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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RAYMOND ALLEN MATTESON :
:
Appellant :
: No. 1911 WDA 2015
Appeal from the PCRA Order November 16, 2015
in the Court of Common Pleas of Fayette County Criminal Division
at No(s): CP-26-CR-0002051-2013
BEFORE: BENDER, P.J.E., PANELLA, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 10, 2016
Appellant, Raymond Allen Matteson, appeals from the order entered in
the Fayette County Court of Common Pleas denying his first petition filed
pursuant to the Post Conviction Relief Act1 (“PCRA”). Appellant claims his
sentence is illegal in light of Alleyne v. United States, 133 S. Ct. 2151
(2013). We affirm.
We summarize the relevant procedural history as follows. On May 6,
2014, a jury found Appellant guilty of aggravated assault,2 simple assault,3
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. § 2702(a)(1).
3
18 Pa.C.S. § 2701(a)(1).
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endangering the welfare of children (“EWOC”),4 and recklessly endangering
another person (“REAP”)5 stemming from his physical abuse of a twenty-
month-old child (“Victim”) in his care. On May 8, 2014, the Commonwealth
filed a notice of its intention to seek the mandatory minimum sentence at 42
Pa.C.S. § 9718(a)(2). Commonwealth’s Sentencing Notice, 5/8/14. Section
9718(a)(2) provided, in relevant part, that a person convicted of aggravated
assault under 18 Pa.C.S. § 2702(a)(1) “when the victim is less than 13
years of age shall be sentenced to a mandatory term of imprisonment” of
not less than five years. 42 Pa.C.S. § 9718(a)(2).
The trial court held a sentencing hearing on May 12, 2014. The
Commonwealth asked the trial court to “depart from the guidelines. And
impose a statutory maximum sentence of ten to twenty years” for
aggravated assault. N.T. Sentencing Hr’g, 5/12/14, at 8. Before imposing
the sentence, the trial court addressed Appellant:
[Y]ou were taken into this child’s home by his
mother, with whom you had a relationship. In that
home, you became a child abuser and batterer, and
preyed upon [Victim] who at that time, in September
and October, was nineteen or twenty months old. . .
. While my heart, soul, my very being are each filled
with compassion, pity, sympathy and heartbreak, not
even one iota of that is for you. Every single bit of it
is for [Victim], your victim, this child that you have
battered and abused. Each day during your trial, I
passed by this child as he sat in his wheelchair in the
4
18 Pa.C.S. § 4304(a)(1).
5
18 Pa.C.S. § 2705.
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hallway, and witnessed the damage that you caused
to him and to his life. And how your depraved acts
will impact upon him in the years to come. We can
only hope and pray that he will receive whatever
help, support and love necessary to enable him to
live as normal a life as possible as he recovers from
the injuries caused by you. Because of you, he
apparently will be unable to enjoy the quality of life
of others. Not only at this age but in the future. You
have robbed him of that hope and that life and that
future. Your prior record which includes prior
Protection from Abuse violations, two prior simple
assault convictions, and an Indirect Criminal
Contempt, which I assume was from a violation of a
Protection from Abuse Order, shows this [c]ourt that
you are, and have been, an abuser. While this
[c]ourt cannot undo what you have done, or change,
alter, remove whatever evil abherrations [sic]
permeate your body, your thoughts and your soul,
we certainly can remove you from society, thereby
denying your access to other children and other
victims. Clearly, your acts show that our community
needs protection from you, and that can be
accomplished only by imprisoning you. . . . From the
evidence adduced at your trial, it is apparent that
you showed no mercy to [Victim], a child of twenty
months, helpless and dependent upon you, and we
will show no mercy to you.
Id. at 11-13.
The trial court sentenced Appellant to an aggregate term of eleven to
twenty-two years’ imprisonment. Specifically, on the aggravated assault
charge, the trial court sentenced Appellant to “[u]ndergo imprisonment at a
State Correctional Institute for a period of not less than ten (10) years nor
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more than twenty (20) years under 42 Pa.C.S.[] Section 9718(a)(2).” 6 Trial
Ct. Order, 5/12/14, at 1 (unpaginated). The trial court explained its
sentence as follows: “As a departure, the [c]ourt, has imposed this sentence
above all sentencing guideline ranges, having done so due to the
serious nature of the offense, the failure of [Appellant] to provide proper
care, and the twenty (20) month old victim being completely at the mercy of
[Appellant].” Id. at 3 (emphasis added); N.T. at 15. On the sentencing
guideline form for this offense, the trial court noted the offense gravity score
was eleven, Appellant’s prior record score was one, and that the sentence
fell above the guideline range. See Sentencing Guideline Form, 5/14/14.
Appellant appealed his judgment of sentence,7 and this Court
affirmed on December 15, 2014. Commonwealth v. Matteson, 861 WDA
2014 (Pa. Super. Dec. 15, 2014) (unpublished memorandum), appeal
denied, 596 WAL 2014 (Pa. Apr. 28, 2015). The Pennsylvania Supreme
Court denied allowance of appeal on April 28, 2015.
Appellant filed a timely PCRA petition on July 6, 2015,8 and a
counseled, amended petition on September 17, 2015. Therein, Appellant
6
The trial court imposed a term of imprisonment of one to two years for the
EWOC offense consecutive to the aggravated assault sentence and no
further penalty on simple assault and REAP.
7
Appellant did not challenge the length of his sentence on direct appeal.
See Matteson, 861 WDA 2014 at 6.
8
See 42 Pa.C.S. § 9545(b)(1).
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argued that the trial court sentenced him on the aggravated assault charge
to “a mandatory minimum” of ten to twenty years’ imprisonment pursuant to
42 Pa.C.S. § 9718(a)(2), based on the age of Victim. Am. Pet., 9/17/15, at
1-2 (unpaginated). Appellant reasoned that the United States Supreme
Court’s decision in Alleyne and subsequent opinions by this Court applying
Alleyne render his sentence unconstitutional and entitle him to PCRA relief.
Id. at 2-3. On November 16, 2015, the PCRA court issued an order and
accompanying opinion and denied Appellant’s petition. 9 In denying the
petition, the PCRA court expressly noted it sentenced Appellant to the
statutory maximum sentence and not the mandatory minimum of five years.
PCRA Court Op., 12/16/15, at 2.
Appellant filed a timely notice of appeal and court-ordered Pa.R.A.P.
1925(b) statement. The trial court filed a responsive Rule 1925(a) opinion,
wherein it explained the imposition of Appellant’s sentence was pursuant to
its discretionary authority in consideration of several factors. PCRA Court
Op., 12/18/15 at 2-4
Instantly, the [c]ourt had the benefit of a pre-
sentence report and stated on the record in the
sentencing proceeding that it had taken into
consideration the nature and seriousness of the
offenses, and that the victim was a child. [The
9
The PCRA court scheduled a hearing on Appellant’s petition for November
12, 2015. While there is no indication on the docket of a hearing that day,
the PCRA court order denying Appellant’s petition stated it was denying the
petition “after full hearing, and upon consideration of the record[.]” PCRA
Court Order, 11/16/15.
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court] also considered the number of offenses to
which [] Appellant had been found guilty. Further,
[the court] stated that [it was] imposing a sentence
above the guideline ranges due to the serious nature
of the offenses and the failure of Appellant to provide
proper care to the victim, a twenty month old child
who was at the mercy of Appellant.
Id.
On appeal, Appellant raises the following issue for our review.
Whether the PCRA court erred in holding that
Appellant’s sentence – for the charge of aggravated
assault on a child less than thirteen (13) years of
age, of ten (10) to twenty (20) years[’] incarceration
– does not constitute an illegal mandatory minimum
sentence?
Appellant’s Brief at 3.
Appellant argues the PCRA court erred in denying his petition “because
the [c]ourt believed that the claim was time barred.” Id. at 7. He argues
the trial court specifically sentenced him pursuant to section 9718(a)(2),
which has been declared facially unconstitutional by this Court’s decision in
Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014), appeal
granted, 121 A.3d 433 (Pa. 2015). Id. at 11-12. Therefore, Appellant
claims he is subject to an illegal sentence. Id. at 12. We hold no relief is
due.
Our standard of review over PCRA orders is limited to whether the
findings of the PCRA court are supported by the record and free of legal
error. Commonwealth v. Ruiz, 131 A.3d 54, 57 (Pa. Super. 2015). “The
PCRA court’s findings will not be disturbed unless there is no support for the
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findings in the certified record.” Id. (citation omitted). A challenge to the
legality of a sentence is a question of law. Wolfe, 106 A.3d at 801-02. Our
standard of review is de novo. Id. at 802.
Aggravated assault under subsection (a)(1) is a first-degree felony.
18 Pa.C.S. § 2702(b). Section 1103 provides that first-degree felonies are
punishable by a term of imprisonment of “not more than 20 years.” Id.
§ 1103(1). The standard guideline range for offenses with an offense
gravity score of eleven and a prior record score of one is three and one-half
to five years’ imprisonment.10 See 204 Pa. Code § 303.16(a). “In every
case where a sentencing court imposes a sentence outside of the sentencing
guidelines, the court must provide in open court a contemporaneous
statement of reasons in support of its sentence.” Commonwealth v.
Bowen, 55 A.3d 1254, 1263-64 (Pa. Super. 2012) (citing 42 Pa.C.S.
§ 9721).
In Wolfe, the defendant was sentenced to a mandatory minimum
sentence pursuant to Section 9718(a)(1) and challenged his sentence on
direct appeal. Id. at 801. The Wolfe Court explained, “[i]n Alleyne, the
Supreme Court held that ‘facts that increase mandatory minimum sentences
must be submitted to the jury’ and must be found beyond a reasonable
doubt.” Id. at 802 (discussing Alleyne, 133 S. Ct. at 2163). The Court
10
Appellant does not dispute his prior record or offense gravity score.
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then applied this Court’s cases interpreting Alleyne and held “Section 9718
is . . . facially unconstitutional.” Id. at 805.
In Ruiz, this Court noted that a PCRA petitioner is not entitled to
retroactive application of Alleyne if the petition is untimely or the
petitioner’s judgment of sentence was final before June 13, 2013, the date
of the Alleyne decision. See Ruiz, 131 A.3d at 58. However, the Court
held that where a petitioner files a timely PCRA petition and the judgment of
sentence was not final prior to Alleyne, then the petitioner is entitled to its
application. Id. at 59-60.
Instantly, Appellant’s judgment of sentence was imposed after
Alleyne was decided, and his PCRA petition was timely. See 42 Pa.C.S.
§ 9545(b)(1). There is no support in the record for Appellant’s contention
that the trial court denied his petition because it concluded it was “time
barred.” See Appellant’s Brief at 7; Ruiz, 131 A.3d at 57. Rather, the PCRA
court explained it dismissed the petition because it did not apply Section
9718 to Appellant. PCRA Ct. Op., 11/16/15, at 2; see also PCRA Ct. Op.,
12/18/15, at 3 (noting the court considered, inter alia, the presentence
investigation report and imposed the sentence “above the sentencing
guideline ranges due to the serious nature of the offenses and the failure of
Appellant to provide proper care to the victim”). While the court referred to
Section 9718 in its sentencing order, it also explicitly stated it wished to
exceed all guideline ranges and sentence Appellant to the statutory
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maximum sentence for aggravated assault based on the seriousness of the
offense and the particular vulnerability of Appellant’s victim. N.T. at 15; see
also Trial Ct. Order, 5/12/14, at 1; PCRA Ct. Op., 11/16/15, at 2; PCRA Ct.
Op., 12/18/15, at 3; accord 18 Pa.C.S. § 1103(1); Bowen, 55 A.3d at
1263-64. The record is replete with the trial court’s rationale in sentencing
Appellant as it did, and we conclude the record supports its decision to deny
Appellant’s petition because it did not impose the sentence pursuant to
Section 9718. See Ruiz a131 A.3d at 57.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/2016
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