J-S48037-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMES ANTHONY ELIA :
:
Appellant : No. 2509 EDA 2017
Appeal from the Judgment of Sentence March 20, 2017
in the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-XX-XXXXXXX-2010
BEFORE: DUBOW, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED OCTOBER 02, 2018
Appellant, James Anthony Elia, appeals from the judgment of sentence
imposed after his bench trial conviction of involuntary deviate sexual
intercourse involving a child less than sixteen years of age, and numerous
related sex crimes. Specifically, he challenges the new sentence imposed after
his original sentence was vacated. Appellant argues that his resentencing
violated the constitutional protection against double jeopardy. He also
maintains that his sentence was harsh and excessive because the sentencing
guidelines for statutory aggravated indecent assault and involuntary deviate
sexual intercourse are unreasonable and have no logical foundation. We
affirm.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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This appeal has a long and convoluted procedural history but the
underlying facts of the case are not in substantial dispute. We summarize
only those which are most relevant to the issues on appeal.
Appellant met the Victim through family connections. At the time, he
was dating the Victim’s aunt. When the relationship with the Victim began,
Appellant was twenty-five and she was fourteen. He knew she was fourteen.
(See Trial Court Opinion, 11/21/17, at 2-3). In Pennsylvania, the age of
consent is sixteen, while the legality of sex with a thirteen, fourteen, or fifteen
year old depends on the age of the other party. See 18 Pa.C.S.A. § 3122.1
(statutory sexual assault).
Soon after meeting, Appellant picked the Victim up after school and
drove her in his mother’s minivan to a ballpark where they parked the van
and had sexual relations. There followed multiple, separate episodes of sexual
activity, including vaginal intercourse, oral sex, manual stimulation, digital
penetration, and so forth. The Victim’s mother became suspicious about the
relationship and, with the help of police, obtained inculpatory admissions from
Appellant in a telephone conversation. A physician confirmed that the Victim
had contracted a sexually transmitted disease.
On February 14, 2011, the Commonwealth filed an information accusing
Appellant of five counts of involuntary deviate sexual intercourse involving a
child less than sixteen years of age, 18 Pa.C.S.A. § 3123(a)(7); five counts of
statutory sexual assault, 18 Pa.C.S.A. § 3122.1; five counts of aggravated
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indecent assault involving a person less than sixteen years of age, 18
Pa.C.S.A. § 3125(a)(8); one count of corruption of minors, 18 Pa.C.S.A. §
6301(a)(1); five counts of indecent assault of a person less than sixteen years
of age, 18 Pa.C.S.A. § 3126(a)(8); and one count of unlawful contact or
communication with a minor, 18 Pa.C.S.A. § 6318(a)(1).
On June 27, 2011, Appellant pleaded guilty to a negotiated single count
of involuntary deviate sexual intercourse involving a child less than 16 years
of age and one count of statutory sexual assault. As part of the plea
agreement, the Commonwealth agreed to withdraw the remaining charges
and to forgo the imposition of a mandatory ten-year prison sentence under 42
Pa.C.S.A. § 9718(a). Sentencing was deferred pending an evaluation of
Appellant by the Sexual Offenders Assessment Board.
However, on September 26, 2011, Appellant filed pro se motions to
withdraw the guilty plea and for a change of appointed counsel. At a hearing
on October 13, 2011, the court granted withdrawal, concluding that
Appellant’s motion was knowing, voluntary, and intelligent.
On November 30, 2011, then-defense counsel filed a motion for
continuance to file a motion to withdraw from further representation, citing
Appellant’s assertion of ineffective assistance as a conflict of interest. After a
hearing, the court granted counsel’s oral motion to withdraw in an order dated
and filed December 6, 2011. (See Order, 12/06/11). The court appointed
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Francis P. Walsh, Esq., to represent Appellant.1 (See Order, dated 12/07/11,
and filed 12/08/11).
On January 17, 2012, prior to the start of Appellant’s scheduled trial,
Attorney Walsh made an oral motion to withdraw the prior motion to
withdraw the guilty plea. Counsel argued that the plea should not have been
withdrawn because Appellant had not expressly asserted his innocence. He
also argued that the hearing on the motion to withdraw the guilty plea should
not have occurred because Appellant had asserted that plea counsel had been
ineffective. The court denied the oral motion, and the matter proceeded to a
bench trial.
At the conclusion of the trial, the court found Appellant guilty of IDSI,
statutory sexual assault, aggravated indecent assault, corruption of minors,
indecent assault, and unlawful contact with a minor. On March 19, 2012, the
Commonwealth filed a notice of its renewed intent to pursue the ten-year
mandatory minimum sentence applicable to Appellant’s IDSI conviction,
pursuant to 42 Pa.C.S.A. § 9718(a).2 (See Commonwealth’s Notice of Intent
to Seek Mandatory Ten Year Sentences, 3/19/12; see also Commonwealth
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1 Attorney Walsh continues to represent Appellant in this appeal.
2 At the time, in pertinent part, section 9718 provided that a person convicted
of 18 Pa.C.S.A. § 3123 (involuntary deviate sexual intercourse) was subject
to a mandatory term of ten years’ imprisonment. See 42 Pa.C.S.A.
§ 9718(a)(1).
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v. Elia, 83 A.3d 254, 260 (Pa. Super. 2013), appeal denied, 94 A.3d 1007
(Pa. 2014)).
On April 25, 2012, at the sentencing hearing, defense counsel asserted
that the application of a mandatory minimum sentence pursuant to section
9718(a)(1) constituted cruel and unusual punishment. The court disagreed
and sentenced Appellant to a term of not less than ten nor more than twenty
years of incarceration. (See N.T. Motions/Gagnon Hearing/Sentencing,
4/25/12, at 54).3
Appellant timely filed a post-sentence motion. He asserted (1) the court
erred in allowing the withdrawal of the guilty plea because he had not asserted
his innocence, (2) plea counsel had been ineffective, (3) the evidence at trial
did not prove that he had committed involuntary deviate sexual intercourse in
Montgomery County and (4) the mandatory minimum sentence for involuntary
deviate sexual intercourse is unconstitutional. The court issued an order dated
May 17, 2012, denying the post-sentence motion.
On May 25, 2012, Appellant timely appealed from the judgment of
sentence and subsequently filed a concise statement of errors pursuant to
Pa.R.A.P. 1925(b). (See Trial Court Opinion, 7/1/12, at 1-3). This Court
affirmed in an opinion filed December 24, 2013. (See Commonwealth v.
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3 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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Elia, 83 A.3d 254, 260 (Pa. Super. 2013), appeal denied, 94 A.3d 1007 (Pa.
2014)).
On August 15, 2014, Appellant filed a timely petition pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Counsel
subsequently filed an amended petition, asserting that Appellant’s sentence
was illegal under Alleyne v. United States, 570 U.S. 99 (2013)4 and
Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014), affirmed, 140
A.3d 651, 663 (Pa. 2016).5 The PCRA court agreed, and vacated sentence.
This Court affirmed. (See Commonwealth v. Elia, No. 3403 EDA 2015, 2016
WL 2908553, at *1 (Pa. Super. filed May 18, 2016) (unpublished
memorandum), appeal denied, 164 A.3d 454 (Pa. 2016)).
On March 20, 2017, Appellant was re-sentenced, without any mandatory
minimum, to an aggregate term of not less than nine-and-one-half nor more
than twenty years of incarceration at a state correctional institution, six
months less than his original aggregate sentence of ten to twenty years’
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4 Alleyne held that that any fact that, by law, increases the penalty for a
crime is an “element” that must be submitted to the jury and found beyond a
reasonable doubt, including mandatory minimum sentences. See Alleyne,
supra at 103.
5 Wolfe held that section 9718 (mandatory sentences for, inter alia, sex
crimes when victim is less than sixteen years of age) is unconstitutional in
light of Alleyne; furthermore, section 9718 is irremediably unconstitutional
on its face, non-severable, and void. See Wolfe, supra at 663.
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imprisonment. This timely appeal followed the denial of Appellant’s post-
sentence motion.6
Appellant presents two questions for our review:
I. Did the court err in re-sentencing the [A]ppellant on the
charges of statutory aggravated indecent assault and statutory
sexual assault where the court at the original sentencing hearing
held that those charges merged with involuntary deviate sexual
intercourse and the Commonwealth failed to appeal this decision;
thus was the sentence final and the re-sentencing on these
merged charges violate the double jeopardy provisions of the 5th
and 14th [A]mendment to the United States Constitution and
Article 1 Section 10 of the Pennsylvania constitution?
II. Did the court impose a harsh and excessive sentence in
this case, because the guidelines for statutory aggravated
indecent assault and statutory involuntary deviate sexual
intercourse are unreasonable and have no logical foundation?
(Appellant’s Brief, at 4) (unnecessary capitalization omitted).7
In his first claim, Appellant argues that he cannot be resentenced
because at the first sentencing the court asserted that the offense of statutory
sexual assault and aggravated indecent assault merged with involuntary
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6Appellant filed a court-ordered statement of errors complained of on appeal.
The trial court filed an opinion on November 21, 20017. See Pa.R.A.P. 1925.
7 We note that counsel for Appellant has failed to comply with Pennsylvania
Rule of Appellate Procedure 2116, which mandates, in pertinent part, that:
“The statement of the questions involved must state concisely the issues to
be resolved, expressed in the terms and circumstances of the case but without
unnecessary detail.” Pa.R.A.P. 2116(a) (emphasis added). Counsel also omits
a properly ordered formal statement of the standard of review and scope of
review for each of the issues raised. See Pa.R.A.P. 2111(a)(3).
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deviate sexual intercourse for purposes of sentencing. (See Appellant’s Brief,
at 4-12).8 Appellant maintains that resentencing him now would constitute
double jeopardy in violation of the United States and Pennsylvania
Constitutions.9 (See id. at 9). We disagree.
An issue involving a constitutional right is a question of law for which
our standard of review is de novo, and our scope of review is plenary. See
Commonwealth v. Baldwin, 58 A.3d 754, 762 (Pa. 2012).
Appellant’s chief, if not only, argument for unconstitutionality is that re-
sentencing on the charges of statutory sexual assault and aggravated indecent
assault violated the prohibition against double jeopardy because the court said
at sentencing that the charges merged, and the Commonwealth did not
challenge or appeal from this statement, which the trial court now disclaims.
(See Appellant’s Brief, at 9-12).
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8 It is noteworthy that the sentencing court now considers that its initial
determination of merger was legally incorrect, and in any event was only
adopted to achieve a particular sentencing scheme. (See Trial Court Opinion,
11/21/17, at 7-8).
9 In pertinent part, the double jeopardy clause of the Fifth Amendment
provides that: “No person shall . . . be subject for the same offence to be
twice put in jeopardy of life or limb[.]” U.S. Const. amend. V. The Fourteenth
Amendment provides, inter alia, the right to due process. See U.S. Const.
amend. XIV.
Section 10 of the First Article of the Pennsylvania Constitution provides, in
pertinent part: “No person shall, for the same offense, be twice put in
jeopardy of life or limb[.]” Pa. Const. art. I, § 10.
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First, other than caselaw cited for general principles not at issue in this
appeal, Appellant fails to develop an argument supported by any pertinent
authority that the sentences do in fact merge, or that the Commonwealth had
some otherwise unspecified duty to appeal the trial court’s statement, let
alone to establish a violation of the constitutional prohibition.
Appellant cites United States v. DiFrancesco, 449 U.S. 117, 132
(1980), but candidly concedes that the United States Supreme Court, in
applying a provision of the Organized Crime Control Act of 1970, decided that
the Government’s appeal of a defendant’s sentence pursuant to that statute
did not offend double jeopardy principles. See id. at 132; (see also
Appellant’s Brief, at 10-11).10
Accordingly, Appellant’s constitutional claim is waived. See Pa.R.A.P.
2119(a), (b); see also Commc'ns Network Int'l, Ltd. v. Mullineaux, 187
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10 Additionally, Appellant cites Commonwealth v. Nickens, 923 A.2d 469
(Pa. Super. 2007). (See Appellant’s Brief, at 11). Nickens is a criminal
procedure case, which chiefly addresses Pa.R.Crim.P. 721(B)(1)
(Commonwealth motion for modification of sentence shall be filed no later
than 10 days after imposition of sentence). See id. at 472. It has nothing to
do with constitutional claims, or the merger of offenses. Appellant also cites
Commonwealth v. Williams, 920 A.2d 887 (Pa. Super. 2007). (See
Appellant’s Brief, at 11). Williams held as a matter of law that separate
sentences for weapons offenses did not merge. See Williams, supra at 891.
Appellant cites a third case, Commonwealth v. Jones, 912 A.2d 815, 816
(Pa. 2006). (See Appellant’s Brief, at 12). Jones, a plurality decision, has
since been abrogated. See Commonwealth v. Baldwin, 985 A.2d 830,
834 (Pa. 2009); see also Commonwealth v. Raven, 97 A.3d 1244, 1249–
50 (Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014) (recognizing
abrogation of Jones by Baldwin).
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A.3d 951, 965 (Pa. Super. 2018) (claim waived when appellant offers no
controlling authority in support).
Moreover, it would not merit relief. Under Pennsylvania law, double
jeopardy does not preclude resentencing, even if the sentencing scheme is
revised or, unlike here, enhanced. See Commonwealth v. Bartrug, 732
A.2d 1287, 1289 (Pa. Super. 1999), appeal denied, 747 A.2d 896 (Pa. 1999)
(citing Pennsylvania v. Goldhammer, 474 U.S. 28 (1985)); see also
Commonwealth v. Wilson, 934 A.2d 1191, 1196 (Pa. 2007) (“We agree
with the Commonwealth that Appellee had no legitimate expectation of finality
in his sentence after he has filed an appeal therefrom.”); Commonwealth v.
Goldhammer, 517 A.2d 1280, 1283 (Pa. 1986), cert. denied, 480 U.S. 950
(1987) (“We hold therefore, that where a defendant appeals a judgment of
sentence, he accepts the risk that the Commonwealth may seek a remand for
resentencing thereon if the disposition in the appellate court upsets the
original sentencing scheme of the trial court.”).
When the original sentence was vacated, the sentence was
rendered a legal nullity and there is no controlling authority
precluding the Commonwealth from presenting sentence
enhancement evidence on remand. This is true regardless of the
fact that the punishment was imposed upon a single count of
delivery of a controlled substance and arises instead from the
procedural posture of the case at bar, i.e., a vacation of sentence
and a remand for a new sentencing hearing.
Wilson, supra at 1196 (emphasis added).
Additionally,
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Whether Appellant’s convictions merge for sentencing
is a question implicating the legality of Appellant’s sentence.
Consequently, our standard of review is de novo and the
scope of our review is plenary.
[ ] Baldwin, [supra at] 833 [ ] (case citations and internal
quotation marks omitted).
Section 9765 of the Judicial Code provides that:
No crimes shall merge for sentencing purposes unless the
crimes arise from a single criminal act and all of the statutory
elements of one offense are included in the statutory
elements of the other offense. Where crimes merge for
sentencing purposes, the court may sentence the defendant only
on the higher graded offense.
42 Pa.C.S.A. § 9765.
Our Supreme Court in Baldwin concluded that:
A plain language interpretation of Section 9765 reveals the
General Assembly’s intent to preclude the courts of this
Commonwealth from merging sentences for two offenses that are
based on a single criminal act unless all of the statutory
elements of one of the offenses are included in the statutory
elements of the other.
Baldwin, supra at 837 (footnote omitted).
Commonwealth v. Calhoun, 52 A.3d 281, 284 (Pa. Super. 2012), appeal
denied, 67 A.3d 793 (Pa. 2013) (emphases added; footnote omitted).
Here, furthermore, it is important to recognize that Appellant’s crimes
are not based on a single act. (See Trial Ct. Op., at 7 n.15). To the contrary,
they are based on multiple acts, which Appellant fails to differentiate.
Separate crimes of acts committed on separate occasions do not implicate
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double jeopardy. See Commonwealth v. Adams, 442 A.2d 277, 280 (Pa.
Super. 1982). Appellant’s claim does not merit relief.
Moreover, this Court has held that when an illegal sentence has been
imposed, the sentence must be corrected. Resentencing to correct an illegal
sentence does not implicate double jeopardy. See Commonwealth v.
Kratzer, 660 A.2d 102, 104-05 (Pa. Super. 1995), appeal denied, 670 A.2d
643 (Pa. 1996) (no double jeopardy violation implicated where, as here,
aggregate sentence on resentencing did not exceed original aggregate
sentence).
It is well settled that if a trial court errs in its sentence on one count in
a multi-count case, then all sentences for all counts will be vacated so that
the court can restructure its entire sentencing scheme. See
Commonwealth v. Vanderlin, 580 A.2d 820, 831 (Pa. Super. 1990).
This has been held true even where Appellant specifically limits his
appeal to one particular illegal sentence based upon one bill of information
and does not appeal sentences based upon other bills of information, where
those sentences are part of a common sentencing scheme. See
Commonwealth v. Sutton, 583 A.2d 500, 502 (Pa. Super. 1990), appeal
denied, 596 A.2d 156 (Pa. 1991). Appellant’s first claim is waived and does
not merit relief.
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Appellant’s second claim challenges the discretionary aspects of his
sentence. (See Appellant’s Brief, at 13-17). We conclude that Appellant has
failed to present a substantial question.
Chiefly citing Commonwealth v. Miller, 835 A.2d 377 (Pa. Super.
2003), Appellant correctly observes that:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, whose judgment will not be disturbed absent
an abuse of discretion. Where an appellant challenges the
discretionary aspects of a sentence, there is no automatic right to
appeal and an appellant’s appeal should be considered a petition
for allowance of appeal. Before a challenge to a judgment of
sentence will be heard on the merits, an appellant first must set
forth in his or her brief a concise statement of the reasons relied
upon for allowance of appeal with respect to the discretionary
aspects of his or her sentence. [S]ee . . . Pa.R.A.P. 2119(f). . . .
In addition, an appellant must show that there is a
substantial question as to whether the imposed sentence was
inappropriate under the Sentencing Code. See . . . 42 Pa.C.S.A.
§ 9781(b). Whether an issue raises a substantial question is a
determination that must be made on a case-by-case basis;
however, in order to establish a substantial question, the appellant
generally must establish that the sentencing court’s actions either
were inconsistent with a specific provision of the Sentencing Code
or contrary to the fundamental norms which underlie the
sentencing process.
Id. at 380 (case citations omitted).
Here, in his Rule 2119(f) statement, Appellant contends that the
Sentencing Guidelines are “illogical.” (Appellant’s Brief, at 13). This claim
fails to raise a substantial question that the sentence imposed is inconsistent
with either a specific provision of the Sentencing Code or a fundamental norm
of the sentencing process.
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Instead, through selected comparisons of guideline sentences, Appellant
argues, in effect, that the Sentencing Guidelines provide more severe
punishment for certain sex offenses committed with a minor under the age of
sixteen than for comparable acts with older teenagers or adults. He posits
that the IDSI statute makes no distinction between “forcible sex and statutory
sex.” (Id.). Therefore, he concludes, the sentence imposed “has no logical
foundation.” (Id.). We disagree.
In his previous direct appeal, Appellant made a similar argument that
disparate sentences made his sentence unconstitutional. However, our
Supreme Court has rejected this species of claim, employing a rational basis
test: “[U]nder a rational basis analysis, the government need not have
articulated the purpose or rationale supporting its action; it is enough that
some rationale may conceivably . . . have been the purpose and policy of the
relevant government decision[-]maker.” Commonwealth v. Albert, 758
A.2d 1149, 1152 (Pa. 2000) (citations and internal quotation marks omitted).
Here, Appellant’s assertion overlooks the obvious distinction that our
Legislature has elected to protect minor children by establishing enhanced
punishment for those who commit sex offenses against them, irrespective of
whether the child consented. Our Supreme Court has explained:
We agree with the Commonwealth that the subject
legislation serves a legitimate state interest, i.e., to protect minors
younger than 16 years of age from older teenage and adult sexual
aggressors. Such an interest recognizes that older, more mature
individuals are in a position that would allow them to take
advantage of the immaturity and poor judgment of very young
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minors. Moreover, we believe that the subject legislation is
reasonably related to accomplishing such interest. The legislation
is specifically tailored to prevent older teens and adults from
preying upon very young minor victims, while recognizing that
persons closer in age may be involved in lawful social and sexual
relationships. Thus, the legislation meets the rational basis test.
Id. at 1154.
Accordingly, Appellant’s challenge to the discretionary aspects of his
sentence fails in its fundamental premise. The variations in sentencing noted
by Appellant do have an obvious logical foundation, the protection of minor
children. Furthermore, our predecessor panel observed:
First, the fact that discrepancies exist within the Crimes
Code and the Code’s sentencing provisions does not render a
particular mandatory minimum sentence unconstitutional. The
fact that the General Assembly has not enacted a mandatory
minimum sentence for one particular crime, one which Elia feels
is more severe, does not, ipso facto, mean that the mandatory
minimum sentence for IDSI is constitutionally infirm. Second, the
absence of force or coercion does not render the mandatory
minimum statute unconstitutionally disproportionate to Elia’s
conduct. The Commonwealth has a legitimate state interest in
protecting minors younger than sixteen years old from adult
sexual aggressors. Commonwealth v. Albert, [supra at] 1154
[ ]. To that end, the General Assembly has chosen to punish those
offenders uniformly with a mandatory minimum sentence,
regardless of whether the victim consented or was coerced
into the sexual contact. The absence of consent in one
particular case does not vitiate the General Assembly’s reasonable
punitive goal. Moreover, the absence of consent or coercion
does not, by itself, give rise to a reasonable inference that
the sentence was grossly disproportionate.
Elia engaged in oral sex with a fourteen-year-old girl when
he was twenty-five years-old. Whether forced or not, this was the
type of conduct that the General Assembly chose to criminalize
and sought to deter and punish through the enactment of 42
Pa.C.S. § 9718(a). The punishment is not grossly
disproportionate to that crime merely because Elia did not force
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the victim to engage in oral sex. It is the oral sex itself, however
it occurs, that the General Assembly intended to punish. Such a
determination is evinced by the fact that lack of consent is not an
element of, and has no bearing upon, IDSI with a child under the
age of sixteen. See 18 Pa.C.S. §§ 3213(a)(7), 3101.
* * *
The crime committed remains severe. A lengthy sentence is a
constitutional means to punish and deter offenders. The increase
in the length of the sentence does not, by itself, induce us to
conclude that the sentence raises meaningful constitutional
concerns. . . . Elia has failed to establish a reasonable inference
that the statute is grossly disproportionate[.]
(Elia, supra at 83 A.3d at 269–70 (emphases added)).
Appellant has failed to present a substantial question about the
discretionary aspects of his sentence.11
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/18
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11Accordingly, it is unnecessary for us to review Appellant’s argument that his
sentence is excessive, and we decline to do so.
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