Com. v. Cragle, M. ( 2018 )

J-S82042-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHELLE CRAGLE, :
:
Appellant : No. 1176 WDA 2017
Appeal from the PCRA Order July 31, 2017
in the Court of Common Pleas of Lawrence County
Criminal Division, at No(s): CP-37-CR-0000693-2012
BEFORE: BENDER, P.J.E., STEVENS, P.J.E.,* and STRASSBURGER, J.**
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 27, 2018
Michelle Cragle (Appellant) appeals from the order dismissing her
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546. We affirm.
Appellant was charged with one count of corruption of minors at 18
Pa.C.S. § 6301(a)(1)(ii), a qualifying offense under the Sex Offender
Registration and Notification Act (SORNA) pursuant to 42 Pa.C.S.
§ 9799.14(b)(8). Appellant entered into a guilty plea on November 6, 2014.
In exchange for not being required to register as a sex offender, Appellant
pled guilty to corruption of minors at subsection 6301(a)(1)(i), a non-
qualifying offense, and was sentenced to a negotiated term of three years of
probation with an agreed-upon condition that she undergo sex offender
treatment.
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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On November 19, 2014, Appellant filed a motion to withdraw her guilty
plea due to a probationary condition restricting visitation with her children.
Following the appointment of new counsel and a hearing, Appellant requested
to withdraw the motion. The trial court granted Appellant’s request, and
revised the challenged probationary condition to permit visitation in
accordance with an approved Children and Youth Services plan. Order,
4/1/2015.
On November 18, 2015, Appellant violated her probation by entering a
guilty plea to new charges. Her original sentence was revoked, and she was
sentenced on November18, 2015, to 127 days to two years of imprisonment,
followed by two years of probation with the original condition that she undergo
sex offender treatment. Appellant did not file a post-sentence motion or
appeal.
In October 2016, Appellant “learned through jailhouse rumor of
information indicating the mother of one of the witnesses at the preliminary
hearing … may have coached her son as to his testimony.” PCRA Court
Opinion, 8/31/2017, at 2-3. Appellant pro se timely filed a PCRA petition on
November 9, 2016, alleging several claims for relief. The PCRA court
appointed counsel, who filed amended petitions on February 17, 2017, and
February 22, 2017. The PCRA court held hearings on April 4, 2017, and June
1, 2017. On July 31, 2017, the PCRA court issued an opinion and order
denying Appellant’s PCRA petition.
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Appellant timely filed a notice of appeal. Both Appellant and the PCRA
court have complied with Pa.R.A.P. 1925. Appellant presents this Court with
the following claims of error.
A. [] Appellant is entitled to a new trial on the basis of newly
discovered evidence[1] and the PCRA court was in error for not
granting a new trial based on said evidence.
B. The sentence of [] Appellant to corruption of minors under 18
Pa.[C.S. §] 6301(a)(1)(i) is illegal, non-applicable, and thus
void ab initio tainting all the proceedings thereafter,
in[]as[]much as the [sub]section under which Appellant pled
guilty was for non-sexual offenders, however her sentence
always included sex offender treatment and rules, as the
legislature intended under 18 Pa.[C.S. §] 6301(a)(1)(ii) and
the PCRA court was in error for not vacating said sentence and
awarding Appellant a new trial[.]
Appellant’s Brief at 4 (unnecessary capitalization removed).
“Our standard of review of a [PCRA] court order granting or denying
relief under the PCRA calls upon us to determine ‘whether the determination
of the PCRA court is supported by the evidence of record and is free of legal
error.’” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013)
(quoting Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)).
1 While Appellant refers to “newly discovered evidence” she is actually
asserting an after-discovered evidence claim pursuant to 42 Pa.C.S.
§ 9543(a)(2). See Commonwealth v. Burton, 158 A.3d 618, 629 (Pa.
2017) (explaining that “the newly-discovered facts exception to the time
limitations of the PCRA, as set forth in subsection 9545(b)(1)(ii),
is distinct from the after-discovered evidence basis for relief delineated in 42
Pa.C.S. § 9543(a)(2)[]”).
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Appellant first claims that the PCRA court erred in denying her motion
for a new trial based on after-discovered evidence. Appellant’s Brief at 10-
22. Prior to pleading guilty, Appellant appeared for a preliminary hearing at
which Detective Kevin Seelbaugh and two children (D.B. and S.L.) testified.
The after-discovered evidence at issue is a statement from fellow inmate Lisa
Jones-Orock, who alleges that she overheard D.B.’s mother (D.S.) imply that
she had attempted to coach D.B.’s preliminary hearing testimony. Appellant’s
Brief at 11.
“When an appellant enters a guilty plea, she waives her right to
challenge on appeal all non-jurisdictional defects except the legality of [her]
sentence and the validity of [her] plea.” Commonwealth v. Pantalion, 957
A.2d 1267, 1271 (Pa. Super. 2008) (citation and quotation marks omitted).
However, the Supreme Court has held that “any after-discovered evidence
which would justify a new trial would also entitle a defendant to withdraw his
guilty plea.” Commonwealth v. Heaster, 171 A.3d 268, 273 n.6 (Pa. Super.
2017) (quoting Commonwealth v. Peoples, 319 A.2d 679, 681 (Pa. 1974)).
Here, Appellant asks this Court to vacate her conviction and grant her a
new trial. Appellant’s Brief at 22. However, because the after-discovered
evidence at issue concerns testimony from a preliminary hearing, following
which Appellant entered a guilty plea, we note that she actually is asking to
withdraw her guilty plea. Regardless, under Peoples our review is the same,
and we consider her claim mindful of the following.
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To warrant relief, after-discovered evidence must meet a
four-prong test: (1) the evidence could not have been obtained
before the conclusion of the trial by reasonable diligence; (2) the
evidence is not merely corroborative or cumulative; (3) the
evidence will not be used solely for purposes of impeachment; and
(4) the evidence is of such a nature and character that a different
outcome is likely. At an evidentiary hearing, an appellant must
show by a preponderance of the evidence that each of these
factors has been met in order for a new trial to be warranted.
Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa. Super. 2007) (citation
omitted).
D.S. and Jones-Orock testified at the April 4, 2017 evidentiary hearing.
The PCRA court summarized the testimony as follows.
[D.S.] testified first and was the mother of the witness in
question[, D.B.]. [D.S.] was imprisoned on a retail theft
conviction in October 2016. [D.S.] testified she did not know Lisa
Jones-Orock well although they were together in Lawrence County
Corrections at the same time and also shared a bunk. [D.S.]
stated Jones-Orock did not like her and they only spoke briefly
during the time they were incarcerated together. Regarding her
children, [D.S.] stated she did not bring up the matter herself, but
that people would ask her about the situation. [D.S.] could not
identify the persons with [whom] she had the conversations.
[D.S.] further described the conversations as not including much
detail except to say [Appellant] “got off with it because her lawyer
did a good job.” [D.S.] was then extensively examined as to
whether she ever coached any of her children. [D.S.] denied this
and also denied ever having told anyone at the county jail she
coached her children to say anything.
Lisa Jones-Orock contradicted [D.S.’s] testimony. Jones-
Orock was imprisoned on charges of criminal homicide in October
2016. Jones-Orock testified she was a bunkmate of … [D.S.], and
she recalled a specific incident where [Appellant] and [D.S.] were
separated, and [D.S.] and other girls on the block were talking
about [Appellant’s] case. The testimony of [D.B.] came up in
regards to a way in which he misspoke, at which point [D.S.] told
the other girls “that’s not what I told him to say.”
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PCRA Court Opinion, 8/31/2017, at 4-5 (footnotes and unnecessary
capitalization omitted).2
Appellant argues that the after-discovered evidence would have been
admissible at a trial, see Appellant’s Brief at 19-22, and “would be used by
Appellant to show that the information which the Commonwealth originally
charged her under was buil[t] on a false foundation.” Appellant’s Brief at 18.
The PCRA court addressed this argument as follows.
The evidence being presented as newly discovered is
hearsay testimony that the mother of one of the witnesses at the
preliminary hearing coached her son. The mother did not testify
at the preliminary hearing herself. This evidence of coaching does
not satisfy all the elements to obtain relief under the rules relating
to newly-discovered[3] evidence, i.e., any evidence of coaching
would only go to the credibility of her son’s testimony. Because
evidence solely used to impeach credibility is outside the scope of
the avenue for relief, [Appellant’s] [] PCRA [p]etition [wa]s
denied.
PCRA Court Opinion, 8/31/2017, at 5.
“A defendant seeking a new trial must demonstrate he will not use the
alleged after-discovered evidence solely to impeach a witness’s credibility.”
Commonwealth v. Griffin, 137 A.3d 605, 610 (Pa. Super. 2016) (citations
and quotation marks omitted). The PCRA court’s conclusion that the alleged
2 The PCRA court noted that both D.S. and Jones-Orock had crimen falsi
convictions in their pasts. PCRA Court Opinion, 8/31/2017, at 4 n.5, 5 n.7.
3Though the PCRA court used the wrong nomenclature, it correctly analyzed
Appellant’s claim under the after-discovered evidence framework.
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after-discovered evidence would not be used for anything beyond impeaching
D.B.’s credibility at a new trial is supported by the record. See id. (quoting
Commonwealth v. Castro, 93 A.3d 818, 827, n.13 (Pa. 2014)) (finding that
“[e]ven if his impeachment would ‘destroy and obliterate’ a witness, it is
still impeachment” and “a new trial could not be granted … on that basis
alone”). Accordingly, we conclude that the PCRA court did not err in
determining that Appellant’s after-discovered evidence claim failed.
Appellant alleges in her second claim that her sentence is illegal because
it includes sex offender treatment even though she pled guilty to a non-
qualifying offense. Appellant’s Brief at 22-27.
We note at the outset that Appellant’s original sentence was imposed
pursuant to a negotiated plea agreement to include specifically a probationary
condition of sex offender treatment. See N.T., 11/6/2014, at 4
(acknowledging that her understanding of the negotiated sentence was “three
years probation; sexual offense treatment, yes”). Following revocation, the
same probationary conditions were requested by the Commonwealth, N.T.,
11/18/2015, at 4, and imposed by the court, Order, 11/18/2015.
However, a defendant may not agree to an illegal sentence, even as part
of a negotiated plea agreement. See Commonwealth v. Gentry, 101 A.3d
813, 819 (Pa. Super. 2014).
If no statutory authorization exists for a particular sentence,
that sentence is illegal and subject to correction. An illegal
sentence must be vacated. In evaluating a trial court’s application
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of a statute, our standard of review is plenary and is limited to
determining whether the trial court committed an error of law.
Commonwealth v. Hall, 994 A.2d 1141, 1144 (Pa. Super. 2010) (citation
omitted). The statutory authorization for a sentencing judge to impose
probationary conditions is found in 42 Pa.C.S. § 9754.
(a) General Rule.—In imposing an order of probation the court
shall specify at the time of sentencing the length of any term
during which the defendant is to be supervised, which term may
not exceed the maximum term for which the defendant could be
confined, and the authority that shall conduct the supervision.
(b) Conditions generally.—The court shall attach such of the
reasonable conditions authorized by subsection (c) of this section
as it deems necessary to insure or assist the defendant in leading
a law-abiding life.
(c) Specific conditions.—The court may as a condition of its
order require the defendant:
***
(13) To satisfy any other conditions reasonably related to
the rehabilitation of the defendant and not unduly restrictive
of his liberty or incompatible with his freedom of conscience.
42 Pa.C.S. § 9754. “By its plain terms, Section 9754 empowers sentencing
courts to impose reasonable conditions of probation … to assist the defendant
in leading a law-abiding life, so long as the conditions do not result in a
violation of the defendant’s essential constitutional liberty and freedom of
conscience.” Commonwealth v. Hall, 80 A3d 1204, 1212 (Pa. 2013).
The PCRA court responded to Appellant’s claim as follows.
[Appellant] is correct in that her conviction for [c]orruption
of [m]inors pursuant to 18 Pa.C.S. § 6301(a)(1)(i) is not a
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SORNA-qualifying offense. However, the underlying facts of her
specific circumstances justify the imposition of non-SORNA sex
offender rules and regulations. Specifically, [Appellant’s]
[c]orruption of [m]inors charge arose out of circumstances where
[Appellant] admits that she “[permitted] three juveniles to engage
in sexual acts with each other while they were under [her]
supervision and care.” [N.T. 11/6/2014, at 9.]
Moreover, in the intervening time between [Appellant’s]
initial sentence and the revocation …, compounding factors
occurred. First, [Appellant’s] husband Larry Cragle was found
guilty of several sex offenses relating a pattern of sexual conduct
[at] the mutual home of Larry Cragle and [Appellant]. Second,
despite being out on bail, Larry Cragle failed to appear for his
sentencing as ordered, and after a manhunt lasting two weeks,
Larry Cragle was found in his own house being harbored and
protected by [Appellant]. Larry Cragle had been sheltered and
hidden in a false room in the attic of their house. Despite the
underlying charge not being a SORNA-qualifying offense, given
the underlying facts of the case, as well as the subsequent
intervening facts after initial sentencing on November 6, 2014, the
addition of non-SORNA sex-offender rules as part of [Appellant’s]
sentence [is] reasonably related to her rehabilitation.
PCRA Court Opinion, 8/31/2017, at 10-11 (footnotes omitted).
Based on the foregoing, we conclude that the trial court did not err by
imposing this condition. While Appellant negotiated a guilty plea to a
subsection that was not SORNA-qualifying, she was charged under a
subsection that was. The conduct underlying her conviction and the
circumstances leading to her revocation establish that sex offender treatment
is appropriate. Thus, this condition was reasonably related to her
rehabilitation, intended to assist her in living a law-abiding life, and did not
constitute a violation of her rights. Appellant’s sentence is not illegal, and she
agreed to that specific probationary condition at the time of her original plea.
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Accordingly, we find that the PCRA court properly dismissed Appellant’s
petition, and as such, we affirm.
Order affirmed.4
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
4 We note with displeasure that the PCRA court, Appellant, and the
Commonwealth cited to and relied upon unpublished memoranda in their
respective filings. See PCRA Court Opinion, 8/31/2017, at 9-10; Appellant’s
Brief at 17, 18, 25; Commonwealth’s Brief at 11. We remind all parties that
this is prohibited, and refer them to Superior Court Internal Operating
Procedure § 65.37(A) regarding citation to unpublished memoranda.
An unpublished memorandum decision shall not be relied
upon or cited by a Court or a party in any other action or
proceeding, except that such a memorandum decision may be
relied upon or cited (1) when it is relevant under the doctrine of
law of the case, res judicata, or collateral estoppel, and (2) when
the memorandum is relevant to a criminal action or proceeding
because it recites issues raised and reasons for a decision affecting
the same defendant in a prior action or proceeding. When an
unpublished memorandum is relied upon pursuant to this rule, a
copy of the memorandum must be furnished to the other party
and to the Court.
210 Pa. Code § 65.37(A) (emphasis added).
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Date: 2/27/2018
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