J-S27039-19
2019 PA Super 231
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GERALD W. POPE :
:
Appellant : No. 1778 WDA 2018
Appeal from the PCRA Order Entered November 15, 2018
In the Court of Common Pleas of McKean County Criminal Division at
No(s): CP-42-CR-0000531-2013
BEFORE: OLSON, J., OTT, J., and COLINS*, J.
OPINION BY COLINS, J.: FILED JULY 29, 2019
Appellant, Gerald W. Pope, appeals from the order that denied his first
petition filed under the Post Conviction Relief Act (PCRA). 1 Upon review, we
conclude that the trial court imposed an illegal sentence as to the unlawful
contact with a minor offense.2 We therefore reverse the PCRA court’s order,
vacate Appellant’s judgment of sentence, and remand for resentencing.
This Court previously summarized the factual and procedural history of
this appeal as follows:
K.H., who was born in December 1999, lived with her biological
mother and her mother’s boyfriend, Appellant, from the time she
was three years old until she turned thirteen. N.T., 3/24/14, at
23. In January 2013, K.H. began dating B.V. Id. at 23-24.
Appellant did not approve of the relationship. Id. at 26.
K.H. eventually confided in a friend that Appellant told K.H. that
she would have to perform various sexual acts for Appellant in
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1 42 Pa.C.S. §§ 9541–9546.
2 18 Pa.C.S. § 6318(a)(1).
* Retired Senior Judge assigned to the Superior Court.
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order to obtain permission to see her boyfriend. N.T., 3/24/14,
at 24-25, 26, 41. At trial, K.H. testified that Appellant advised her
of the following options if she wanted to see her boyfriend or
friends, and the time that would accordingly be allotted: “He said
one [hand job] would be for two hours, two would be four and a
blow job would be the whole day.” Id. at 26. K.H. testified that
she gave Appellant a “hand job” in January 2013, in order to see
her boyfriend. Id. at 29. She testified that this occurred after
school and that she and Appellant were the only two people at
home at the time. Id. at 29-30. She also testified that after
performing this act, she was permitted to see her boyfriend, but
that after two hours with her boyfriend elapsed, Appellant
proceeded to the boyfriend’s house and, standing outside, texted
K.H., advising her that it was time to leave. Id. at 35-36.
K.H. further testified that she subsequently gave Appellant “hand
jobs” on multiple occasions in order to see her boyfriend. N .T.,
3/24/14, at 37. K.H. stated that no one else was in the home
during these occasions that occurred after school. Id. at 37. K.H.
also testified that on one occasion, Appellant “tried sticking [his
penis] up my butt.” Id. at 37.
K.H. testified that the first person she told about these incidents,
approximately six months after they began, was her friend, E.K.
N.T., 3/24/14, at 41. Although K.H. did not tell her father about
these incidents, he indirectly found out after E.K. confided in
another friend. Id. at 41-42. Upon learning of these assertions,
K.H.’s father took her to the police station in order to report the
incidents. Id. at 41-42.
Appellant was charged with one count of criminal attempt of
involuntary deviate sexual intercourse [(IDSI)]; one count of
aggravated [indecent] assault; one count of indecent assault; one
count of unlawful contact with a minor and one count of corruption
of minors.[3] Amended Information, 3/21/14, at 1-2. Following a
jury trial, Appellant was convicted of unlawful contact with a minor
and corruption of minors. He was found not guilty of the other
charges.
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3 18 Pa.C.S. §§ 901(a), 3125(a)(8), 3126(a)(8), 6318(a)(1), and
6301(a)(1)(i), respectively.
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Appellant was sentenced on August 7, 2014, to a period of
incarceration of 62-124 months. He timely appealed on
September 2, 2014.
Commonwealth v. Pope, No. 1486 WDA 2014, unpublished memorandum
at 1-3 (Pa. Super. filed June 1, 2015). This Court affirmed Appellant’s
conviction in a June 1, 2015 decision. Id. at 7-10. Appellant did not seek our
Supreme Court’s review of this Court’s decision.
On January 13, 2016, Appellant filed his first, timely, pro se PCRA
petition. On August 25, 2016, the PCRA court appointed counsel for Appellant
in the PCRA proceedings. Appellant’s first and second appointed counsel both
withdrew from representation of Appellant, and, on April 26, 2017, the PCRA
court appointed Appellant’s current PCRA counsel, John Thomas, Esq. and
granted him leave to file an amended PCRA petition. On August 15, 2017,
Appellant, through his counsel, filed an amended petition alleging that he was
denied effective assistance of counsel by his trial counsel based on his failure
to file a request for a bill of particulars that would have cured deficiencies in
the criminal information. The Commonwealth answered the amended PCRA
petition, and Appellant then filed a motion for leave to amend the PCRA
petition on November 28, 2017 to include an argument that, in the sentencing
order, the trial court erroneously required Appellant to register for life under
the Sex Offender Registration and Notification Act (SORNA)4 when in fact he
should only have been required to register for 25 years as a Tier II offender.
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4 42 Pa.C.S. §§ 9799.10-9799.42.
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The PCRA court granted Appellant leave to amend his PCRA petition on June
20, 2018, and directed the parties file briefs on this additional issue. On July
18, 2018, Appellant filed a second motion for leave to amend the PCRA petition
to include the argument that the trial court incorrectly graded the unlawful
contact with a minor charge as a felony of the first degree. In a July 24, 2018
order, the PCRA court granted Appellant leave to amend and directed further
briefs to be filed on this issue.
On November 15, 2018, the PCRA court entered an opinion and order
granting in part and denying in part the PCRA petition. The PCRA court
rejected Appellant’s argument concerning the grading of the unlawful contact
with a minor charge, concluding that Appellant’s trial counsel was not
ineffective for not objecting to the grading of the unlawful contact charge
because he had an objectively reasonable basis for not challenging the grading
on the unlawful contact count. PCRA Court Opinion at 4-7. In addition, the
PCRA court concluded that Appellant’s trial counsel was not ineffective for not
filing a request for a bill of particulars but that Appellant’s SORNA lifetime
registration based on two convictions arising out of the same course of conduct
was inappropriate under Commonwealth v. Lutz-Morrison, 143 A.3d 891
(Pa. 2016), and therefore Appellant could only be subjected to a 25-year
registration period. PCRA Court Opinion at 1-4, 7-8. Appellant filed a timely
appeal of the PCRA court’s order. In his Pa.R.A.P. 1925(b) statement of errors
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complained of on appeal, Appellant solely objected to the PCRA court’s ruling
concerning the grading of the unlawful contact with a minor offense.5
Appellant presents the following issues for our review:
I. Whether [Appellant’s] trial counsel, Attorney Hackwelder, was
ineffective for failing to correct the grading and offense gravity
score attributed to the offense of Unlawful Contact with Minor, 18
Pa.C.S.A. §6318(a)(1) at the time of sentencing?
II. Whether [Appellant’s] appellate counsel, Attorney Bulson, was
ineffective for failing to argue on appeal that the grading and
offense gravity score attributed to the offense of Unlawful Contact
with Minor, 18 Pa.C.S.A. §6318(a)(1) was incorrect?
Appellant’s Brief at 4. Appellant frames these issues as a claims of ineffective
assistance of counsel arising out of his trial and appellate counsels’ failure to
challenge the first-degree felony grading of the unlawful contact with a minor
offense. We conclude that the grading of the unlawful contact offense as a
felony of the first degree was contrary to Section 6318 of the Crimes Code
and relevant case law interpreting that statute and that the sentence imposed
upon Appellant for this charge was consequently illegal. See
Commonwealth v. Adams-Smith, ___ A.3d ___, 2019 PA Super 151, *14
(filed May 7, 2019) (challenge to legality of a sentence cannot be waived and
may be raised sua sponte by an appellate court reviewing a ruling on a timely
PCRA petition); Commonwealth v. Weimer, 167 A.3d 78, 83 n.6 (Pa. Super.
2017) (challenge to the proper grading of an offense implicates the legality of
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5Appellant filed his statement of errors complained of on appeal on December
18, 2018. The trial court entered a Rule 1925(a) statement on December 27,
2018.
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the sentence). Therefore, we need not conduct an ineffective assistance of
counsel analysis in this case.
When reviewing the legality of a sentence, our standard of review is de
novo and our scope of review is plenary. Commonwealth v. Bickerstaff,
204 A.3d 988, 995 (Pa. Super. 2019). When a sentence lacks statutory
authorization or exceeds the legal parameters prescribed by the applicable
statute, the sentence is illegal and must be vacated, and the appellate court
shall remand the matter for a corrected sentence to be imposed. Id.
Section 6318 of the Crimes Code, defining the offense of unlawful
contact with a minor, provides 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:
(1) Any of the offenses enumerated in Chapter 31 (relating
to sexual offenses).
(2) Open lewdness as defined in section 5901 (relating to
open lewdness).
(3) Prostitution as defined in section 5902 (relating to
prostitution and related offenses).
(4) Obscene and other sexual materials and performances
as defined in section 5903 (relating to obscene and other
sexual materials and performances).
(5) Sexual abuse of children as defined in section 6312
(relating to sexual abuse of children).
(6) Sexual exploitation of children as defined in section 6320
(relating to sexual exploitation of children).
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(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(a)-(b).
In Commonwealth v. Reed, 9 A.3d 1138 (Pa. 2010), our Supreme
Court explained that the offenses listed in Section 6318(a)(1) to (6) are not
predicate offenses for the crime of an unlawful contact with a minor. Id. at
1146. “Rather, a defendant is guilty under [S]ection 6318 if he or she contacts
the minor for the purpose of engaging in the prohibited behaviors criminalized
in Chapter 31” of the Crimes Code or the other offenses set forth in Section
6318(a). Weimer, 167 A.3d at 83 (emphasis in original); see also Reed, 9
A.3d at 1146. Thus, a defendant need not be convicted of a Section
6318(a)(1) to (6) offense to be found guilty of unlawful contact with a minor,
and in fact need not even be separately charged with the underlying offense.
Reed, 9 A.3d at 1146; Weimer, 167 A.3d at 83.
Our Supreme Court’s decisions in Reed and Commonwealth v.
Aikens, 168 A.3d 137 (Pa. 2017), and this Court’s decision in Weimer each
addressed the issue presently before us concerning the proper grading of
unlawful contact with a minor offense where a defendant is acquitted of the
underlying offenses under Section 6318(a). In Reed, the defendant was
charged with attempted unlawful contact with a minor, graded as a first-
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degree felony, along with four statutory Chapter 31 offenses, including two
that were graded as first-degree felonies, one that was graded as a second-
degree felony, and another that was graded as a second-degree
misdemeanor. 9 A.3d at 1141. The defendant was convicted of attempted
unlawful contact with a minor but acquitted of all four of the Chapter 31
offenses; the trial court imposed a sentence on the defendant for the unlawful
contact conviction based on the first-degree felony grading, concluding that
the felony grading for that offense was not contingent on conviction of the
Chapter 31 offenses. Id. at 1141-42. The High Court concluded that, while
the Commonwealth was not required to charge the defendant with the
underlying offenses of Section 6318(a), the fact that he was charged with and
then acquitted of those crimes “cannot be ignored when applying the
appropriate grading under subsection 6318(b).” Id. at 1147. The Court
stated that, in light of the fact the defendant was acquitted of each of the
Chapter 31 offenses, it could not countenance a result where “the sentencing
court had to guess which offense [the defendant] sought to commit when he
contacted” the minor. Id. Thus, the Court vacated the defendant’s sentence
and remanded for the sentencing court to apply the default grading under
Section 6318(b). Id. at 1148.
In Aikens, the defendant was charged with IDSI and unlawful contact
with a minor, both graded as felonies of the first degree. 168 A.3d at 138.
The jury instruction provided that to find the defendant guilty of the unlawful
contact offense “you must find that . . . [the defendant] was intentionally in
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contact with a minor . . . [and] that contact was for the purposes of engaging
in an unlawful act—and in this case, that unlawful act is alleged to be [IDSI].”
Id. The jury convicted the defendant of unlawful contact, but acquitted him
of IDSI. Id. In his appeal challenging the first-degree grading for the unlawful
contact charge, the defendant relied principally on Reed, but the Court
distinguished Reed on the basis that the defendant in that case was charged
with, and acquitted of, multiple Chapter 31 offenses, whereas the jury
instruction in Aikens made clear that there was only one underlying Section
6318(a) offense, relieving the sentencing court of “any guesswork.” Id. at
143-44. The Court concluded that as jurors are presumed to follow the court’s
instructions, the jury necessarily found that the unlawful contact was for the
specific purpose of committing the first-degree offense of IDSI and therefore
the grading of the unlawful contact charge as a first-degree felony was also
proper. Id. at 143, 145.
Finally, in Weimer, the defendant was charged with unlawful contact
with a minor, graded as a felony of the second degree, along with three
Chapter 31 offenses, but was only convicted of the unlawful contact offense.
167 A.3d at 80, 84. On appeal, the defendant argued that the unlawful contact
conviction should have taken the default grading of a third-degree felony
because the jury instructions did not specify which of the Chapter 31 offenses
the contact related to and the lowest grade of the charged Chapter 31 offenses
was a misdemeanor of the second degree. Id. at 82-84. This Court
determined that the lack of specificity in the jury instructions as to the
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underlying Section 6318(a) offense left the trial court to “guess[] what crime
[the defendant] sought to commit when he contacted the minor,” a result that
“is neither permitted or intended under the statute.” Id. at 85. In such a
case where the trial court lacked clarity on the underlying offense and the
lowest possible Section 6318(a) offense was graded lower than the default
grading of a felony of the third degree, we concluded that the default grading
should have been applied. Id.
In the present matter, Appellant was charged in the criminal information
with three Chapter 31 offenses that would qualify as underlying criminal
conduct for Section 6318(a): attempted IDSI, a felony of the first degree;
aggravated indecent assault, a felony of the second degree; and indecent
assault, a misdemeanor of the second degree. Amended Criminal
Information, 3/21/14. Appellant’s unlawful contact with a minor count was
also graded as a first-degree felony, and the information did not specify which
of the Section 6318(a) offenses on which the charge was based.6 Id.
The trial court charged the jury on the unlawful contact count, in
relevant part, as follows:
To find the Defendant guilty of this offense you must find that
each of the following three elements have been proven beyond a
reasonable doubt.
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6The information provided that the contact with the minor victim was “for the
purpose of engaging in a sexual act, to wit: Rape, Statutory Sexual Assault,
IDSI, Institutional Sexual Assault, Aggravated Indecent Assault, Indecent
Exposure, Sexual Intercourse with Animal.” Amended Criminal Information,
3/21/14.
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First, that the Defendant was intentionally in contact with the
minor [K.H.]. . . .
Second, that the contact was for the purpose of engaging in an
unlawful act – that the unlawful act being Aggravated Indecent
Assault or Indecent Assault as I’ve already defined to you. . . .
N.T., 3/25/14, at 46. At the conclusion of the instructions, the trial court and
counsel engaged in a side bar discussion regarding whether the jury would be
required to identify on the verdict slip which of the charged underlying
offenses of aggravated indecent assault or indecent assault would serve as
the basis for a finding of guilt as to the unlawful contact charge; the trial court
ultimately concluded that a change to the verdict slip was not necessary. Id.
at 48-51.
During deliberations, the jury submitted a question regarding whether
a verbal proposition constituted unlawful contact under Section 6318, and the
trial court reiterated to the jury that “a proposition to commit the acts entailed
in Count 2, Aggravated Indecent Assault and Count 3, Indecent Assault, would
constitute Unlawful Contact with a Minor.” Id. at 76. The jury returned a not
guilty verdict as to the attempted IDSI, aggravated indecent assault, and
indecent assault charges, and a guilty verdict as to the unlawful contact with
a minor and corruption of minors charges. Id. at 82. On August 7, 2014, the
trial court sentenced Appellant to 62 to 124 months of incarceration on the
unlawful contact charge, graded by the trial court as a felony of the first
degree. Sentencing Order, 8/7/14.
Based upon our review, it is readily apparent that the first-degree felony
grade applied to the unlawful contact with a minor offense was in error. While
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Appellant was charged with a first-degree felony – attempted IDSI – which
could serve as a basis for a conviction under Section 6318, the trial court only
instructed the jury to determine whether Appellant contacted the minor victim
to engage in aggravated indecent assault or indecent assault, a second-degree
felony or second-degree misdemeanor, respectively. Section 6318(b)
provides that the highest grade that could be applied is “the same grade and
degree as the most serious underlying offense in subsection (a),” 18 Pa.C.S.
§ 6318(b)(1), and therefore Appellant’s unlawful contact conviction could not
be graded higher than the second-degree felony grade of the aggravated
indecent assault charge.
Furthermore, pursuant to Reed and Weimer and in light of the fact that
Appellant was charged with two Chapter 31 offenses and acquitted of both,
the appropriate grading of the unlawful contact offense should have been the
default third-degree felony grade. While the fact of Appellant’s acquittal of
the two underlying offenses does not undermine the unlawful contact
conviction, the acquittal meant that the trial court “had to guess which offense
[Appellant] sought to commit when he contacted” the minor victim. Reed, 9
A.3d at 1147. Reed and Weimer instruct that in such cases where the jury
weighs more than one underlying Section 6318(a) offense when determining
whether a defendant engaged in unlawful contact with a minor and the
defendant is acquitted of all of those offenses, an unlawful contact conviction
should be graded according to the lowest grade of the charged Section
6318(a) offenses or the default third-degree felony grade, whichever is
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greater. Id. at 1147-48; Weimer, 167 A.3d at 85. Thus, Appellant’s unlawful
contact conviction should have been graded as a third-degree felony, and the
maximum sentence that could have lawfully been imposed was seven years
of incarceration. See 18 Pa.C.S. § 1103(3). Appellant’s sentence of 62 to
124 months of incarceration imposed by the trial court on this count was
therefore illegal. Accordingly, we vacate the sentence imposed and remand
this matter for resentencing. See Weimer, 167 A.3d at 85-86 (vacating
sentence of 5 to 10 years of imprisonment and remanding for resentencing
where unlawful contact offense was erroneously graded as a second-degree
felony and default third-degree felony grade should have applied).
Order reversed. Judgment of sentence vacated. Case remanded for
resentencing consistent with this opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2019
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