J-S63005-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID L. BAYNES :
:
Appellant : No. 1437 WDA 2017
Appeal from the Judgment of Sentence June 8, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000244-2014,
CP-02-CR-0002773-2014
BEFORE: OTT, J., MURRAY, J., and STEVENS, P.J.E.
MEMORANDUM BY OTT, J.: FILED JANUARY 25, 2019
David L. Baynes appeals from the judgment of sentence imposed June
8, 2017, in the Allegheny County Court of Common Pleas. The trial court re-
sentenced Baynes to an aggregate term of 23½ to 47 years’ imprisonment
following his convictions of rape, involuntary deviate sexual intercourse
(“IDSI”),1 and related charges at Docket No. 244-2014, and simple assault2
at Docket No. 2773-2014. The court also determined Baynes met the criteria
for classification as a sexually violent predator (“SVP”) pursuant to
____________________________________________
Former Justice specially assigned to the Superior Court.
1 See 18 Pa.C.S. §§ 3121(a)(1) and 3123(a)(1).
2 See 18 Pa.C.S. § 2701(a)(1).
J-S63005-18
Pennsylvania’s Sexual Offender Registration and Notification Act (“SORNA”). 3
On appeal, Baynes challenges both the legality and discretionary aspects of
his sentence. For the reasons below, we are, once again, constrained to
vacate his sentence, and remand for resentencing.
The facts underlying Baynes’ convictions are summarized in a prior
memorandum decision of this Court, and we need not recite them herein. See
Commonwealth v. Baynes, 156 A.3d 332 [378 WDA 2015] (Pa. Super.
2016) (unpublished memorandum at *1-*2). In summary, at Docket No. 244-
2014, Baynes was charged with rape, IDSI, sexual assault, indecent assault,
indecent exposure, and simple assault,4 for his attack on a woman, S.H., who
was staying with him after she was ousted from a drug recovery house. After
those charges were filed, another woman, M.S., came forward claiming
Baynes had sexually assaulted her as well. At Docket No. 2773-2014, he was
charged with similar crimes with respect to his assault of M.S. The cases were
consolidated for a joint trial. On November 5, 2014, a jury found Baynes
guilty of all charges at Docket No. 244-2014. At Docket No. 2773-2014, the
jury acquitted Baynes of the sexual offenses, but convicted him of simple
assault. The trial court directed the Sexual Offender Assessment Board
(“SOAB”) to perform an assessment of Baynes to determine if he met the
____________________________________________
3 See 42 Pa.C.S. §§ 9799.10-9799.41.
4See 18 Pa.C.S. §§ 3121(a)(1), 3123(a)(1), 3124.1, 3126(a)(7), 3127, and
2701(a)(1), respectively.
-2-
J-S63005-18
criteria for classification as an SVP. See 42 Pa.C.S. § 9799.24. The next day,
the Commonwealth notified Baynes of its intent to invoke the mandatory
minimum sentencing provision of 42 Pa.C.S. § 9718.2(a), calling for a
minimum 25 years’ imprisonment based on a second-strike, since he had
previously been convicted of a sexual offense.
On February 16, 2016, the trial court conducted a combined SVP and
sentencing hearing. Based on the SOAB’s findings, the court determined
Baynes met the criteria for classification as an SVP, and sentenced him to an
aggregate term of 25 to 50 years’ imprisonment. Specifically, the court
imposed the following sentences at Docket No. 244-2014: (1) a term of 10
to 20 years for rape, (2) a consecutive term of 10 to 20 years for IDSI, and
(3) a consecutive term of five to 10 years for sexual assault. However, the
court imposed no further punishment on the remaining convictions at Docket
No. 244-2014, or on the simple assault conviction at Docket No. 2773-2014.
Baynes filed a timely direct appeal, arguing the trial court erred in failing
to conduct a full colloquy when he chose not to attend the jury selection and
first day of his trial. See Baynes, supra. A panel of this Court rejected that
claim. Nevertheless, the panel found the sentence imposed was illegal, and
vacated it sua sponte. Specifically, the panel concluded the trial court: (1)
erred when it imposed a sentence for sexual assault, as that charge should
have merged with either rape or IDSI for sentencing purposes; and (2) failed
to impose the second-strike mandatory minimum sentencing provision of
Section 9718.2(a). See id., 156 A.3d 332 (unpublished memorandum at *5-
-3-
J-S63005-18
*6). The panel remanded the case with the following instruction: “When
resentencing [Baynes], the court must properly apply both merger law and
the second-strike provision of Section 9718.2(a)(1), which is not satisfied by
the aggregate sentence we have just vacated.” Id. (unpublished
memorandum at *6). Baynes’ subsequent petition for allowance of appeal in
the Pennsylvania Supreme Court was denied. See Commonwealth v.
Baynes, 165 A.3d 875 (Pa. 2017).
On June 8, 2017, the trial court resentenced Baynes to an aggregate
term of 23½ to 47 years’ imprisonment, comprised of the following
consecutive sentences: (1) at Docket No. 244-2014, 10 to 20 years for rape,
10 to 20 years for IDSI, and two and one-half to five years for indecent
exposure, and (2) at Docket No. 2773-2014, one to two years for simple
assault. Baynes filed a post-sentence motion, challenging the discretionary
aspects of his new sentence. The trial court denied the motion on July 31,
2017, and this timely appeal followed.5, 6
____________________________________________
5 We note that Baynes’ notice of appeal lists both docket numbers. See Notice
of Appeal, 8/30/2017. In June of 2018, the Pennsylvania Supreme Court in
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), held that “when a
single order resolves issues arising on more than one lower court docket,
separate notices of appeal must be filed. The failure to do so will result in
quashal of the appeal.” Id. at 977 (footnote omitted). Nevertheless, the
Walker Court specifically announced its decision would be applied
prospectively only. See id. Therefore, because the notice of appeal in the
present case was filed before Walker, we need not quash this appeal.
6 On August 31, 2017, the trial court ordered Baynes to file a concise
statement of errors complained of on appeal by October 16, 2017. See
-4-
J-S63005-18
Baynes raises five issues on appeal, all challenging either his sentence
or his registration requirements under SORNA. The Commonwealth concedes
Baynes is entitled to resentencing on two bases. First, the trial court imposed
an illegal sentence on his conviction of indecent exposure, which was graded
as a first-degree misdemeanor when it should have been graded as a second-
degree misdemeanor.7 See Baynes’ Brief at 24-25; Commonwealth’s Brief at
12-14. Indecent exposure is graded as a first-degree misdemeanor only if the
defendant “knows or should have known that any of the persons present
[were] less than 16 years of age[.]” 18 Pa.C.S. § 3127(b). Here, the
Commonwealth admits there was no evidence presented that any persons
under the age of 16 were present when Baynes committed the crime. See
Commonwealth’s Brief at 13. Because the statutory maximum sentence
permissible for a second-degree misdemeanor is two years, we agree the two
and one-half to five year term imposed on Baynes’ indecent exposure
conviction was illegal.
____________________________________________
Pa.R.A.P. 1925(b). Baynes complied with the court’s directive and filed a
concise statement on October 13, 2017.
7 Although this claim was not presented to the trial court, it raises a challenge
to the legality of Baynes’ sentence. See Commonwealth v. Pantalion, 957
A.2d 1267, 1271 (Pa. Super. 2008). Accordingly, it may be raised for the first
time on appeal, or by an appellate court sua sponte. See Commonwealth
v. Batts, 163 A.3d 410, 434 (Pa. 2017).
-5-
J-S63005-18
Furthermore, the Commonwealth recognizes Baynes’ designation as an
SVP must be vacated under the current state of the law. We agree.
Our ruling is based upon two recent appellate court decisions.8 First, on
July 17, 2017, the Pennsylvania Supreme Court held in Commonwealth v.
Muniz, 164 A.3d 1189 (Pa. 2017), that SORNA’s registration provisions
constitute punishment, and, therefore, the retroactive application of those
provisions violates the ex post facto clauses of the federal and Pennsylvania
constitutions. Thereafter, on October 31, 2017, a panel of this Court, in
Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), appeal
granted, 190 A.3d 581 (Pa. 2018),9 recognized that “Muniz was a sea change
in the longstanding law of this Commonwealth as it determined that the
registration requirements under SORNA are not civil in nature but a criminal
punishment.” Id. at 1215. As such, the panel concluded the statutory
____________________________________________
8 This issue, too, was not raised before the trial court; however, because it
implicates the legality of Baynes’ sentence, and it may be raised for the first
time on appeal. See Batts, supra.
9 The Pennsylvania Supreme Court granted allowance of appeal on the
following claim:
Whether the Superior Court of Pennsylvania erred in vacating the
trial court’s Order finding [Respondent] to be [a Sexually Violent
Predator (“SVP”)] by extrapolating the decision in
[Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189
(2017),] to declare SVP hearings and designations
unconstitutional under 42 Pa.C.S. § 9799.24(e)(3).
Commonwealth v. Butler, 190 A.3d 581, 582 (Pa. 2018). At this time,
however, the Butler decision is controlling.
-6-
J-S63005-18
mechanism for designating a defendant as an SVP set forth in 42 Pa.C.S. §
9799.24(e)(3), which permits a trial court to make the determination based
upon clear and convincing evidence, was “constitutionally flawed” pursuant to
the United States Supreme Court’s decisions in Alleyne v. United States,
570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000).
Accordingly, the Butler panel held: “[T]rial courts cannot designate convicted
defendants SVPs (nor may they hold SVP hearings) until our General Assembly
enacts a constitutional designation mechanism.” Butler, supra, 173 A.3d at
1218. Therefore, the panel vacated the order designating the defendant as
an SVP, and remanded the case to the trial court to determine his proper
registration period pursuant to 42 Pa.C.S. §§ 9799.14 and 9799.15. See id.
The decision in Butler compels the same result here. Accordingly, we
vacate Baynes’ designation as an SVP and his concomitant lifetime registration
requirement under SORNA. Upon remand for resentencing, we direct the trial
court to determine Baynes’ proper registration period, and provide notice to
him thereof.
Moreover, our independent review of the record reveals another basis
for vacating Baynes’ most recent sentence. The trial court failed to apply the
Section 9718.2 second-strike mandatory minimum sentence of 25 years’
-7-
J-S63005-18
imprisonment to Baynes’ conviction of either rape or IDSI as instructed by the
prior panel of this Court.10 See Baynes, supra.
It is well-established that the Commonwealth has the sole discretion to
invoke a mandatory minimum sentence. Commonwealth v. Mebane, 58
A.3d 1243, 1249 (Pa. Super. 2012). “Once properly invoked by the
prosecution, a mandatory minimum sentence cannot be circumvented as a
matter of judicial discretion.” Id. See 42 Pa.C.S. § 9718.2(d) (“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 … or to place the offender on
probation or to suspend sentence.”).
Here, prior to Baynes’ original sentencing hearing, the Commonwealth
filed a notice of its intention to invoke the mandatory minimum sentence of
25 years’ imprisonment set forth in Section 9718.2(a)(1), based upon Baynes’
prior conviction of sexual assault. Although the court imposed an aggregate
minimum term of 25 years’ imprisonment, it did not impose the requisite
mandatory minimum sentence. See Baynes, supra, 156 A.3d 332
(unpublished memorandum at *5). Consequently, the panel that considered
Baynes’ direct appeal vacated the judgment of sentence and remanded the
case to the trial court to, inter alia, “properly apply … the second-strike
provision of Section 9718.2(a)(1), which [was] not satisfied by the aggregate
____________________________________________
10 As the panel noted on Baynes’ direct appeal, “[w]e can raise and review an
illegal sentence sua sponte.” Baynes, supra, 156 A.3d 332 (unpublished
memorandum at *4).
-8-
J-S63005-18
sentence[.]” Id. (unpublished memorandum at *6). Nevertheless, upon
remand, the trial court declined to impose the mandatory minimum term set
forth in Section 9718.2(a)(1), instead choosing to impose consecutive
sentences on several distinct convictions.11 Accordingly, we are compelled to
vacate Baynes’ judgment of sentence on this basis as well, and remand to the
trial court to apply the second-strike provision of Section 9718.2(a)(1).
As for the three remaining claims listed in Baynes’ brief, we find he is
entitled to no further relief. First, Baynes argues the trial court had no
authority at resentencing to impose a term of imprisonment on the two counts
for which he was assessed no further penalty during his original sentencing,
i.e., indecent exposure and simple assault. See Baynes’ Brief at 19-23. He
insists “the imposition of new sentences as to those counts was reversible
error insofar as he was not serving a sentence as to those counts.” Id. at 19.
Preliminarily, we note Baynes relies almost exclusively on statutory and
case law regarding the Post Conviction Relief Act,12 which is inapplicable since
____________________________________________
11 During the resentencing hearing, the trial court expressed confusion
concerning the mandatory minimum sentencing requirements:
I’m not real sure what the Superior Court wants me to do with
these kind[] of sentencings since this is a second sexual offense.
I don’t know if it’s supposed to be 25 to life, or if we are supposed
to sentence the way I sentenced. Since there are conflicting
opinions from the Superior Court, I‘m just taking my best shot.
N.T., 6/8/2017, at 12.
12 See 42 Pa.C.S. §§ 9541-9546.
-9-
J-S63005-18
this is a direct appeal from the judgment of sentence. Nevertheless, we note
that “[w]hen a defendant challenges one of several interdependent sentences,
he, in effect, challenges the entire sentencing plan.” Commonwealth v.
Goldhammer, 517 A.2d 1280, 1283 (1986), cert. denied, 480 U.S. 950
(1987). Therefore, after this Court vacated Baynes’ original sentence and
remanded the case for resentencing, the trial court had the authority to
impose any legal sentence.
Baynes also challenges the discretionary aspects of his June 8, 2017,
sentence, insisting the court imposed a manifestly excessive and
unreasonable sentence. See Baynes’ Brief at 25-31. Because we have
vacated Baynes’ entire sentence on a different basis, we find this claim to be
moot.
Lastly, Baynes contends the newly enacted registration requirements of
SORNA,13 which will apply to him upon remand, are “punitive, unlawful and
unconstitutional.” Id. at 34. Baynes notes that while the statute was
amended to address the concerns in Muniz,14 the burdens placed on
registrants under the new requirements are as punitive as those in Muniz.
See id. at 37-38. However, as the Commonwealth explains in its brief, Baynes
has not yet been sentenced under this statute; therefore, “any ruling on its
____________________________________________
13 See 2018, Feb. 21, P.L. 27, No. 10, § 19.
14 See 42 Pa.C.S. § 9799.51(d)(4) (explaining the intention of the General
Assembly in amending the statute was to, inter alia, address the concerns of
the Muniz and Butler Courts).
- 10 -
J-S63005-18
constitutionality in the instant appeal would be premature.” Commonwealth’s
Brief at 20. We agree. See Commonwealth v. Semuta, 902 A.2d 1254,
1261-1262 (Pa. Super. 2006) (holding defendant had no standing to challenge
constitutionality of statute under which he was not convicted), appeal denied,
932 A.2d 1288 (Pa. 2007).
Accordingly, because the trial court (1) imposed an illegal sentence on
Baynes’ conviction of indecent exposure, and (2) neglected to impose the
mandatory minimum sentence requested by the Commonwealth, we vacate
Baynes’ judgment of sentence, and remand for resentencing. 15 Additionally,
we vacate Baynes’ designation as an SVP, and direct the trial court to provide
notice to Baynes of his proper registration requirements.
Judgment of sentence vacated. Case remanded for proceedings
consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2019
____________________________________________
15Because our disposition upsets the entire sentencing scheme, we vacate the
entire sentence and remand for resentencing. See Goldhammer, supra.
- 11 -