Com. v. Wolfe, M. , 106 A.3d 800 ( 2014 )

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2014 PA Super 288COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MATTHEW BRYAN WOLFE
Appellant No. 1962 MDA 2013
Appeal from the Judgment of Sentence October 1, 2013
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0005791-2012
BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.
OPINION BY MUNDY, J.: FILED DECEMBER 24, 2014
Appellant, Matthew Bryan Wolfe, appeals from the October 1, 2013,
aggregate judgment of sentence of ten to 20 years’ imprisonment, imposed
after he was found guilty of two counts of involuntary deviate sexual
intercourse (IDSI), one count of unlawful contact with a minor, four counts
of statutory sexual assault, and one count of corruption of minors. 1 After
careful review, we vacate and remand for resentencing.
We summarize the relevant factual and procedural background of this
case as follows. On January 15, 2013, the Commonwealth filed an
information charging Appellant with the above-mentioned offenses, as well
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1
18 Pa.C.S.A. §§ 3123(a)(7), 6318(a)(1), 3122.1(a)(1), and 6301(a)(1)(i),
respectively.
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as two additional counts of IDSI, and one count each of aggravated indecent
assault and indecent exposure.2 On June 12, 2013, Appellant proceeded to
a two-day jury trial, at the conclusion of which Appellant was found guilty of
two counts of IDSI, one count of unlawful contact with a minor, four counts
of statutory sexual assault, and one count of corruption of minors. The jury
acquitted Appellant of one count each of IDSI and aggravated indecent
assault. The fourth IDSI count and the indecent exposure count were
dismissed by the trial court.
On October 1, 2013, the trial court imposed an aggregate sentence of
ten to 20 years’ imprisonment. Relevant to this appeal, Appellant received a
ten-year mandatory minimum sentence for each IDSI count pursuant to 42
Pa.C.S.A. § 9718(a)(1). Appellant did not file a post-sentence motion. On
October 31, 2013, Appellant filed a timely notice of appeal.3
On appeal, Appellant raises the following issue for our review.
In the context of imposing [a] sentence for otherwise
consensual oral sex activity between a defendant as
young as 18 and a complainant between the ages of
13 and 16, does Pennsylvania’s entire sentencing
scheme violate [Appellant]’s constitutional rights to
equal protection of the laws, due process, and the
right against cruel and unusual punishment because
it imposes vastly greater sentences for otherwise
consensual oral sex activity by means of the 10-year
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2
18 Pa.C.S.A. §§ 3125(a)(8) and 3127(a), respectively.
3
Appellant and the trial court have complied with Pa.R.A.P. 1925.
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mandatory provision at 42 Pa.C.S. § 9718 than it
does for otherwise consensual vaginal sex activity?
Appellant’s Brief at 5.
At the outset, we note that Appellant’s sole issue on appeal challenges
the constitutionality of the mandatory minimum sentencing provision at
Section 9718. Appellant avers that Section 9718 violates the Equal
Protection and Due Process Clauses of the Fourteenth Amendment, as well
as the Cruel and Unusual Punishment Clause of the Eighth Amendment.
However, we need not address these arguments, as we conclude that
Appellant’s sentence is illegal on a different basis.
We begin by noting that a challenge to the legality of the sentence can
never be waived and may be raised by this Court sua sponte.
Commonwealth v. Orellana, 86 A.3d 877, 883 n.7 (Pa. Super. 2014)
(citation omitted). We further note that issues pertaining to the United
States Supreme Court’s decision in Alleyne v. United States, 133 S. Ct.
2151 (2013), directly implicate the legality of the sentence.
Commonwealth v. Lawrence, --- A.3d ---, 2014 WL 4212715, *6-7 (Pa.
Super. 2014). With this in mind, we proceed by noting our well-settled
standard of review of questions involving the legality of a sentence.
“A challenge to the legality of a sentence … may be entertained as long
as the reviewing court has jurisdiction.” Commonwealth v. Borovichka,
18 A.3d 1242, 1254 (Pa. Super. 2011) (citation omitted). It is also well-
established that “[i]f no statutory authorization exists for a particular
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sentence, that sentence is illegal and subject to correction.”
Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super. 2014) (citation
omitted). “An illegal sentence must be vacated.” Id. “Issues relating to the
legality of a sentence are questions of law[.] … Our standard of review over
such questions is de novo and our scope of review is plenary.”
Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014) (citations
omitted).
In this case, Appellant was sentenced under the mandatory minimum
statute at Section 9718, which provides in relevant part, as follows.
§ 9718. Sentences for offenses against infant
persons
(a) Mandatory sentence.--
(1) A person convicted of the following
offenses when the victim is less than 16 years
of age shall be sentenced to a mandatory term
of imprisonment as follows:
…
18 Pa.C.S. § 3123 (relating to involuntary
deviate sexual intercourse)--not less than ten
years.
…
(c) Proof at sentencing.--The provisions of this
section shall not be an element of the crime, and
notice of the provisions of this section to the
defendant shall not be required prior to conviction,
but reasonable notice of the Commonwealth’s
intention to proceed under this section shall be
provided after conviction and before sentencing. The
applicability of this section shall be determined at
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sentencing. The court shall consider any evidence
presented at trial and shall afford the Commonwealth
and the defendant an opportunity to present any
necessary additional evidence and shall determine,
by a preponderance of the evidence, if this section is
applicable.
…
42 Pa.C.S.A. § 9718.
In Alleyne, the Supreme Court held that “facts that
increase mandatory minimum sentences must be
submitted to the jury” and must be found beyond a
reasonable doubt. Alleyne, supra at 2163.
Alleyne is an extension of the Supreme Court’s line
of cases beginning with Apprendi v. New Jersey,
530 U.S. 466 (2000). In Alleyne, the Court
overruled Harris v. United States, 536 U.S. 545(2002), in which the Court had reached the opposite
conclusion, explaining that there is no constitutional
distinction between judicial fact finding which raises
the minimum sentence and that which raises the
maximum sentence.
It is impossible to dissociate the floor of
a sentencing range from the penalty affixed to
the crime. Indeed, criminal statutes have long
specified both the floor and ceiling of sentence
ranges, which is evidence that both define the
legally prescribed penalty. This historical
practice allowed those who violated the law to
know, ex ante, the contours of the penalty that
the legislature affixed to the crime—and
comports with the obvious truth that the floor
of a mandatory range is as relevant to
wrongdoers as the ceiling. A fact that
increases a sentencing floor, thus, forms an
essential ingredient of the offense.
Moreover, it is impossible to dispute that
facts increasing the legally prescribed floor
aggravate the punishment. Elevating the low-
end of a sentencing range heightens the loss of
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liberty associated with the crime: the
defendant’s expected punishment has
increased as a result of the narrowed range
and the prosecution is empowered, by invoking
the mandatory minimum, to require the judge
to impose a higher punishment than he might
wish. Why else would Congress link an
increased mandatory minimum to a particular
aggravating fact other than to heighten the
consequences for that behavior? This reality
demonstrates that the core crime and the fact
triggering the mandatory minimum sentence
together constitute a new, aggravated crime,
each element of which must be submitted to
the jury.
Alleyne, supra at 2160-2161 (internal quotation marks
and citations omitted).
Commonwealth v. Miller, --- A.3d ---, 2014 WL 4783558, *4-5 (Pa.
Super. 2014).
In Commonwealth v. Newman, --- A.3d ---, 2014 WL 4088805 (Pa.
Super. 2014) (en banc), this Court confronted the same type of challenge to
the mandatory minimum sentence found at Section 9712.1, regarding the
proximity between drugs and guns. See id. at *3. Section 9712.1 had the
same format as Section 9718 insofar that one subsection contains the
additional fact that triggers the mandatory penalty, and another subsection
states that this fact shall be found by the trial court by a preponderance of
the evidence at sentencing. See id., quoting 42 Pa.C.S.A. §§ 9712.1(a),
9712.1(c); 42 Pa.C.S.A. §§ 9718(a), 9718(c).
The Newman Court first concluded that the defendant’s sentence was
illegal in light of Alleyne and required this Court to vacate and remand for
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resentencing. Id. at *10. However, this Court further noted that Alleyne
issues are subject to harmless error analysis but that the Alleyne issue in
Newman was not harmless. Id. at *11-12. Finally, this Court rejected the
Commonwealth’s argument that, if the error was not harmless, the
appropriate remedy would be to remand to the trial court to empanel a
second sentencing jury. Specifically, in rejecting this argument, the
Newman Court concluded that Section 9712.1 in its entirety must be struck
down as unconstitutional in light of Alleyne, concluding that its subsections
were not severable.4
The Commonwealth’s suggestion that we
remand for a sentencing jury would require this
court to manufacture whole cloth a replacement
enforcement mechanism for Section 9712.1; in other
words, the Commonwealth is asking us to legislate.
We recognize that in the prosecution of capital cases
in Pennsylvania, there is a similar, bifurcated process
where the jury first determines guilt in the trial
proceeding (the guilt phase) and then weighs
aggravating and mitigating factors in the sentencing
proceeding (the penalty phase). However, this
mechanism was created by the General Assembly
and is enshrined in our statutes at 42 Pa.C.S.A.
§ 9711. We find that it is manifestly the province of
the General Assembly to determine what new
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4
The author in this case concurred in the result in Newman, disagreeing
with the majority that the subsections of Section 9712.1 could not be
severed and concluding that no special “mechanism” was required to allow a
jury to find the element of the aggravated offense beyond a reasonable
doubt. Id. at *17 (Mundy, J., concurring). The author continues to believe
Newman was wrongly decided on that point; however, it is binding on this
Court and must be applied in a principled manner in all future cases unless
reversed by our Supreme Court.
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procedures must be created in order to impose
mandatory minimum sentences in Pennsylvania
following Alleyne. We cannot do so.
Id. at *14.5
We are also mindful of this Court’s recent decision in Commonwealth
v. Valentine, --- A.3d ---, 2014 WL 4942256 (Pa. Super. 2014). In
Valentine, the Commonwealth sought to have a mandatory minimum
sentence imposed against the defendant. The trial court allowed the
Commonwealth to amend the information to include the necessary additional
factual elements required by Alleyne to be found by the jury beyond a
reasonable doubt.6 Id. at *1. The two questions were submitted to the
jury, and it found the additional elements beyond a reasonable doubt. Id.
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5
We note the Commonwealth has filed a petition for allowance of appeal
with our Supreme Court in Newman, docketed at 646 MAL 2014. As of the
date of this decision, it is still pending.
6
In Valentine, the two questions submitted to the jury were as follows.
Did the Defendant Jose R. Valentine, visibly
possess a firearm, whether or not the firearm was
loaded or functional, that placed [the victim] in
reasonable fear of serious bodily injury during his
commission of the above-described robbery offense?
Did the Defendant Jose R. Valentine, in whole
or in part, commit the above-described robbery
offense at or near a Septa bus stop, or in the
immediate vicinity of a Septa bus stop?
Valentine, supra at *1 (citation omitted); see also generally 42 Pa.C.S.A.
§§ 9712, 9713.
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As a result, the trial court imposed the appropriate mandatory minimum
sentences pursuant to the appropriate statutes. Id.
Although the trial court seemingly followed Alleyne’s requirements,
the Valentine Court held the trial court was not permitted to allow the jury
to resolve the mandatory minimum questions absent legislative action, in
accordance with Newman.
Here, the trial court permitted the jury, on the
verdict slip, to determine beyond a reasonable doubt
whether Appellant possessed a firearm that placed
the victim in fear of immediate serious bodily injury
in the course of committing a theft for purposes of
the mandatory minimum sentencing provisions of 42
Pa.C.S.A. § 9712(a), and whether the crime occurred
in whole or in part at or near public transportation,
for purposes of the mandatory minimum sentencing
provisions of 42 Pa.C.S.A. § 9713(a). The jury
responded “yes” to both questions. In presenting
those questions to the jury, however, we conclude,
in accordance with Newman, that the trial court
performed an impermissible legislative function by
creating a new procedure in an effort to impose the
mandatory minimum sentences in compliance with
Alleyne.
The trial court erroneously presupposed that
only Subsections (c) of both 9712 and 9713 (which
permit a trial judge to enhance the sentence based
on a preponderance of the evidence standard) were
unconstitutional under Alleyne, and that
Subsections (a) of 9712 and 9713 survived
constitutional muster. By asking the jury to
determine whether the factual prerequisites set forth
in § 9712(a) and § 9713(a) had been met, the trial
court effectively determined that the unconstitutional
provisions of § 9712(c) and § 9713(c) were
severable. Our decision in Newman however holds
that the unconstitutional provisions of § 9712(c) and
§ 9713(c) are not severable but “essentially and
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inseparably connected” and that the statutes are
therefore unconstitutional as a whole. Id. at 13–14.
(“If Subsection (a) is the predicate arm … then
Subsection (c) is the enforcement arm. Without
Subsection (c), there is no mechanism in place to
determine whether the predicate of Subsection (a)
has been met.”).
Moreover, Newman makes clear that “it is
manifestly the province of the General Assembly to
determine what new procedures must be created in
order to impose mandatory minimum sentences in
Pennsylvania following Alleyne.” Newman at 14.
Therefore, the trial court lacked the authority to
allow the jury to determine the factual predicates of
§§ 9712 and 9713. See Newman at 14–15
(recognizing that several trial courts of this
Commonwealth have found Section 9712.1 as a
whole to be no longer workable without legislative
guidance).
Id. at *8. As a result, this Court vacated Valentine’s judgment of sentence
and remanded for resentencing, without the applicable mandatory minimum
sentences. Id. at *9.
As noted above, the mandatory minimum statute in this case contains
the same format as the statutes struck down as facially unconstitutional in
Newman and Valentine. See 42 Pa.C.S.A. §§ 9712(a), 9712(c),
9712.1(a), 9712.1(c), 9713(a), 9713(c), 9718(a), 9718(c). Following
Newman’s instructions, we are required to conclude that Section 9718 is
also facially unconstitutional.
We recognize that this specific case is unique insofar that the
additional fact triggering the mandatory sentence is also contained as an
element within the subsection of the IDSI statute under which Appellant was
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convicted. Compare 42 Pa.C.S.A. § 9718(a)(1) (stating, “[a] person
convicted of the following offenses when the victim is less than 16 years
of age shall be sentenced to a mandatory term of imprisonment[]”), with
18 Pa.C.S.A. § 3123(a)(7) (stating that a person is guilty of IDSI if he or she
engages in “deviate sexual intercourse” with a complainant “who is less
than 16 years of age and the person is four or more years older than the
complainant and the complainant and person are not married to each
other[]”) (emphases added). Therefore, in order to convict Appellant of
IDSI, the Commonwealth was already required to prove beyond a
reasonable doubt that the victim was less than 16 years old.
However, we are not concerned with Appellant’s conviction in this
appeal, only the imposition of the mandatory minimum sentence. In
Commonwealth v. Matteson, 96 A.3d 1064 (Pa. Super. 2014), the
defendant was convicted of aggravated indecent assault of a child, which
includes as an element of the offense that the victim is less than 13 years of
age. See 18 Pa.C.S.A. § 3125(b). Matteson was sentenced to a ten-year
mandatory minimum under Section 9718(a)(2), which requires the
imposition of said minimum sentence for certain “offenses when the victim is
less than 13 years of age[.]” 42 Pa.C.S.A. § 9718(a)(2). This Court
concluded that the trial court did not err under Alleyne in imposing the
mandatory minimum sentence.
Here, Matteson was charged with aggravated
indecent assault of a child, which requires, inter alia,
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that the victim is less than 13 years of age. See 18
Pa.C.S.A. § 3125. The victim testified that she was
11 years old at the time of the incident. N.T.,
10/28/13, at 1. The jury received an instruction that
it was required to find that the victim was less than
13 years of age. Trial Court Opinion, 3/4/14, at 4.
Therefore, by finding Matteson guilty of aggravated
indecent assault of a child beyond a reasonable
doubt, the jury specifically found the element
required to impose the mandatory minimum
sentence. See [Commonwealth v.] Watley, 81
A.3d [108,] 121 [(Pa. Super. 2013) (en banc)]
(concluding that the appellant’s mandatory minimum
sentence under section 9712.1 was not illegal under
Alleyne because the jury, by virtue of its verdict of
guilty on the possession of firearms charges,
rendered a specific finding as to whether the
appellant possessed the handguns)[, appeal denied,
95 A.3d 277]. Thus, the requirements of Alleyne
have been met, and Matteson’s claim is without
merit.
In his second claim, Matteson contends that
the mandatory minimum provisions of 42 Pa.C.S.A.
§ 9718 are unconstitutional. Brief for Appellant at
9–10.
As noted above, the language that increases a
defendant’s sentence based on a preponderance of
the evidence standard in section 9718 has been
found unconstitutional. See Watley, 81 A.3d at
117. However, since the jury found that the
Commonwealth proved every element of aggravated
indecent assault of a child beyond a reasonable
doubt, including a victim under the age of 13, the
trial court properly imposed the mandatory minimum
sentence.
Id. at 1066-1067.
In Valentine, this Court noted the tension between Newman,
Watley, and Matteson. See Valentine, supra at *9 n.4. However, the
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Valentine Court concluded that Newman controlled based on the
conclusion in Newman that the subsections of the mandatory minimum
statutes in Pennsylvania cannot be severed. Id. Based on the above
passage, it appears that the Matteson Court concluded that Section
9718(a)(2) could still be constitutionally applied since the Commonwealth
“proved every element of aggravated indecent assault of a child beyond a
reasonable doubt, including a victim under the age of 13[.]” Matteson,
supra at 1067. However, the Matteson Court could not reach that
conclusion, unless it first concluded implicitly that the various subsections of
Section 9718 were severable. Pursuant to this Court’s decision in Newman,
we conclude this is not correct. In our view, Newman abrogated this
Court’s decision in Matteson.7
Likewise, in this case, although the jury was required to find that the
victim was less than 16 years of age in order to convict Appellant, we cannot
ignore the binding precedent from an en banc decision of this Court. See
Commonwealth v. Bucknor, 657 A.2d 1005, 1007 n.1 (Pa. Super. 1995)
(stating, “as a three judge panel[,] we are bound by the rulings of a court en
banc[]”), appeal denied, 666 A.2d 1050 (Pa. 1995). Newman stands for
the proposition that mandatory minimum sentence statutes in Pennsylvania
of this format are void in their entirety. Newman, supra; Valentine,
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7
We note that Matteson was filed on July 18, 2014, and Newman was
filed on August 20, 2014.
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supra. As Section 9718 is indistinguishable from the statutes struck down
in Newman and Valentine, we are constrained to conclude that Section
9718 is also facially void. As a result, we conclude the trial court erred in
imposing the ten-year mandatory minimum.
Based on the foregoing, we are compelled to conclude that the trial
court imposed an illegal sentence when it imposed the mandatory minimum
sentence in this case. Accordingly, we vacate the trial court’s October 1,
2013 judgment of sentence, and the case is remanded for resentencing,
without the application of the Section 9718 mandatory minimum, consistent
with this opinion.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judge Jenkins joins the opinion.
Judge Bowes files a concurring opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2014
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