J-S33025-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH MICHAEL MCQUADE, JR.
Appellant No. 1413 WDA 2015
Appeal from the Order August 20, 2015
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000235-2013
BEFORE: GANTMAN, P.J., OLSON and FITZGERALD,* JJ.
MEMORANDUM BY OLSON, J.: FILED MAY 24, 2016
Appellant, Joseph Michael McQuade, Jr., appeals from the order
entered on August 20, 2015, which dismissed his first petition filed pursuant
to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We
vacate the PCRA court’s order and remand.
On June 25, 2013, the Commonwealth filed its information against
Appellant. The information declared that, between January 1, 2013 and
April 23, 2013, Appellant committed multiple sexual crimes against a 13-
year-old victim. Commonwealth’s Information, 6/23/13, at 1. The
Commonwealth charged Appellant with 28 separate counts, including four
counts of aggravated indecent assault under 18 Pa.C.S.A. § 3125(a)(1). In
relevant part, this statute declares:
(a) Offenses defined.-- . . . a person who engages in
penetration, however slight, of the genitals or anus of a
*Former Justice specially assigned to the Superior Court.
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complainant with a part of the person’s body for any
purpose other than good faith medical, hygienic or law
enforcement procedures commits aggravated indecent
assault if:
(1) the person does so without the complainant’s
consent[.]
18 Pa.C.S.A. § 3125(a)(1).
Following trial, the jury found Appellant guilty of 24 of the 28 charges,
including all four counts of aggravated indecent assault under 18 Pa.C.S.A.
§ 3125(a)(1).
On November 25, 2013, the trial court sentenced Appellant to serve an
aggregate term of 48 to 148 years in prison. Appellant’s aggregate
sentencing term included four five-year mandatory minimum sentencing
terms for his 18 Pa.C.S.A. § 3125(a)(1) convictions. The mandatory
minimum sentences were imposed pursuant 42 Pa.C.S.A. § 9718, which
declared, in relevant part:
(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. § 3125(a)(1) through (6) (relating to
aggravated indecent assault)--not less than five 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
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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
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 January 1, 2007 to August 17, 2014).
Appellant filed a notice of appeal from his judgment of sentence and,
on October 20, 2014, this Court affirmed Appellant’s judgment of sentence.
Commonwealth v. McQuade, 108 A.3d 118 (Pa. Super. 2014)
(unpublished memorandum) at 1-8. Appellant did not file a petition for
allowance of appeal with the Pennsylvania Supreme Court.
On February 17, 2015, Appellant filed a timely, pro se petition under
the PCRA. The PCRA court appointed counsel and counsel filed an amended
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petition on Appellant’s behalf. Within the amended petition, Appellant raised
the following two claims:
[1.] The [trial] court entered illegal sentences by sentencing
me on November 25, 2013, to the mandatory five [] year
minimum sentences on each of the four counts of []
aggravated indecent assault[] (18 Pa.C.S.A.
[§] 3125(a)(1)), pursuant to the mandatory minimum
sentencing provisions of [42 Pa.C.S.A. § 9718(a)(1)]. Said
sentences are illegal as said mandatory minimum
sentenc[ing] statute was then unconstitutional and its
provisions unseverable. [Alleyne v. United States, ___
U.S. ___, 133 S.Ct. 2151 (2013); see also
Commonwealth v. Miller, 102 A.3d 988 (Pa. Super.
2014); Commonwealth v. Mundy, 78 A.3d 661 (Pa.
Super. 2013); Commonwealth v. Watley, 81 A.3d 108
(Pa. Super. 2013); Commonwealth v. Newman, 99 A.3d
86 (Pa. Super. 2014)].
...
[2.] My trial counsel was ineffective for not objecting at the
time I was sentenced by the [trial] court on November 25,
2013, to the mandatory five [] year minimum sentences on
each of the four counts of [] aggravated indecent assault[]
[(18 Pa.C.S.A. § 3125(a)(1))], pursuant to the mandatory
minimum sentencing provisions of [42 Pa.C.S.A.
§ 9718(a)(1)]. Said sentences are illegal as said mandatory
minimum sentenc[ing] statute was then unconstitutional. . .
.
Appellant’s Amended PCRA Petition, 5/4/15, at 1 (some internal
capitalization omitted).
The PCRA court scheduled a hearing on Appellant’s PCRA petition and,
on August 20, 2015, the PCRA court denied Appellant post-conviction
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collateral relief.1 Appellant filed a timely notice of appeal and Appellant now
raises two claims to this Court:
[1.] Did the trial court enter illegal sentences, entitling
[Appellant] to a remand for re-sentencing, by sentencing
[Appellant] . . . to the mandatory five [] year minimum
sentences on each of the four [] counts of [] aggravated
indecent assault[] [(18 Pa.C.S.A. § 3125(a)(1))], pursuant
to the mandatory minimum sentenc[ing] provisions of [42
Pa.C.S.A. § 9718(a)(1)], where said mandatory minimum
sentenc[ing] statute has been found to be unconstitutional
and its provisions un-severable?
[2.] Was [Appellant’s] trial attorney ineffective, and
[Appellant] thereby prejudiced, such that [Appellant] is
entitled to a remand for re-sentencing, for not objecting at
the time [Appellant] was sentenced by the trial court . . . to
the mandatory five [] year minimum sentences on each of
the four [] counts of [] aggravated indecent assault[] [(18
Pa.C.S.A. § 3125(a)(1))], pursuant to the mandatory
minimum sentenc[ing] provisions of [42 Pa.C.S.A.
§ 9718(a)(1)], where said mandatory minimum
sentenc[ing] statute is unconstitutional?
Appellant’s Brief at 4 (some internal capitalization omitted).2
Appellant’s first claim entitles him to relief. We therefore vacate the
order dismissing Appellant’s petition, vacate Appellant’s judgment of
sentence, and remand this matter for re-sentencing.3
____________________________________________
1
The certified record does not contain a PCRA hearing transcript.
2
For ease of discussion, we have re-numbered Appellant’s claims on appeal.
3
Given our disposition, we will not discuss Appellant’s second numbered
claim on appeal.
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This Court’s standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA court is
supported by evidence of record and is free of legal error. Commonwealth
v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will
not be disturbed unless there is no support for the findings in the certified
record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
We apply a de novo standard of review and a plenary scope of review to
challenges involving questions of law. Commonwealth v. Rykard, 55 A.3d
117, 1183-1184 (Pa. Super. 2012), appeal denied, 64 A.3d 631 (Pa. 2013).
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,
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.
In Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014), this
Court held that a version of 42 Pa.C.S.A. § 9718 – which is the identical
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version of Section 9718 that is implicated in the current appeal – was
unconstitutional under Alleyne. Id. at 805.
In the case at bar, Appellant was found guilty of four counts of
aggravated indecent assault under 18 Pa.C.S.A. § 3125(a)(1). Appellant
was then sentenced to four five-year mandatory minimum sentencing terms
for his Section 3125(a)(1) convictions, under the same version of 42
Pa.C.S.A. § 9718 that this Court held was facially unconstitutional in Wolfe.
Moreover, the mandatory minimum sentencing statute under which
Appellant was sentenced contained an element that was not included in
Section 3125(a)(1) and that was, therefore, not submitted to the jury or
proven beyond a reasonable doubt at trial – this being the victim’s age. See
42 Pa.C.S.A. § 9718(a)(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. § 3125(a)(1) through (6)
(relating to aggravated indecent assault)--not less than five years”).
Hence, Appellant’s sentence is illegal under the plain terms of Alleyne
(as he was subjected to a mandatory minimum sentence based upon a fact
that was not submitted to the jury or proven beyond a reasonable doubt at
trial) and under the plain terms of Wolfe (as he was sentenced under a
mandatory minimum statute that this Court held was facially
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unconstitutional).4 Accordingly, we vacate the order dismissing Appellant’s
petition, vacate Appellant’s judgment of sentence, and remand this matter
for re-sentencing.
Order vacated. Judgment of sentence vacated. Case remanded for
further proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/2016
____________________________________________
4
This Court has held that Alleyne does not apply retroactively to cases on
post-conviction review. Commonwealth v. Riggle, 119 A.3d 1058 (Pa.
Super. 2015). However, Alleyne was decided on June 17, 2013 and
Appellant was not sentenced until November 25, 2013. Therefore, Appellant
is entitled to the application of Alleyne and the conclusion that, at the time
he was sentenced, Alleyne had rendered the mandatory minimum
sentencing statute at 42 Pa.C.S.A. § 9718 facially unconstitutional and
Appellant’s sentence illegal. Commonwealth v. Ruiz, 131 A.3d 54, 60 (Pa.
Super. 2015) (holding that a PCRA petitioner was entitled to the application
of Alleyne and was entitled to relief because the petitioner “raised his
[illegal sentencing] claim in a timely PCRA petition [and the petitioner’s]
judgment of sentence was ‘still pending on direct review’ when Alleyne was
decided”).
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