Com. v. Noble, B. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
BRANDON J. NOBLE,
Appellant No. 986 MDA 2017
Appeal from the Judgment of Sentence November 29, 2016
in the Court of Common Pleas of Lackawanna County
Criminal Division at No.: CP-35-CR-0001777-2014
BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*
JUDGMENT ORDER BY PLATT, J.: FILED MARCH 08, 2018
Appellant, Brandon J. Noble, appeals from the judgment of sentence
imposed following his entry of a guilty plea to one count of involuntary deviate
sexual intercourse (IDSI). We remand for correction of the record and
preparation of a supplemental trial court opinion.
This case stems from Appellant’s unlawful sexual contact with the
victim, J.G., over a one year-long period, while she was twelve and thirteen
years old. On December 30, 2014, Appellant pleaded guilty to one count of
IDSI.1 On December 16, 2015, he filed a motion to withdraw his plea, which
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 As discussed infra, it is unclear whether Appellant pleaded guilty to IDSI
under 18 Pa.C.S.A. § 3123(a)(7) (complainant less than sixteen years of age;
offender four or more years older and not married to complainant) or §
3123(b) (complainant less than thirteen years of age).
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the trial court denied. On November 29, 2016, the court determined that
Appellant is a sexually violent predator. It sentenced him to a term of not less
than seventy-eight nor more than 160 months’ incarceration, followed by
eighty months of probation. Appellant’s motion for reconsideration of
sentence was denied by operation of law on May 22, 2017. Appellant timely
appealed, and filed a timely concise statement of errors complained of on
appeal. See Pa.R.A.P. 1925(b). The court filed an opinion on September 6,
2017. See Pa.R.A.P. 1925(a).
On appeal, Appellant raises issues challenging his plea and sentence,
and, significant to our disposition, argues that the court sentenced him in
accordance with the incorrect section of the IDSI statute (section 3123(b),
instead of 3123(a)(7)), which negatively impacted his offense gravity score
(OGS). (See Appellant’s Brief, at 5, 24-26). Because the trial court has
submitted to this Court an inadequate Rule 1925(a) opinion and a certified
record with numerous inconsistences, we are constrained to remand.
We begin by emphasizing that the absence of an adequate trial court
opinion poses a substantial impediment to meaningful and effective appellate
review. See Commonwealth v. Woosnam, 819 A.2d 1198, 1203–04 (Pa.
Super. 2003); Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998).
Here, from the record before us, it is impossible to discern with certainty
the specific section of the IDSI statute pursuant to which Appellant pleaded
guilty and was sentenced. Although the written guilty plea colloquy states
that Appellant pleaded guilty to section 3123(a), the elements listed directly
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correspond to section 3123(b). (See Guilty Plea Colloquy, 12/30/14, at 1, 3).
The docket and several documents in the record, including the sentencing
order, indicate that Appellant pleaded guilty and was sentenced pursuant to
section 3123(b). (See Criminal Docket, at 4; Order of Sentence, 11/29/16;
Guideline Sentence Form, (date illegible), at 1 (listing OGS of 14); Department
of Corrections Commitment Form, 12/07/16, at 1, 3). However, other record
documents indicate that the applicable section is 3123(a)(7). (See Order
Denying Motion to Withdraw Guilty Plea, 11/08/16, at 3; Order of Sexual
Offender’s Board Assessment, 1/05/15).
The trial court’s Rule 1925(a) opinion is likewise inconsistent.
Specifically, it first states that Appellant pleaded guilty to one count of IDSI
at section 3123(b). (See Trial Court Opinion, 9/06/17, at 2). It then
contradictorily explains that: “the written Guilty Plea Colloquy reflects that the
plea entered by [Appellant] and accepted by the [c]ourt was to one (1) count
of IDSI under 18 Pa.C.S.A. § 3123(a)(7) with an OGS of 12.” (Id. at 19)
(citing the Guilty Plea Colloquy). Although the court acknowledged that the
docket reflects the plea was to section 3123(b), it characterized this as a
clerical error to be corrected following this appeal. (See id.).
Under these circumstances, where both the trial court’s Rule 1925(a)
opinion and the written guilty plea colloquy on which it relies are internally
inconsistent with regard to the relevant offense, we have concluded that the
best disposition is to remand for correction of the record and preparation of a
supplemental Rule 1925(a) opinion. Upon remand, the court may, if it deems
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necessary, conduct further proceedings to aid it in carrying out these
directives.
Case remanded with instructions. Panel jurisdiction is retained.
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