J-S43006-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH ROBERT KEEFER
Appellant No. 1860 MDA 2015
Appeal from the Judgment of Sentence December 2, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0004132-2013
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED JUNE 21, 2016
Appellant, Joseph Robert Keefer, appeals from the judgment of
sentence entered in the York County Court of Common Pleas, following his
jury trial convictions for rape of a child, involuntary deviate sexual
intercourse (“IDSI”) with a child, aggravated indecent assault of a child,
indecent assault, incest of a minor, and corruption of minors. 1 A jury
convicted Appellant of all charges on August 12, 2014. On December 2,
2014, the court sentenced Appellant to consecutive terms of ten (10) to
twenty (20) years’ incarceration for rape of a child and IDSI with a child,
pursuant to the mandatory minimum statute at 42 Pa.C.S.A. § 9718. The
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18 Pa.C.S.A. §§ 3121(c), 3123(b), 3125(b), 3126(a)(7), 4302(b)(1),
6301(a)(1)(ii), respectively.
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court also sentenced Appellant to a concurrent term of five (5) to ten (10)
years’ incarceration for aggravated indecent assault of a child, and
concurrent terms of one (1) to two (2) years’ incarceration for indecent
assault, incest of a minor, and corruption of minors. Appellant filed a timely
post-sentence motion on December 11, 2014. On February 4, 2015,
Appellant filed a motion to extend the 120-day disposition period for the
post-sentence motion. The court granted a thirty-day extension. On May 7,
2015, the court denied Appellant’s post-sentence motion. On October 20,
2015, Appellant filed a timely petition pursuant to the Post Conviction Relief
Act, 42 Pa.C.S.A. §§ 9541-9546, seeking leave to file a direct appeal nunc
pro tunc. The court reinstated Appellant’s direct appeal rights that same
day. Appellant timely filed a notice of appeal nunc pro tunc on October 22,
2015. The court ordered Appellant to file a concise statement of errors
complained of on appeal per Pa.R.A.P. 1925(b); Appellant timely complied.
Recently, this Court directly addressed the constitutionality of Section
9718 in Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super. 2014), where
the trial court had imposed mandatory minimum sentences for multiple IDSI
convictions, pursuant to Section 9718(a)(1). On appeal, this Court struck
down Section 9718 as facially unconstitutional. Id. (citing Alleyne v.
United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)).
Alleyne applies to all criminal cases pending on direct review.
Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc).
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An unconstitutional statute is ineffective for any purpose
as its unconstitutionality dates from the time of its
enactment and not merely from the date of the decision
holding it so. If no statutory authorization exists for a
particular sentence, that sentence is illegal and subject to
correction. An illegal sentence must be vacated.
Commonwealth v. Muhammed, 992 A.2d 897, 903 (Pa.Super. 2010)
(internal citations and quotation marked omitted).
Instantly, a jury convicted Appellant of, inter alia, one count each of
rape of a child and IDSI with a child. At sentencing, the court applied
Section 9718 to those convictions.2 Given this Court’s binding decision in
Wolfe, however, we must vacate the judgment of sentence in its entirety
and remand for resentencing. See Commonwealth v. Bartrug, 732 A.2d
1287 (Pa.Super. 1999), appeal denied, 561 Pa. 651, 747 A.2d 896 (1999)
(holding sentencing error on one count in multi-count case generally
requires sentences for all counts to be vacated so trial court can restructure
entire sentencing scheme). Accordingly, we affirm Appellant’s convictions
but vacate the judgment of sentence and remand for resentencing without
imposition of any mandatory minimum term(s).
Judgment of sentence vacated; case remanded for resentencing.
Jurisdiction is relinquished.
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2
In its opinion, the trial court incorrectly states it also applied Section 9718
to Appellant’s conviction for aggravated indecent assault of a child, which
carries a ten (10) year mandatory minimum sentence. See 42 Pa.C.S.A.
9718(a)(3). The court, however, imposed a minimum term of only five (5)
years’ incarceration for that offense.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2016
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