J-S06036-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DUANE E. FULGER
Appellant No. 2812 EDA 2016
Appeal from the Judgment of Sentence August 18, 2016
in the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0006387-2014
BEFORE: MOULTON, RANSOM, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 19, 2017
Appellant, Duane E. Fulger, appeals from the judgment of sentence
entered after a jury found him guilty of rape of a child,1 unlawful contact with
a minor,2 and related offenses. Following a remand by this Court, Appellant’s
post-trial counsel (“Counsel”) has filed an amended petition to withdraw from
representation, an amended letter apprising Appellant of his rights in this
appeal, and an Anders/Santiago3 brief. Counsel identifies a single issue in
this appeal, a challenge to the sufficiency of the evidence. We deny counsel’s
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 3121(c).
2 18 Pa.C.S. § 6318(a)(1).
3Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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petition to withdraw, vacate the judgment of sentence, and remand for further
proceedings consistent with this memorandum.
In January 2012, L.W. (“Complainant”) was seven years old.
Complainant’s father (“Father”) left Complainant and her two-year-old sibling
with his mother (“Grandmother”) and went to a holiday party. Grandmother
also left her home to go to a separate holiday party, and Appellant,
Grandmother’s boyfriend, remained with the children. While Father and
Grandmother were at the parties, Appellant molested Complainant.
Complainant reported the abuse to Father and Grandmother that evening or
the following day. However, Grandmother and Father did not alert the
authorities. Complainant later disclosed the abuse to her mother (“Mother”)
in Summer 2013. Mother arranged for Complainant to see a therapist, but
did not alert authorities. Complainant eventually disclosed the abuse to her
therapist. In November 2013, a forensic interviewer with Mission Kids Child
Advocacy Center interviewed Complainant, and Complainant again disclosed
the abuse. An investigation into the allegations commenced, and Appellant
was charged on July 23, 2014.
At trial, Complainant testified that when she was six or seven years old,
Appellant began getting into the tub with her during baths and would make
her touch his penis. N.T., 10/8/15, 115-116, 119. Appellant “would grab her
hand and move it over.” Id. at 118. Appellant would state that “it would
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make [him] and [her] feel better.” Id. at 120. She believed that “maybe it
was something normal.” Id. at 121.
On the night that Father and Grandmother were at the holiday parties,
Appellant got into the tub with her and made her touch his penis. Id. at 117.
After one or two minutes, she pulled her hand away and said, “[N]o, I don’t
want to do this anymore.” Id. at 122. She got out of the tub, put on a towel,
got her pajamas from her room, and then went to Grandmother’s room, where
her sibling was sleeping. Id. at 122-23. When she was on the bed putting
on her pajamas, Appellant came into the room naked, and he jumped on top
of her and pinned down her wrists with his hands. Id. at 125. Complainant
testified that “[h]is private part touched [her] private parts,” that he licked
her face, and that he was “moving up and down against [her] body.” Id. at
126-27. She further testified that Appellant’s penis went “in between” the
“lips” of her vagina, and that it hurt. Id. at 127-28. Appellant apparently did
not say anything during this attack. See id. at 125-28. Complainant
managed to kick Appellant off of her. Id. at 128-29. Appellant left the room
and told her not to tell anyone. Id. at 131.
In addition to Complainant’s trial testimony, Father, Grandmother,
Mother, the forensic interviewer, and the investigating detective testified for
the Commonwealth. Appellant testified on his own behalf. On October 9,
2015, a jury found Appellant guilty of rape of a child, unlawful contact with a
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minor, indecent assault—person less than thirteen years of age,4 corruption
of minors,5 endangering welfare of children,6 and attempted rape of a child.7
Appellant was represented at trial by Edward J. Rideout, III, Esq (“Trial
Counsel”). On April 19, 2016, the trial court granted Attorney Rideout leave
to withdraw and appointed Counsel to represent Appellant.
On August 18, 2016, the trial court sentenced Appellant to serve
consecutive terms of imprisonment of twenty to forty years for rape of a child8
and ten to twenty years for unlawful contact with a minor. The Commonwealth
did not seek mandatory minimum sentences, and Appellant was found not to
be a sexually violent predator.
Appellant did not file post-sentence motions,9 but timely filed a notice
of appeal. This appeal followed.
4 18 Pa.C.S. § 3126(a)(7).
5 18 Pa.C.S. § 6301(a)(1)(ii).
6 18 Pa.C.S. § 4304(a)(1).
7 18 Pa.C.S. §§ 901, 3121(c).
8 See 18 Pa.C.S. § 3121(e)(1) (establishing forty year maximum sentence for
rape of a child).
9Although Appellant sent the trial court various pro se motions, the trial court
properly placed them in the record and forwarded copies to Appellant’s
counsel. See Pa.R.Crim.P. 576(A)(4). We also note that Appellant stated at
sentencing that he intended to challenge the weight of the evidence.
However, because no counseled post-sentence motion was filed, that issue is
waived. See Pa.R.Crim.P. 607; Commonwealth v. Sherwood, 982 A.2d
483, 494 (Pa. 2009). Additionally, Appellant asserted that Trial Counsel and
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Counsel’s Anders/Santiago brief identifies the following issue: “Was
there sufficient evidence presented at trial to allow a jury to find [Appellant]
guilty beyond a reasonable doubt?” Anders/Santiago Brief at 3.
It is well settled that
[t]his Court must first pass upon counsel’s petition to
withdraw before reviewing the merits of the underlying
issues . . . .
Prior to withdrawing as counsel on a direct appeal
under Anders, counsel must file a brief that meets
the requirements established by our Supreme Court
in Santiago. The brief must:
(1) provide a summary of the procedural history
and facts, with citations to the record;
(2) refer to anything in the record that counsel
believes arguably supports the appeal;
(3) set forth counsel’s conclusion that the
appeal is frivolous; and
(4) state counsel’s reasons for concluding that
the appeal is frivolous. Counsel should
articulate the relevant facts of record,
controlling case law, and/or statutes on point
that have led to the conclusion that the appeal
is frivolous.
Counsel also must provide a copy of the Anders brief to his
client. Attending the brief must be a letter that advises the
client of his right to: “(1) retain new counsel to pursue the
appeal; (2) proceed pro se on appeal; or (3) raise any points
that the appellant deems worthy of the court[‘]s attention
in addition to the points raised by counsel in the Anders
brief.”
Counsel were ineffective, but acknowledged that he would have to wait until
his direct appeal was over before raising those claims. See Commonwealth
v. Grant, 813 A.2d 726, 738 (Pa. 2002).
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Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)
(citations omitted).
Instantly, Counsel states in his amended petition that he “made a
thorough review of the record, applicable Pennsylvania Statute [sic], and
applicable Pennsylvania Case Law” and has concluded that “Appellant’s
assertion of insufficient evidence is without merit.” Am. Pet. for Leave
to Withdraw, 3/10/17, at ¶ 10 (emphasis added). Counsel has also filed with
this Court his revised letter, which states that Counsel has supplied Appellant
with copies of his petition to withdraw and a copy of his Anders/Santiago
brief. Counsel’s Letter to Appellant, 3/9/17. Counsel advises Appellant that
he has “the right to retain new counsel or to proceed pro se and may raise
any additional point [he] deem[s] worthy of consideration by writing directly”
to this Court, and that he must respond within sixty days. Id. (italics added).
We are troubled, however, that Counsel’s petition to withdraw contains
the same language that this Court took issue with when first remanding this
matter. Specifically, Paragraph 14 of the amended petition states:
Counsel request[s] that he be permitted to withdraw as
counsel, so that Defendant/Appellant may either be
appointed new counsel or proceed pro se in pursuing the
filing of an Amended Concise Statement of Matters
Complained of on Appeal and subsequent briefing and
litigation of his direct appeal.
Pet. for Leave to Withdraw, 3/10/17, at ¶ 14. As noted previously, this
language misstates Appellant’s right to retain new counsel or proceed pro se
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in this appeal. The continued presence of this language creates unnecessary
ambiguity regarding Appellant’s rights if Counsel’s petition to withdraw were
granted.
Additionally, as noted previously, Counsel has not averred in his
amended petition that he believes this appeal is frivolous based on his
conscientious review of the record and law. He merely asserts that Appellant’s
intended issue is meritless.
However, we need not address whether an additional remand is
necessary to satisfy the withdrawal procedures of Anders and Santiago,
because a different issue requires remand. Specifically, the sentence for
unlawful contact with a child is illegal and warrants vacating the judgment of
sentence.
The proper grading of an offense implicates the legality of sentence, and
this Court may raise a legality of the sentence issue sua sponte. See
Commonwealth v. Aikens, 168 A.3d 137, 140 (Pa. 2017). In so doing, the
standard of review is de novo, and the scope of our review is plenary. Id. at
141.
Unlawful contact with a minor is defined, in relevant part, as follows:
(a) Offense defined -- A person commits an offense if he
is intentionally in contact with a minor, or a law enforcement
officer acting in the performance of his duties who has
assumed the identity of a minor, for the purpose of engaging
in an activity prohibited under any of the following, and
either the person initiating the contact or the person being
contacted is within this Commonwealth:
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(1) Any of the offenses enumerated in Chapter 31
(relating to sexual offenses).
18 Pa.C.S. § 6318(a)(1).10
The grading provision of unlawful contact with a minor states:
(b) Grading -- A violation of subsection (a) is:
(1) an offense of the same grade and degree as the most
serious underlying offense in subsection (a) for which the
defendant contacted the minor; or
(2) a felony of the third degree;
whichever is greater.
18 Pa.C.S. § 6318(b). The “grading of the offense of unlawful contact with a
minor is dependent upon the underlying offense, which is the purpose for
which the accused contacted the minor.” Commonwealth v. Miller, 35 A.3d
1206, 1211 (Pa. 2012).
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States
Supreme Court held that except for prior convictions,
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. . . . “[I]t is
unconstitutional for a legislature to remove from the jury
the assessment of facts that increase the prescribed range
of penalties to which a criminal defendant is exposed. It is
equally clear that such facts must be established by proof
beyond a reasonable doubt.”
Id. at 490 (citations omitted).
10 Counsel’s Anders/Santiago brief does not discuss the sufficiency of the
evidence regarding Appellant’s conviction for unlawful contact with a minor.
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As set forth in Section 6318(b), unlawful contact with a minor is
generally a felony-three, unless the defendant contacted the minor for the
purpose of a felony-one or felony-two offense. See 18 Pa.C.S. § 6318(b);
Miller, 35 A.3d 1206, 1211. The purpose of the contact, therefore, is a fact
that increases the prescribed statutory maximum penalty from a felony-three
to a felony-one or felony-two offense. See 18 Pa.C.S. § 1103(1)-(3)
(prescribing maximum term of imprisonment of twenty years for felony-one
offenses, ten years for felony-two offenses, and seven years for felony-three
offenses). Accordingly, Apprendi applies to the proper grading of unlawful
conduct with a minor and requires that a defendant’s purpose to engage in a
felony-one or felony-two sexual offense be submitted to the jury and found
beyond a reasonable doubt.
Here, the Commonwealth charged Appellant with unlawful contact with
a minor graded as a felony-one, but did not specify that Appellant contacted
Complainant for the purposes of a felony-one offense. More significantly, the
jury instruction regarding unlawful contact with a minor did not submit the
specific question of whether Appellant’s purpose was to engage in rape of a
child, a felony-one sexual offense charged in this case, or any other felony-
one offense. See N.T., 10/9/15, at 175-76 (indicating that jury was charged
to find only whether Appellant’s contact was for the purpose of engaging in an
unlawful act under 18 Pa.C.S. Chapter 31 relating to sexual offenses), 192
(entering guilty verdict for unlawful contact with a minor without special
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interrogatories). All remaining sexual offenses were graded a felony-three or
lower. Upon further inquiry by this Court, the trial court has provided copies
of the jury verdict form, which make clear that the jury did not specifically
find that Appellant committed the unlawful contact of a minor for the purposes
of a felony-one sexual offense.
Therefore, the applicable maximum sentence authorized by the verdict
was seven years for felony-three unlawful contact with a minor.11 See 18
11 We note that Apprendi errors are subject to plain error or harmless error
analyses. See United States v. Cotton, 535 U.S. 625, 633 (2002) (holding
no relief due on an Apprendi violation where the evidence that the
defendants’ conspiracy involved at least fifty grams of cocaine base was
“‘overwhelming’ and ‘essentially’ uncontroverted’”); Commonwealth v.
Belak, 825 A.2d 1252, 1256 n.10 (Pa. 2003) (concluding that failure to submit
question to jury regarding whether victims were home during burglaries, when
the defendant previously stipulated to that fact precluded relief based on
Apprendi).
In the instant case, Complainant’s testimony that Appellant came into the
bedroom naked, jumped on top of her, pinned her down with his body, and
held down her wrists was arguably sufficient to prove contact for the purpose
of engaging in rape of a child. See Commonwealth v. Velez, 51 A.3d 260,
267 (Pa. Super. 2012) (noting that evidence of contact must exceed the
evidence necessary to sustain the conviction for a sexual offense and that jury
could have inferred that the defendant directed the victim to unclothe or place
her knees in the air). However, Appellant not only denied Complainant’s
testimony that any assaults occurred, but also raised inconsistencies based on
Father’s and Grandmother’s statements regarding Complainant’s initial
reports of the rape. During closing arguments, the Commonwealth did not
expressly assert that the jury should find Appellant guilty of unlawful contact
with a minor for the purpose of rape of a child. Rather, it noted that Appellant
would commit the offense based on any direct contact for the purpose of
engaging in a sexual offense and illustrated that Appellant could be found
guilty if he told Complainant to touch his penis. Thus, the Commonwealth
appeared to argue felony-three unlawful contact with a minor based on the
felony-three charge of indecent assault. Under these circumstances, the
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Pa.C.S. § 1103(2); Apprendi, 530 U.S. at 490. Consequently, Appellant’s
sentence of ten to twenty years’ imprisonment for that offense must be
vacated. Because the trial court directed the sentence for the unlawful contact
with a minor to run consecutively to the sentence for rape of a child, the
overall sentencing scheme has been disturbed. Accordingly, we must vacate
the judgment of sentence and remand this matter to the trial court for
resentencing. See Commonwealth v. Tanner, 61 A.3d 1043, 1048 (Pa.
Super. 2013).
Judgment of sentence vacated. Case remanded for resentencing.
Counsel’s petition to withdraw denied. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2017
evidence was not so overwhelming or essentially uncontradicted that the
Apprendi error was harmless.
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Com. v. Fulger, D.
Combined Opinion