(7)) and two counts of IDSI with a person less
than 13 years of age (18 Pa.C.S.A. § 3123(a)(6)). The trial court never
specified the version of 42 Pa.C.S.A. § 9718 it employed when it sentenced
Appellant to the particular mandatory minimum terms.
Appellant did not file a notice of appeal from his judgment of sentence.
_______________________
(Footnote Continued)
Pa.C.S.A. § 3123(a)(6) (effective from 1995 until February 6, 2003).
Effective February 7, 2003 until February 13, 2003, the legislature moved
the definition of the crime of “deviate sexual intercourse with a complainant
who is less than 13 years of age” to 18 Pa.C.S.A. § 3123(c). 18 Pa.C.S.A.
§ 3123(c) (effective from February 7, 2003 until February 13, 2003).
Finally, effective February 14, 2003, the legislature moved the crime of
“deviate sexual intercourse with a complainant who is less than 13 years of
age” to its current location at 18 Pa.C.S.A. § 3123(b). See 18 Pa.C.S.A.
§ 3123(b). Nevertheless, since the iterations of the statute constitute mere
re-numberings and do not change the substantive nature of the crime, for
purposes of this memorandum we will cite to the version of the IDSI statute
that was in effect from 1995 until February 6, 2003 – 18 Pa.C.S.A.
§ 3123(a)(6).
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On January 9, 2011, Appellant filed a timely, pro se petition under the
Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. See
Commonwealth v. Cataquet, 100 A.3d 302 (Pa. Super. 2014)
(unpublished memorandum) at 3. Although the PCRA court dismissed
Appellant’s PCRA petition without holding a hearing, this Court on appeal
vacated the PCRA court’s order and concluded that the PCRA court erred
when it dismissed the petition. In essence, we concluded that Appellant was
entitled to a hearing to determine whether his trial counsel was ineffective
for failing to file a direct appeal from the judgment of sentence. Id. at 19-
20.
On remand, the PCRA court concluded that Appellant was entitled to
relief on his claim that his trial counsel was ineffective for failing to file a
direct appeal. Therefore, by order entered on November 18, 2014, the PCRA
court reinstated Appellant’s right to file a direct appeal nunc pro tunc.
Appellant filed a timely notice of appeal from his judgment of sentence. Now
on appeal, Appellant raises the following claims:
[1.] Whether the trial court erred in permitting
Commonwealth experts to testify as to their belief that the
victim was being truthful in her accusations [against]
Appellant?
[2.] Whether Appellant was unlawfully sentenced pursuant
to unconstitutional mandatory minimum sentencing
provisions?
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Appellant’s Brief at 7 (some internal capitalization omitted).5
Appellant first claims that the trial court erred when it “permitt[ed two]
Commonwealth experts to testify as to their belief that the victim was being
truthful in her accusations [against] Appellant.” Appellant’s Brief at 7 and
15. This claim is waived, as Appellant did not object to the alleged
inappropriate testimony at trial. See N.T. Trial, 9/16/09, at 158-162 and
181-184; Commonwealth v. Pearson, 685 A.2d 551, 555 (Pa. Super.
1996) (“[f]ailure to raise a contemporaneous objection to the evidence at
trial waives that claim on appeal”); Pa.R.A.P. 302(a) (“[i]ssues not raised in
the lower court are waived and cannot be raised for the first time on
appeal”); see also Commonwealth v. Baumhammers, 960 A.2d 59, 73
(Pa. 2008) (holding that, where the appellant was required to lodge a
contemporaneous objection to the evidence at trial and failed to do so,
setting forth the issue in a post-sentence motion did not preserve the issue
on appeal).
For Appellant’s second claim on appeal, he contends that his sentence
is illegal, as he was sentenced to four mandatory minimum terms of
imprisonment under 42 Pa.C.S.A. § 9718. Appellant’s Brief at 11. Appellant
bases his contention on Commonwealth v. Wolfe, 106 A.3d 800 (Pa.
Super. 2014), appeal granted, 121 A.3d 433 (Pa. 2015), where this Court
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5
For ease of discussion, we have re-ordered Appellant’s claims on appeal.
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held that a version of Section 9718 that was in effect from January 1, 2007
until August 17, 2014, was unconstitutional in light of Alleyne v. United
States, ___ U.S. ___, 133 S.Ct. 2151 (2013) and Commonwealth v.
Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc).6
We conclude that Appellant’s sentence is illegal, but not for the reason
cited by Appellant. Rather, we conclude that the trial court illegally
sentenced Appellant to two mandatory minimum terms of imprisonment for
aggravated indecent assault of a person less than 13 years of age (18
Pa.C.S.A. § 3125(a)(7)), in violation of the prohibition against ex post facto
laws. We also conclude that Appellant’s two mandatory minimum sentences
for IDSI are not illegal in light of either Wolfe or Alleyne. Nevertheless,
since we conclude that Appellant’s two mandatory minimum terms of
imprisonment for aggravated indecent assault have caused his sentence to
be illegal, we must vacate these two sentencing terms. Further, since the
____________________________________________
6
On August 12, 2015, our Supreme Court granted the Commonwealth’s
petition for allowance of appeal in Wolfe and agreed to consider the
following claim:
Whether the Superior Court of Pennsylvania’s sua sponte
determination that the ten year mandatory minimum
sentence for involuntary deviate sexual intercourse (Person
less than 16 years) imposed pursuant to 42 Pa.C.S.A.
§ 9718(a)(1) is facially unconstitutional is erroneous as a
matter of law?
Commonwealth v. Wolfe, 121 A.3d 433 (Pa. 2015) (per curiam order).
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trial court ordered that all of Appellant’s sentences be served consecutively
to one another, it is likely that our disposition disturbs the trial court’s
overall sentencing scheme. Therefore, we vacate Appellant’s entire
judgment of sentence and remand for resentencing. We will explain.
As this Court has held, “[a]pplication of a mandatory minimum
sentence gives rise to illegal sentence concerns, even where the sentence is
within the statutory limits.” Commonwealth v. Watley, 81 A.3d 108, 118
(Pa. Super. 2013) (en banc). “Legality of sentence questions are not
waivable and may be raised sua sponte by this Court.” Id. “Issues relating
to the legality of a sentence are questions of law. Our standard of review
over such questions is de novo and our scope of review is plenary.”
Commonwealth v. Ali, 112 A.3d 1210, 1225 (Pa. Super. 2015) (internal
corrections omitted).
The mandatory minimum sentencing statute in this case – 42
Pa.C.S.A. § 9718 – was originally enacted on December 30, 1982, with the
legislation effective 60 days from the date of enactment. Section 9718 was
then amended in 1995, 2004, 2006, and 2014. In this case, the trial court
did not identify the version (or versions) of Section 9718 that it applied
when it sentenced Appellant. Nevertheless, it is apparent that, when the
trial court sentenced Appellant to serve the two mandatory minimum terms
of imprisonment for aggravated indecent assault of a person less than 13
years of age (18 Pa.C.S.A. § 3125(a)(7)), the trial court employed the
version of Section 9718 that was in effect from November 30, 2004 until
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December 31, 2006.7 This conclusion is a result of several factors. First,
the version of Section 9718 that was in effect from November 30, 2004 until
December 31, 2006 provides for the penalties that Appellant actually
received for his aggravated indecent assault convictions. Specifically, the
version of Section 9718 that was in effect from November 30, 2004 until
December 31, 2006 provides:
(a) Mandatory sentence.—
...
(3) A person convicted of the following offenses shall be
sentenced to a mandatory term of imprisonment as follows:
18 Pa.C.S. § 3125(a)(7) – not less than two and one-
half years.
42 Pa.C.S.A. § 9718 (effective from November 30, 2004 until December 31,
2006).
This version of Section 9718 thus corresponds with Appellant’s
sentences of three to six years’ imprisonment for aggravated indecent
assault of a person less than 13 years of age (18 Pa.C.S.A. § 3125(a)(7)).
Second, when Section 9718 was amended in 2004, the legislature
specifically declared that 42 Pa.C.S.A. § 9718(a)(3) – which established the
____________________________________________
7
Appellant has failed to identify the version of Section 9718 under which he
was sentenced and Appellant has never claimed that the trial court
committed any error in sentencing him under the particular version of
Section 9718 that it did. See Appellant’s Brief at 11-15.
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mandatory minimum sentence for aggravated indecent assault of a person
less than 13 years of age (18 Pa.C.S.A. § 3125(a)(7)) – would have
retroactive effect. In particular, the Act of November 30, 2004, P.L. 1703,
No. 217, § 6 declares: “[t]he addition of 42 Pa.C.S.A. § 9718(a)(3) shall
apply to individuals sentenced on or after the effective date of this section.”
Act of November 30, 2004, P.L. 1703, No. 217, § 6. Therefore, since
Appellant was sentenced “on or after” November 30, 2004, the legislation
declared that the trial court must apply Section 9718(a)(3) to Appellant’s
conviction for aggravated indecent assault of a person less than 13 years of
age (18 Pa.C.S.A. § 3125(a)(7)).
Third, under the prior version of 42 Pa.C.S.A. § 9718 – which was in
effect from 1995 until November 29, 2004 – the statute did not provide a
mandatory minimum punishment for violation of aggravated indecent assault
of a person less than 13 years of age (18 Pa.C.S.A. § 3125(a)(7)).8 See 42
Pa.C.S.A. § 9718(a) (effective from 1995 until November 29, 2004) (“A
person convicted of the following offenses when the victim is less than 13
years of age shall be sentenced to a mandatory term of imprisonment as
____________________________________________
8
We note that, at the time Appellant committed the aggravated indecent
assault upon J.R., aggravated indecent assault upon a complainant who is
less than 13 years of age was codified at 18 Pa.C.S.A. § 3125(7). See 18
Pa.C.S.A. § 3125(7) (effective from 1995 until February 6, 2003). However,
the version of 42 Pa.C.S.A. § 9718 which was in effect from 1995 until
November 29, 2004 also did not provide a penalty for violation of 18
Pa.C.S.A. § 3125(7).
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follows: . . . 18 Pa.C.S. 3125(1) through (6) (relating to aggravated
indecent assault) – not less than two and one-half years”) (emphasis
added). Therefore, since Appellant received a mandatory minimum
sentence for violating 18 Pa.C.S.A. § 3125(a)(7), the trial court could not
have sentenced Appellant under the version of Section 9718 that was in
effect from 1995 until November 29, 2004.
Finally, the version of Section 9718 that was in effect at the time of
sentencing provided far more severe mandatory minimum prison terms for
aggravated indecent assault than what Appellant received. See 42
Pa.C.S.A. § 9718(a) (effective from January 1, 2007 until August 17, 2014)
(providing: “(3) A person convicted of the following offenses shall be
sentenced to a mandatory term of imprisonment as follows: . . . 18 Pa.C.S.
§ 3125(a)(7) – not less than five years”) (emphasis added).
As such, with respect to Appellant’s sentences for aggravated indecent
assault of a person less than 13 years of age (18 Pa.C.S.A. § 3125(a)(7)),
the trial court could only have applied the version of Section 9718 that was
in effect from November 30, 2004 until December 31, 2006.
In the case at bar, however, the jury concluded that Appellant
committed the aggravated indecent assaults upon J.R. “between January
[] 2002 [and] January 2003.” Verdict Slip, 9/22/09, at 1 (emphasis
added). Further, as noted above, at the time Appellant committed the
aggravated indecent assaults upon J.R., Section 9718 did not provide for any
mandatory minimum sentence for the violation of 18 Pa.C.S.A. § 3125(a)(7).
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See 42 Pa.C.S.A. § 9718(a) (effective from 1995 until November 29, 2004)
(“A person convicted of the following offenses when the victim is less than
13 years of age shall be sentenced to a mandatory term of imprisonment as
follows: . . . 18 Pa.C.S. 3125(1) through (6) (relating to aggravated
indecent assault) – not less than two and one-half years”) (emphasis
added). Because the trial court imposed a mandatory minimum sentence for
aggravated indecent assault of a person who is less than 13 years of age (18
Pa.C.S.A. § 3125(a)(7)) that did not exist at the time Appellant committed
his offenses, Appellant’s mandatory minimum sentences for aggravated
indecent assault of a person who is less than 13 years old (18 Pa.C.S.A.
§ 3125(a)(7)) are in violation of the prohibition against ex post facto laws
and are illegal. Commonwealth v. Rose, ___ A.3d ___, 2015 WL 7283338
(Pa. 2015) (holding that “a defendant convicted of third-degree murder must
be sentenced under the sentencing statute in effect at the time the
defendant committed the ultimately deadly assault upon the victim,” and not
under the sentencing statute that existed at the time the victim actually
died, some 14 years later); Alleyne v. United States, ___ U.S. ___, 133
S.Ct. 2151, 2160-2161 (2013) (“criminal statutes have long specified both
the floor and ceiling of sentence ranges, which is evidence that both define
the legally prescribed penalty. This historical practice allowed those who
violated the law to know, ex ante, the contours of the penalty that the
legislature affixed to the crime – and comports with the obvious truth that
the floor of a mandatory range is as relevant to wrongdoers as the ceiling”).
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We must therefore vacate Appellant’s sentences for aggravated indecent
assault of a person less than 13 years of age (18 Pa.C.S.A. § 3125(a)(7)).
With respect to Appellant’s IDSI convictions, J.R. specifically testified:
that she was six years old when Appellant began molesting her; that
Appellant abused her “just about every[] day for about a year;” and, that
she was seven years old the “last [time she was] at that house that had the
attic.” N.T. Trial, 9/15/09, at 81-83. Since J.R. was born in April 1995, the
last time Appellant could have committed IDSI upon J.R. was April 2003.
However, the version of 42 Pa.C.S.A. § 9718 that was in effect from 1995
until November 29, 2004 and the version of 42 Pa.C.S.A. § 9718 that was in
effect from November 30, 2004 until December 31, 2006 provide the same
mandatory minimum punishment for the offense of IDSI. Given this, we
shall treat the trial court’s sentencing order as imposing the sentencing
provisions included within the version of Section 9718 that was in effect
from 1995 until November 29, 2004. In this connection, we note that, not
only do Appellant’s sentences of five-and-a-half to eleven years’
imprisonment for IDSI with a person less than 13 years of age (18 Pa.C.S.A.
§ 3123(a)(6)) correspond with the version of 42 Pa.C.S.A. § 9718 that was
in effect from 1995 until November 29, 2004, but the version of 42 Pa.C.S.A.
§ 9718 that was in effect at the time of sentencing provided far more severe
mandatory minimum prison terms than what Appellant received. See 42
Pa.C.S.A. § 9718(a) (effective from January 1, 2007 until August 17, 2014)
(providing: “[a] person convicted of the following offenses when the victim
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is under 16 years of age shall be sentenced to a mandatory term of
imprisonment as follows: . . . 18 Pa.C.S. § 3123 (relating to involuntary
deviate sexual intercourse) – not less than ten years”).9 Therefore, with
respect to Appellant’s two mandatory minimum sentences for IDSI, we
conclude that the trial court applied the version of 42 Pa.C.S.A. § 9718 that
was in effect from 1995 until November 29, 2004.
We must now determine whether Appellant’s mandatory minimum
sentences for IDSI with a person who is less than 13 years of age are illegal
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9
Again, we note that the penalties for IDSI were identical under the version
of Section 9718 that was in effect from 1995 until November 29, 2004 and
the version of Section 9718 that was in effect from November 30, 2004 until
December 31, 2006. Compare 42 Pa.C.S.A. § 9718 (effective from 1995
until November 29, 2004) (“[a] person convicted of the following offenses
when the victim is under 16 years of age shall be sentenced to a mandatory
term of imprisonment as follows: . . . 18 Pa.C.S. § 3123 (relating to
involuntary deviate sexual intercourse) – not less than five years”); 42
Pa.C.S.A. § 9718 (effective from November 30, 2004 until December 31,
2006) (same).
Further, the trial court’s error at sentencing – where the trial court
concluded that Appellant was convicted of IDSI of a person who was “less
than 16 years of age” when the jury, in fact, found Appellant guilty of IDSI
with a person who was “less than 13 years of age” – is harmless in light of
the fact that both versions of 42 Pa.C.S.A. § 9718 provide a five-year
mandatory minimum sentence for violating “18 Pa.C.S. § 3123 (relating to
involuntary deviate sexual intercourse) . . . when the victim is under 16
years of age.” Compare 42 Pa.C.S.A. § 9718 (effective from 1995 until
November 29, 2004) (“[a] person convicted of the following offenses when
the victim is under 16 years of age shall be sentenced to a mandatory term
of imprisonment as follows: . . . 18 Pa.C.S. § 3123 (relating to involuntary
deviate sexual intercourse) – not less than five years”); 42 Pa.C.S.A. § 9718
(effective from November 30, 2004 until December 31, 2006) (same).
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in light of Wolfe and Alleyne.10 In this case, Appellant was sentenced to
two mandatory minimum terms of imprisonment for IDSI, under the version
of Section 9718 that was in effect from 1995 until November 29, 2004 – and
not under the version of the statute that this Court held unconstitutional in
Wolfe. Further, the version of Section 9718 that was effective from 1995
until November 29, 2004 did not contain any provision or subsection that the
Wolfe Court later held unconstitutional. Therefore, we conclude that Wolfe
does not control this case and that Wolfe does not invalidate the version of
Section 9718 under which Appellant was sentenced. Hence, Appellant’s
sentence is not illegal under Wolfe. We also conclude that Appellant’s
sentence is not illegal in light of Alleyne. We will explain.
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States
Supreme Court held: “[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” Apprendi, 530 U.S. at 489. Further, in Alleyne, the United States
Supreme Court expanded “Apprendi’s basic jury-determination rule to
mandatory minimum sentences.” Alleyne, ___ U.S. at ___, 133 S.Ct. at
2167 (Breyer, J., concurring). Specifically, the Alleyne Court held that,
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10
We need not undertake any Alleyne analysis for Appellant’s aggravated
indecent assault convictions, as we have found that there is no statutory
mandatory minimum punishment that applies to those offenses. See supra.
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where an “aggravating fact” increases a mandatory minimum sentence, “the
fact is an element of a distinct and aggravated crime. [The fact] must,
therefore, be submitted to the jury and found beyond a reasonable doubt.”
Alleyne, 133 S.Ct. at 2162-2163. The Alleyne Court explained:
It is indisputable that a fact triggering a mandatory
minimum alters the prescribed range of sentences to which
a criminal defendant is exposed. . . . And because the
legally prescribed range is the penalty affixed to the crime .
. . it follows that a fact increasing either end of the range
produces a new penalty and constitutes an ingredient of the
offense. . . .
It is impossible to dissociate the floor of a sentencing range
from the penalty affixed to the crime. Indeed, criminal
statutes have long specified both the floor and ceiling of
sentence ranges, which is evidence that both define the
legally prescribed penalty. This historical practice allowed
those who violated the law to know, ex ante, the contours
of the penalty that the legislature affixed to the crime – and
comports with the obvious truth that the floor of a
mandatory range is as relevant to wrongdoers as the
ceiling. A fact that increases a sentencing floor, thus, forms
an essential ingredient of the offense.
Moreover, it is impossible to dispute that facts increasing
the legally prescribed floor aggravate the punishment.
Elevating the low-end of a sentencing range heightens the
loss of liberty associated with the crime: the defendant’s
expected punishment has increased as a result of the
narrowed range and the prosecution is empowered, by
invoking the mandatory minimum, to require the judge to
impose a higher punishment than he might wish. Why else
would Congress link an increased mandatory minimum to a
particular aggravating fact other than to heighten the
consequences for that behavior? This reality demonstrates
that the core crime and the fact triggering the mandatory
minimum sentence together constitute a new, aggravated
crime, each element of which must be submitted to the jury
. . . and found beyond a reasonable doubt.
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Alleyne, 113 S.Ct. at 2160-2161 and 2163 (emphasis in original) (internal
quotations, citations, and parenthetical information omitted).
At the time Alleyne was decided, many of Pennsylvania’s mandatory
minimum sentencing statutes were written in an identical format. As an
example of this format, we shall quote the mandatory minimum sentencing
statute found at 18 Pa.C.S.A. § 7508. In relevant part, 18 Pa.C.S.A. § 7508
provides:
(a) General rule.--Notwithstanding any other provisions of
this or any other act to the contrary, the following
provisions shall apply:
(1) A person who is convicted of [possessing a
controlled substance with the intent to deliver] where
the controlled substance is marijuana shall, upon
conviction, be sentenced to a mandatory minimum term
of imprisonment and a fine as set forth in this
subsection:
(i) when the amount of marijuana involved is at least
two pounds, but less than ten pounds, or at least ten
live plants but less than 21 live plants; one year in
prison and a fine of $5,000 or such larger amount as
is sufficient to exhaust the assets utilized in and the
proceeds from the illegal activity . . .
...
(b) Proof of sentencing.--Provisions of this section shall
not be an element of the crime. Notice of the applicability of
this section to the defendant shall not be required prior to
conviction, but reasonable notice of the Commonwealth's
intention to proceed under this section shall be provided
after conviction and before sentencing. The applicability of
this section shall be determined at sentencing. The court
shall consider evidence presented at trial, shall afford the
Commonwealth and the defendant an opportunity to
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present necessary additional evidence and shall determine,
by a preponderance of the evidence, if this section is
applicable.
(c) Mandatory sentencing.--There shall be no authority
in any court to impose on an offender to which this section
is applicable a lesser sentence than provided for herein or to
place the offender on probation, parole or work release or to
suspend sentence. Nothing in this section shall prevent the
sentencing court from imposing a sentence greater than
provided herein. Sentencing guidelines promulgated by the
Pennsylvania Commission on Sentencing shall not
supersede the mandatory sentences provided herein. . . .
(d) Appellate review.--If a sentencing court refuses to
apply this section where applicable, the Commonwealth
shall have the right to appellate review of the action of the
sentencing court. The appellate court shall vacate the
sentence and remand the case to the sentencing court for
imposition of a sentence in accordance with this section if it
finds that the sentence was imposed in violation of this
section. . . .
18 Pa.C.S.A. § 7508.
Following Alleyne, mandatory minimum sentencing statutes that
followed the above format were generally deemed unconstitutional, as they
provided that: the “aggravating facts” contained in the mandatory minimum
statute were not elements of the crime; notice of either the “aggravating
facts” or of the applicability of the mandatory minimum sentencing statute
was not required prior to conviction; the applicability of the mandatory
minimum statute was to be determined at sentencing; the Commonwealth
need only prove the “aggravating facts” by a preponderance of the evidence;
a judge – and not a jury – was to act as the fact-finder for purposes of
determining the “aggravated facts;” and, if the “sentencing court refuse[d]
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to apply [the mandatory minimum sentence] where applicable, the
Commonwealth shall have the right to appellate review of the actions of the
sentencing court.” See, e.g., 18 Pa.C.S.A. § 7508(a)-(d); see also
Commonwealth v. Mosley, 114 A.3d 1072 (Pa. Super. 2015) (holding that
18 Pa.C.S.A. § 7508 is unconstitutional in light of Alleyne);
Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super. 2014) (holding that
Alleyne renders 18 Pa.C.S.A. § 7508 unconstitutional in its entirety); see
also Commonwealth v. Hopkins, 117 A.3d 247, 258-259 (Pa. 2015)
(“[a]fter Alleyne, these aspects of the statute – that the provisions are
declared not to be elements of the offense, that notice is not required prior
to conviction, that factfinding is conducted at sentencing, that the
sentencing court performs factfinding, that the applicable standard is
preponderance of the evidence, and that the Commonwealth has the right to
appeal where the imposed sentence was found to be in violation of the
statute – are now infirm”).
Further, in Newman, an en banc panel of this Court held that the
above-summarized, unconstitutional provisions of Pennsylvania’s mandatory
minimum sentencing statutes were not severable from the remaining, valid
provisions of the statutes. Therefore, Newman held that mandatory
minimum sentencing statutes such as 18 Pa.C.S.A. § 7508 were
unconstitutional in their entirety. Newman, 99 A.3d at 86. Later, in
Hopkins, our Supreme Court agreed with Newman and held that
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mandatory minimum sentencing statutes such as 18 Pa.C.S.A. § 7508 were
wholly unconstitutional. Hopkins, 117 A.3d at 247.
In Commonwealth v. Wolfe, a panel of this Court extended
Newman and held that a version of 42 Pa.C.S.A. § 9718, which was in
effect from January 1, 2007 until August 17, 2014, was unconstitutional
under Alleyne.11 Wolfe, 106 A.3d at 805. In Wolfe, the 18-year-old
defendant had sexual intercourse with a 13-year old female; he was then
charged with and convicted of IDSI with a person less than 16 years of age,
pursuant to 18 Pa.C.S.A. § 3123(a)(7). Wolfe, 106 A.3d at 805. 18
Pa.C.S.A. § 3123(a)(7) provides:
A person commits a felony of the first degree when the
person engages in deviate sexual intercourse with a
complainant:
...
(7) who is less than 16 years of age and the person is
four or more years older than the complainant and the
complainant and person are not married to each other.
18 Pa.C.S.A. § 3123(a)(7).
Following Mr. Wolfe’s conviction, the trial court sentenced him to a
mandatory minimum, ten-year term of imprisonment for the IDSI conviction,
pursuant to the version of 42 Pa.C.S.A. § 9718 that was in effect from
____________________________________________
11
At the time Wolfe was decided, our Supreme Court had yet to decide
Hopkins.
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January 1, 2007 until August 17, 2014. See Wolfe, 106 A.3d at 800. In
relevant part, this version of Section 9718 read:
(a) Mandatory sentence.—
(1) A person convicted of the following offenses when the
victim is under 16 years of age shall be sentenced to a
mandatory term of imprisonment as follows:
...
18 Pa.C.S. § 3123 (relating to involuntary deviate sexual
intercourse) – not less than ten years.
...
(c) Proof at sentencing.--The provisions of this section
shall not be an element of the crime, and notice of the
provisions of this section to the defendant shall not be
required prior to conviction, but reasonable notice of the
Commonwealth's intention to proceed under this section
shall be provided after conviction and before sentencing.
The applicability of this section shall be determined at
sentencing. The court shall consider any evidence
presented at trial and shall afford the Commonwealth and
the defendant an opportunity to present any necessary
additional evidence and shall determine, by a
preponderance of the evidence, if this section is applicable.
(d) Authority of court in sentencing.--There shall be no
authority in any court to impose on an offender to which
this section is applicable any lesser sentence than provided
for in subsection (a) or to place the offender on probation or
to suspend sentence. Nothing in this section shall prevent
the sentencing court from imposing a sentence greater than
that provided in this section. Sentencing guidelines
promulgated by the Pennsylvania Commission on
Sentencing shall not supersede the mandatory sentences
provided in this section.
(e) Appeal by Commonwealth.--If a sentencing court
refuses to apply this section where applicable, the
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Commonwealth shall have the right to appellate review of
the action of the sentencing court. The appellate court shall
vacate the sentence and remand the case to the sentencing
court for imposition of a sentence in accordance with this
section if it finds that the sentence was imposed in violation
of this section.
42 Pa.C.S.A. § 9718 (effective from January 1, 2007 until August 17, 2014).
On direct appeal, a panel of this Court sua sponte considered whether
Section 9718 was unconstitutional, and whether Mr. Wolfe’s sentence was
illegal, in light of Newman and Alleyne. Wolfe, 106 A.3d at 801-802.
To begin, the Wolfe Court was cognizant that the “aggravating fact,”
which triggered Mr. Wolfe’s mandatory minimum sentence for IDSI, was that
the victim was “under 16 years of age” – and that this particular aggravating
fact was “also contained as an element within the subsection of the IDSI
statute under which [Mr. Wolfe] was convicted.” Wolfe, 106 A.3d at 805;
see also 18 Pa.C.S.A. § 3123(a)(7) (“[a] person commits a felony of the
first degree when the person engages in deviate sexual intercourse with a
complainant . . . who is less than 16 years of age”). Thus, the Wolfe Court
observed, “in order to convict [Mr. Wolfe] of IDSI, the Commonwealth was
already required to prove beyond a reasonable doubt that the victim was
less than 16 years old.” Wolfe, 106 A.3d at 805.
However, the mandatory minimum sentencing statute at issue in
Wolfe followed the same format that was seen in many of Pennsylvania’s
mandatory minimum sentencing statutes – and the format that the
Newman Court had already concluded was fatally unconstitutional.
Specifically, the version of 42 Pa.C.S.A. § 9718, which was in effect from
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January 1, 2007 until August 17, 2014, provided that: the “aggravating
facts” contained in the mandatory minimum statute were not elements of
the crime; notice of either the “aggravating facts” or of the applicability of
the mandatory minimum sentencing statute was not required prior to
conviction; the applicability of the mandatory minimum statute was to be
determined at sentencing; the Commonwealth need only prove the
“aggravating facts” by a preponderance of the evidence; a judge – and not a
jury – was to act as the fact-finder for purposes of determining the
“aggravated facts;” and, if the “sentencing court refuse[d] to apply [the
mandatory minimum sentence] where applicable, the Commonwealth shall
have the right to appellate review of the actions of the sentencing court.”
42 Pa.C.S.A. § 9718(c)-(e) (effective from January 1, 2007 until August 17,
2014).
As the Wolfe Court held, since Alleyne rendered the above provisions
unconstitutional and since Section 9718 followed “the same format as the
[mandatory minimum sentencing] statute[] [that was] struck down as
facially unconstitutional in Newman,” the Wolfe Court, too, was required to
conclude that Section 9718 was facially unconstitutional. Wolfe, 106 A.3d
at 805. The Wolfe Court explained:
in this case, although the jury was required to find that the
victim was less than 16 years of age in order to convict [Mr.
Wolfe], we cannot ignore the binding precedent from an en
banc decision of this Court. Newman stands for the
proposition that mandatory minimum sentence statutes in
Pennsylvania of this format are void in their entirety. As
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Section 9718 is indistinguishable from the statute[] struck
down in Newman . . . , we are constrained to conclude that
Section 9718 is also facially void. As a result, we conclude
the trial court erred in imposing the ten-year mandatory
minimum.
Wolfe, 106 A.3d at 806 (some internal citations omitted).
In the case at bar, Appellant claims that he is entitled to relief simply
because the Wolfe Court struck down the particular version of Section 9718
that was at issue in that case. Appellant’s Brief at 14. Yet, as was explained
above, Appellant was not sentenced under the version of Section 9718 that
was struck down in Wolfe. Rather, the trial court sentenced Appellant
under the version of Section 9718 that was in effect from 1995 until
November 29, 2004. In relevant part, this version read:
(a) Mandatory sentence.—
(1) A person convicted of the following offenses when the
victim is under 16 years of age shall be sentenced to a
mandatory term of imprisonment as follows:
...
18 Pa.C.S. § 3123 (relating to involuntary deviate sexual
intercourse) – not less than five years.
42 Pa.C.S.A. § 9718 (effective from 1995 until November 29, 2004).
As can be seen, the version of Section 9718 that was in effect from
1995 until November 29, 2004 did not follow the “same format” as the
version of Section 9718 that the Wolfe Court struck down – and it did not
follow “the same format as the [mandatory minimum sentencing] statute[]
[that was] struck down as facially unconstitutional in Newman.” Wolfe,
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106 A.3d at 805. Rather, the version of Section 9718 under which Appellant
was sentenced is spartan: it simply states the “aggravating fact” (which is
also an element of the crime) and then specifies the punishment for
violation. Moreover, the version of Section 9718 under which Appellant was
sentenced does not contain any provision that the Newman, Wolfe, or
Hopkins Courts concluded were unconstitutional. Specifically, the version
of Section 9718 that was in effect from 1995 until November 29, 2004 does
not contain any provision declaring: “that the [aggravating facts] are
declared not to be elements of the offense, that notice is not required prior
to conviction, that factfinding is conducted at sentencing, that the
sentencing court performs factfinding, that the applicable standard is
preponderance of the evidence, [or] that the Commonwealth has the right to
appeal where the imposed sentence was found to be in violation of the
statute.”12 Hopkins, 117 A.3d at 258-259.
Therefore, we conclude that Wolfe does not control this case and that
Wolfe does not invalidate the version of Section 9718 under which Appellant
was sentenced. Appellant’s sentences for IDSI are thus not illegal under
Wolfe.
____________________________________________
12
Further, with respect to Appellant’s sentences for IDSI, our analysis would
not change even if the trial court had sentenced Appellant under the version
of Section 9718 that was in effect from November 30, 2004 until December
31, 2006. To be sure, 42 Pa.C.S.A. § 9718(c), (d), and (e) did not become
effective until January 1, 2007.
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We also conclude that Appellant’s sentences for IDSI are not illegal
under Alleyne.13 In this case, Appellant was convicted of IDSI with a
person less than 13 years of age (18 Pa.C.S.A. § 3123(a)(6)). This statute
provides:
§ 3123. Involuntary deviate sexual intercourse.
(a) Offense defined.--A person commits a felony of the first
degree when the person engages in deviate sexual
intercourse with a complainant:
...
(6) who is less than 13 years of age[.]
18 Pa.C.S.A. § 3123(a)(6) (effective from 1995 until February 6, 2003).
Appellant’s mandatory minimum sentence for IDSI was triggered
simply by virtue of the fact that the “victim [wa]s under 16 years of age” –
and this fact was an element of Appellant’s conviction for IDSI with a person
who is “less than 13 years of age.” 42 Pa.C.S.A. § 9718(a)(1) (effective
____________________________________________
13
Although Appellant’s direct appeal was not literally pending at the time
Alleyne was decided, it is well-settled that Appellant is entitled to whatever
benefit the constitutional rule announced in Alleyne would bring him, as this
is a nunc pro tunc direct appeal from Appellant’s judgment of sentence.
Commonwealth v. Little, 248 A.2d 32 (Pa. 1968) (the appellant was
entitled to benefit from the rule announced in the 1966 Miranda decision, in
a “nunc pro tunc [direct] appeal of a case tried on April 17, 1964”);
Commonwealth v. McCloud, 383 A.2d 894 (Pa. 1978) (“[the Pennsylvania
Supreme Court] has held that the [Commonwealth v. McCutchen, 343
A.2d 669 (Pa. 1975)] line of cases is to be applied to cases on direct appeal.
The same is true where, by post conviction relief, a petitioner is granted a
direct appeal as if timely filed as here”); Commonwealth ex rel. Smith v.
Meyers, 261 A.2d 550 (Pa. 1970).
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from 1995 until November 29, 2004) (“[a] person convicted of the following
offenses when the victim is under 16 years of age shall be sentenced to a
mandatory term of imprisonment as follows: . . . 18 Pa.C.S. § 3123 (relating
to involuntary deviate sexual intercourse) – not less than five years”). Thus,
in this case, Appellant had notice, “ex ante, [of] the contours of the penalty
that the legislature affixed to” his crimes and application of the mandatory
minimum sentencing statute was dependent solely upon Appellant’s
conviction for the crimes at trial, by a jury, based upon proof of all facts
beyond a reasonable doubt. Alleyne, 113 S.Ct. at 2160-2161 and 2163.
Appellant’s mandatory minimum sentences for IDSI thus do not offend
Alleyne and Appellant’s sentences for IDSI are not illegal. Appellant’s claim
to the contrary fails.
However, since the trial court ordered that all of Appellant’s sentences
be served consecutive to one another, our action – in vacating Appellant’s
sentences for aggravated indecent assault of a person less than 13 years of
age (18 Pa.C.S.A. § 3125(a)(7)) – might have disturbed the trial court’s
overall sentencing scheme. Therefore, we vacate Appellant’s judgment of
sentence and remand for resentencing. Commonwealth v. Williams, 997
A.2d 1205, 1210-1211 (Pa. Super. 2010) (“if a correction by this Court may
upset the sentencing scheme envisioned by the trial court, the better
practice is to remand [for resentencing]”) (internal quotations, citations, and
corrections omitted).
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Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
President Judge Gantman joins this memorandum.
Judge Platt files a Concurring and Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2016
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