J-S33012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
IRA L. FISHER, III,
Appellant No. 1747 MDA 2016
Appeal from the Judgment of Sentence Entered October 28, 2015
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0001672-2014
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 07, 2017
Appellant, Ira L. Fisher, III, appeals nunc pro tunc from the judgment
of sentence imposed on October 28, 2015, after a jury convicted him of
aggravated indecent assault, statutory sexual assault, indecent assault, and
corruption of minors. Appellant solely challenges the legality of two
mandatory minimum sentences imposed in his case pursuant to 42 Pa.C.S. §
9718.2. After careful review, we affirm.
A detailed recitation of the facts of Appellant’s case is not necessary to
our disposition of his appeal. We only note that Appellant was convicted of
the above-stated charges based on “an anal rape that he perpetrated upon a
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* Retired Senior Judge assigned to the Superior Court.
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fourteen-year-old girl who was in his care.” Trial Court Opinion (TCO),
12/23/16, at 2. As the trial court explains,
[t]wo of [Appellant’s] offenses – aggravated indecent assault
and statutory sexual assault – are listed as Tier III sexual
offenses under 42 Pa.C.S.[] § 9799.14. They are also included
within the ambit of 42 Pa.C.S.[] § 9718.2, which governs
mandatory sentences applicable to offenders who had previously
been convicted of a Tier III sexual offense. See 42 Pa.C.S.[] §
9718.2([a])(1).[1]
On [October 28,] 2015, [Appellant] appeared before [the
trial] [c]ourt for sentencing. Given the mandatory sentence
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1 Section 9718.2(a)(1) states:
(a) Mandatory sentence.--
(1) Any person who is convicted in any court of this
Commonwealth of an offense set forth in section 9799.14
(relating to sexual offenses and tier system) shall, if at the
time of the commission of the current offense the person
had previously been convicted of an offense set forth in
section 9799.14 or an equivalent crime under the laws of
this Commonwealth in effect at the time of the commission
of that offense or an equivalent crime in another
jurisdiction, be sentenced to a minimum sentence of at
least 25 years of total confinement, notwithstanding any
other provision of this title or other statute to the contrary.
Upon such conviction, the court shall give the person oral
and written notice of the penalties under paragraph (2) for
a third conviction. Failure to provide such notice shall not
render the offender ineligible to be sentenced under
paragraph (2).
42 Pa.C.S. § 9718.2(a)(1). Here, Appellant had been previously convicted,
in 1996, of aggravated indecent assault and statutory sexual assault, both of
which are Tier III offenses under 42 Pa.C.S. § 9799.14. See Sentencing
Order, 11/2/15, at 1; 42 Pa.C.S. § 9799.14(d)(3), (d)(7).
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required by 42 Pa.C.S.[] § 9718.2, [the court] imposed a
sentence of 25 to 50 years[’ incarceration] on Counts I and [I]II.
In addition, [the court] also imposed sentences on Counts IV and
V of 16 months[’] to 5 years[’ incarceration].[2] No appeal was
immediately filed by [Appellant].
TCO at 2.
Appellant subsequently filed a petition under the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the restoration of his direct
appeal rights. The court granted that petition, and Appellant filed the
present notice of appeal nunc pro tunc. He timely complied with the trial
court’s order to file a Pa.R.A.P. 1925(b) statement. Herein, Appellant raises
the following single issue for our review:
A. Did the trial court err in sentencing Appellant when they
sentenced him to a mandatory minimum sentence of twenty-
five (25) to fifty (50) years for counts I and III of the criminal
information when they were not legally permitted to do so?
Appellant’s Brief at 6.
Appellant contends that his mandatory minimum sentences, imposed
pursuant to 42 Pa.C.S. § 9718.2, are illegal under Alleyne v. United
States, 133 S.Ct. 2151, 2163 (2013) (holding that “facts that increase
mandatory minimum sentences must be submitted to the jury” and found
beyond a reasonable doubt). We disagree. The application of mandatory
sentences under section 9718.2 was triggered by Appellant's prior
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2 Appellant’s sentences at counts I and III were imposed to run concurrently,
while his sentences at counts IV and V were imposed to run consecutively.
Thus, his aggregate sentence is 27 years’ and 8 months’ to 60 years’
incarceration.
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convictions for offenses set forth in section 9799.14. See 42 Pa.C.S. §
9718.2(a)(1).
Prior convictions are the remaining exception to Apprendi v.
New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000), and Alleyne..., insofar as a factfinder is not required to
determine disputed convictions beyond a reasonable doubt to
comport with the Sixth Amendment jury trial right. See
Almendarez–Torres v. United States, 523 U.S. 224, 118
S.Ct. 1219, 140 L.Ed.2d 350 (1998).
Commonwealth v. Hale, 85 A.3d 570, 585 n.13 (Pa. Super. 2014). Thus,
because Appellant’s mandatory minimum sentences under section 9718.2
are premised on his prior convictions, Alleyne does not render those
sentences unconstitutional. Accordingly, we affirm Appellant’s judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2017
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