J-S21013-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
JERRY SINGLETON,
Appellant No. 486 EDA 2014
Appeal from the Judgment of Sentence September 20, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003235-2010
BEFORE: BOWES, JENKINS, and PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 19, 2015
Jerry Singleton appeals from the September 20, 2013 judgment of
sentence of ten to twenty years imprisonment. The instant sentence was
imposed following a prior direct appeal to this Court, wherein we affirmed
the underlying convictions for aggravated indecent assault of a child,
unlawful contact with a minor, and corruption of a minor, but vacated an
illegal sentence and remanded for resentencing. We affirm.
Since the underlying facts are not relevant to our disposition, we do
not include a full recitation of the facts herein.1 Suffice it to say, during
January 2010, Appellant was charged with several offenses stemming from
____________________________________________
1 A complete factual history of the case can be found at Commonwealth v. Singleton, 75 A.3d 545 (Pa.Super. 2013) (unpublished memorandum at 1- 2).
* Retired Senior Judge assigned to the Superior Court. J-S21013-15
his sexual abuse of A.L., a twelve year-old family friend. Appellant’s mother
and the victim’s mother were stepsisters, and the assaults occurred while
A.L. was sleeping overnight at Appellant’s mother’s home. On November 12,
2010, a jury convicted Appellant of aggravated indecent assault of a child,
unlawful contact with a minor, and corruption of a minor. He was acquitted
of rape and sexual assault.
On February 18, 2011, the trial court imposed an aggregate term of
thirteen to twenty-six years imprisonment consisting of consecutive
sentences of ten to twenty years for aggravated indecent assault of a child,
three to six years for unlawful contact with a minor, and no further penalty
for corruption of a minor. In fashioning the judgment of sentence, the trial
court applied the mandatory minimum term of ten years imprisonment for
aggravated indecent assault of a child under the version of 42 Pa.C.S. §
9718(a)(3) that became effective on January 1, 2007.2 Appellant failed to ____________________________________________
2 Prior to the effective date of the 2007 revisions, the mandatory minimum sentence for aggravated indecent assault of a child was five years imprisonment. That version of the statute stated:
§ 9718. Sentences for offenses against infant persons (a) Mandatory sentence.—
(1) A person convicted of the following offenses when the victim is under 16 years of age shall be sentenced to a mandatory term of imprisonment as follows:
.... (Footnote Continued Next Page)
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file a direct appeal; however, following a petition for post-conviction relief,
the trial court reinstated his appellate rights nunc pro tunc.
During the prior direct appeal, Appellant raised issues that challenged
(1) the trial court’s evidentiary decisions; (2) the weight and sufficiency of
the evidence; (3) the court’s refusal to grant a mistrial; and (4) the
discretionary aspect of sentencing. After addressing the merits of
Appellant’s three substantive issues, we affirmed the three convictions but
vacated the judgment of sentence because it was unclear from the certified
record whether Appellant committed the aggravated indecent assault of a
child before or after the effective date of the 2007 amendments to the _______________________ (Footnote Continued)
(3) A person convicted of the following offenses shall be sentenced to a mandatory term of imprisonment as follows:
18 Pa.C.S. § 3121(c) and (d)--not less than five years.
18 Pa.C.S. § 3125(a)(7)--not less than two and one-half years.
18 Pa.C.S. § 3125(b)--not less than five years.
42 Pa.C.S. § 9718(a) (effective prior to January 1, 2007). As discussed in detail in the body of this memorandum, we highlight that the pre-2007 version of this mandatory minimum sentencing statute did not include the problematic subsection entitled “Proof at sentencing,” which Pennsylvania court’s have found to be unconditional under Alleyne v. United States, __ U.S.__, 133 S.Ct. 2151, 2163 (2013). See Commonwealth v. Hopkins, No. 98 MAP 2013 (Pa. filed June 15, 2015); Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc).
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mandatory minimum provision.3 As we explained in our prior memorandum
decision, if the assaults occurred prior to January 1, 2007, “the imposition of
the ten-year, rather than five–year mandatory minimum, [would] have
resulted in an improper application of the terms of § 9718[,]” i.e., potential
violations of the ex post facto clauses in the United States Constitution and
Pennsylvania Constitution, respectively. Commonwealth v. Singleton, 75
A.3d 545 (Pa. Super. 2013) (unpublished memorandum at 8); see also U.S.
Const. Article I, § 10, Pa. Const. Article I, § 17.
On remand, the trial court resentenced Appellant to consecutive terms
of five to ten years incarceration for aggravated indecent assault and
unlawful contact with a minor, respectively. As it relates to the issues that
are central to this case, the new sentence imposed the mandatory minimum
for aggravated indecent assault of a child that was effective prior to January
2007 and increased the term of imprisonment for unlawful contact with a
minor from three to six years to five to ten years. Once more, the trial court
declined to impose any further penalty for the corruption of a minor
conviction. As a result, the trial court essentially crafted a sentencing
scheme similar to that originally imposed on February 18, 2011. This timely
appeal followed the denial of Appellant’s post-sentence motions.
Appellant presents the following questions for our review: ____________________________________________
3 Accordingly, we did not confront Appellant’s discretionary sentencing claim.
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A. The trial court’s sentence was excessive under the circumstances and an abuse of discretion.
B. The trial court erred in precluding the admission of pictures and information regarding the relationship between the defendant and the complainant.
C. The evidence was insufficient and against the weight of the evidence where the complainant’s testimony was incredible and did not make out the elements of the crime where they did not prove that she was under the age of 12 when the incident occurred.
D. The trial court erred by not granting a mistrial where the complainant’s mother referenced an incident that occurred ten years ago between the complainant and the defendant and was not admissible at trial.
Appellant’s brief at 5.
At the outset, we observe that, with the exception of Appellant’s first
issue, this Court confronted the merits of Appellant’s issues during the
previous appeal and rejected the identical assertions based upon the trial
court’s comprehensive and sound Rule 1925(a) opinion. See Singleton,
supra (unpublished memorandum at 4-7). Appellant did not seek an
allowance of appeal from our decision to affirm the underlying convictions.
Accordingly, that aspect of our disposition is final, and Appellant cannot
revive these arguments at this juncture. See Commonwealth v. Mathis,
463 A.2d 1167, 1169 (Pa.Super. 1983) (where defendant asserts trial court
errors in appeal following remand for resentencing, “Any such alleged errors
have either been resolved against appellant in his first appeal before this
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court, or have been waived by his failure to present them in his first
appeal.”). Thus, we do not address the merits of these claims.
Next, before we review Appellant’s remaining argument challenging
the discretionary aspects of the judgment of sentence, we first must
determine whether the trial court’s imposition of the mandatory minimum
sentence of five years imprisonment pursuant to the pre-2007 version of §
9718(a)(3) created an illegal sentence in light of our Supreme Court’s recent
pronouncement in Commonwealth v. Hopkins, No. 98 MAP 2013 (Pa. filed
June 15, 2015) and this Court’s holdings in Commonwealth v. Newman,
99 A.3d 86 (Pa.Super. 2014) (en banc), and its progeny. The application of
a mandatory minimum sentencing statute implicates the legality of
sentence, which this Court may address sua sponte. Commonwealth v.
Watley, 81 A.3d 108, 118 (Pa.Super. 2013) (en banc).
A brief review of the salient cases is warranted. In Newman, this
Court struck down the mandatory minimum sentence outlined in 42 Pa.C.S.
§ 9712.1 concerning drug offenses committed with firearms because
subsection (c) of that provision violated the United States Supreme Court’s
holding in Alleyne v. United States, __ U.S.__, 1333 S.Ct. 2151, 2163
(2013), which requires that “facts that increase mandatory minimum
sentences must be submitted to the jury” and proven beyond a reasonable
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doubt.4 The Newman Court reasoned that, since the constitutionally infirm
subsection relating to burden of proof was “essentially and inseparably
connected” to subsection (a), which identified the triggering facts, the entire
statute had to be struck down as unconstitutional and could not be applied
absent future legislative guidance. Newman, supra at 101-102.
4 Specifically, § 9712.1 provides:
(a) Mandatory sentence.--Any person who is convicted of a violation of section 13(a)(30) of the act of April 14, 1972 (P.L. 233, No. 64), [FN1] known as The Controlled Substance, Drug, Device and Cosmetic Act, when at the time of the offense the person or the person's accomplice is in physical possession or control of a firearm, whether visible, concealed about the person or the person's accomplice or within the actor's or accomplice's reach or in close proximity to the controlled substance, shall likewise be sentenced to a minimum sentence of at least five years of total confinement.
....
(c) Proof at sentencing.— Provisions of this section shall not be an element of the crime, and notice thereof 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 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. § 9712.1 (a) and (c) (emphasis added).
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Subsequently, in Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super
2014), which concerned the mandatory minimum sentencing provisions of
42 Pa.C.S §§ 9712 and 9713, this Court held that, since Newman
determined that the offending provisions were not severable, the trial court’s
use of a special verdict to allow a jury to determine the factual predicates for
the application of mandatory minimum sentences by the beyond a
reasonable doubt standard of proof did not cure the unconstitutionality of
the mandatory minimum sentencing statutes. We explained, “Our decision
in Newman . . . holds that the unconstitutional provisions of § 9712(c) and
§ 9713(c) are not severable but ‘essentially and inseparably connected’ and
that the statutes are therefore unconstitutional as a whole.” Id. at 811-812.
Our Supreme Court recently reaffirmed this severability analysis, at least as
it relates to 18 Pa.C.S. § 6317(a), which imposes a mandatory minimum
sentence for delivery or possession with intent to deliver within 1000 feet of
a school. See Commonwealth v. Hopkins, 2015 WL 3949099 (Pa. 2015).
As it relates to the specific mandatory minimum statute implicated in
the case at bar, this Court concluded in Commonwealth v. Wolfe, 106
A.3d 800 (Pa.Super. 2014), that the current version of § 9718(c) aligned
with the constitutionally infirm proof-at-sentencing provisions that allowed
sentencing courts to determine the applicability of the various mandatory
minimum sentencing statutes by the preponderance of the evidence
standard in violation of Alleyne. Thus, consistent with the constitutionality
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and severability analyses proffered in Newman, the Wolfe Court struck
down § 9718 in its entirety as facially unconstitutional.
In reaching this conclusion, we first highlighted that the current
version of § 9718 included the following constitutionally infirm provision
regarding the burden of proof used to determine whether the mandatory
minimum was applicable:
(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 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. § 9718(c) (emphasis added). Thereafter, we observed that this
basic format appeared in Newman insofar as both provisions identified a
fact that triggered the imposition of a mandatory minimum sentence and
“state[d] that this fact shall be found by the trial court by a preponderance
of the evidence at sentencing.” Wolfe, supra at 803. Thus, we resolved,
“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.” Id. at 806. As referenced supra, our Supreme Court
recently determined that an indistinguishable proof-at-sentence provision in
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18 § Pa.C.S. § 6317(b) was not severable from the remaining portions of the
statute. See Hopkins, supra (slip opinion at 23-24).
However, notwithstanding our Supreme Court’s holding in Hopkins
relating to § 6317(b) and the Wolfe Court’s express application of the
Newman rationale to 42 Pa.C.S. § 9718(c), we do not find that the trial
court’s imposition of the five-year mandatory minimum sentence under the
pre-2007 version of § 9718 created an illegal sentence. Stated simply,
despite our Supreme Court’s proposition that the legislature would not have
enacted this type of legislation absent the offending proof-at-sentencing
provisions, the pre-2007 version of § 9718 did not include the offending
proviso. That is to say, the mandatory sentencing statute that was applied
herein is not facially unconstitutional in light of Alleyne because it does not
direct that (1) the provisions of this section shall not be an element of the
crime; (2) notice shall not be required prior to conviction; or (3) the court
shall determine by a preponderance of the evidence whether this section is
applicable.
Moreover, the fact that triggered the imposition of the mandatory
minimum sentence herein, the victim’s age, was an element of the
underlying crime of aggravated indecent assault of a child. See 18 Pa.C.S. §
3125(b) (“A person commits aggravated indecent assault of a child when the
person violates subsection (a)(1), (2), (3), (4), (5) or (6) and the
complainant is less than 13 years of age.”). Therefore, in order to convict
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Appellant of that offense, the jury was required to find beyond a reasonable
doubt that the victim was less than 13 years old. Instantly, the victim
testified that she was twelve years old when the incidents occurred. Thus,
by convicting Appellant of aggravated indecent assault of a child pursuant to
§ 3125(b), the jury in the case at bar determined the triggering element
under § 9718(a) beyond a reasonable doubt.
Employing parallel reasoning in Commonwealth v. Matteson, 96
A.3d 1064 (Pa.Super. 2014), which preceded Newman, this Court upheld a
trial court’s imposition of the ten-year mandatory minimum sentence under
the current version of § 9718 despite the existence of the unconstitutional
provision regarding proof of sentencing. Essentially, we held that, since the
jury determined the victim’s age beyond a reasonable doubt in convicting
the defendant of aggravated indecent assault of a child pursuant to 3125(b),
the imposition of the mandatory minimum under § 9718 did not run afoul of
Alleyne. Id. at 1066-1067. While we subsequently rejected this rationale
based upon the Newman Court’s severability analysis, Matteson remains
particularly instructive in the limited scenario where, as here, a mandatory
minimum sentence is imposed pursuant to a version of a statute that does
not include the constitutionally infirm subsection regarding proof at
sentencing.
As the pre-2007 version of § 9718 did not include the constitutionally
infirm subsection that directed the trial court to determine the triggering fact
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by the preponderance of the evidence standard of proof, it was not facially
unconstitutional. Accordingly, the severability analysis employed in
Hopkins and Newman is inapt in the case at bar. Furthermore, the jury
was instructed on the victim’s age as an element of the offense, and thus, it
determined beyond a reasonable doubt the triggering element that the
victim was less than sixteen years old. We therefore find that, under these
facts, the imposition of the mandatory minimum sentence of five years
imprisonment pursuant to the pre-2007 version of the statute did not violate
the High Court’s holding in Alleyne.
Next, we address the portion of Appellant’s argument challenging the
discretionary aspects of the judgment of sentence imposed for unlawful
contact, and for the following reasons, we find that no relief is due. Before
we reach the merits of a discretionary sentencing issue, we must ascertain
whether (1) a timely appeal was filed from the judgment of sentence; (2)
the issue was preserved during the trial court proceedings; (3) the appellant
complied with Pa.R.A.P. 2119(f); and (4) the Rule 2119(f) statement reveals
a substantial question that the sentence was not appropriate under the
sentencing code. Commonwealth v. Lebarre, 961 A.2d 176, 178
(Pa.Super. 2008).
Herein, Appellant’s notice of appeal was filed timely. Likewise,
Appellant raised his sentencing issue in a post-sentence motion and leveled
the challenge in his Rule 1925(b) statement. Additionally, Appellant
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included in his brief a concise statement of reasons for allowance of appeal
pursuant to Pa.R.A.P. 2119(f). Accordingly, we must determine whether
Appellant’s sentencing issue raises a substantial question. “A substantial
question exists only when the appellant advances a colorable argument that
the sentencing judge's actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Commonwealth v. Buterbaugh,
91 A.3d 1247 (Pa.Super. 2014) (en banc) (quoting Commonwealth v.
Glass, 50 A.3d 720, 727 (Pa.Super. 2012)).
Appellant asserts that the judgment of sentence was manifestly
excessive and unreasonable. Specifically, he argues that the trial court
erred in failing to explain its reasons for increasing its penalty for unlawful
contact with a minor from three to six years imprisonment to five to ten
years imprisonment and, to a much lesser degree, for imposing the two
sentences consecutively. In Commonwealth v. Treadway, 104 A.3d 597,
599 (Pa.Super. 2014) (citation omitted), we reiterated, “Generally,
Pennsylvania law affords the sentencing court discretion to impose its
sentence concurrently or consecutively to other sentences being imposed at
the same time or to sentences already imposed.” We further explained,
“[a]ny challenge to the exercise of this discretion ordinarily does not raise a
substantial question.” Id. (citations omitted). Essentially, “[t]he key to
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resolving the preliminary substantial question inquiry is whether the decision
to sentence consecutively raises the aggregate sentence to, what appears
upon its face to be, an excessive level in light of the criminal conduct at
issue in the case.” Id. (quoting Commonwealth v. Mastromarino, 2 A.3d
581, 587 (Pa.Super. 2010)).
Instantly, Appellant’s contention is not simply a bare allegation of
excessiveness based upon the consecutively imposed sentences. While
Appellant references that component of the judgment of sentence, he chiefly
assails the trial court for increasing the penalty for unlawful contact of a
minor, failing to explain its reasons for the increase, and considering the
seriousness of the sex offenses over the remaining sentencing factors.
Thus, we find Appellant’s claims raise a substantial question that the
sentence was not appropriate under the sentencing code. Commonwealth
v. Raven, 97 A.3d 1244, 1253 (Pa.Super. 2014) (quoting Commonwealth
v. Mouzon, 812 A.2d 617, 627 (2002) (“excessiveness claim raises a
substantial question when [it] ‘sufficiently articulates the manner in which
the sentence violates either a specific provision of the sentencing scheme set
forth in the Sentencing Code or a particular fundamental norm underlying
the sentencing process.’”)). Accordingly, we address the merits of
Appellant’s argument.
Our standard of review for sentencing claims is well settled.
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Sentencing is a matter vested within the discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. Commonwealth v. Johnson, 967 A.2d 1001 (Pa.Super. 2009). An abuse of discretion requires the trial court to have acted with manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous. Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957 (2007).
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010).
In Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007), our Supreme
Court observed that appellate review of the discretionary aspects of a
sentence is outlined in 42 Pa.C.S. § 9781(c) and (d). As it relates to the
assertion Appellant levels herein, § 9781(c) provides that a reviewing court
may vacate a sentence if it finds, “the sentencing court sentenced outside
the sentencing guidelines and the sentence is unreasonable.” 42 Pa.C.S.
§ 9781(c)(3). This Court subsequently defined “unreasonable” as follows:
The Walls Court noted that the term “unreasonable” generally means a decision that is either irrational or not guided by sound judgment. It held that a sentence can be defined as unreasonable either upon review of the four elements contained in § 9781(d) or if the sentencing court failed to take into account the factors outlined in 42 Pa.C.S. § 9721(b).1 __________________________________________________ 1 Section 9721(b) states in pertinent part:
[T]he court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. The court shall also consider any guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing[.] ___________________________________________________
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Commonwealth v. Daniel, 30 A.3d 494, 497 (Pa.Super. 2011).
Section 9781(d) directs that we assess the reasonableness of a
sentence based upon the following factors:
(d) Review of record.--In reviewing the record the appellate court shall have regard for:
(1) The nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
As noted, Appellant asserts that the trial court abused its discretion in
imposing an aggregate term of ten to twenty years imprisonment. Although
Appellant refers to the imposition of consecutive sentences as evidence of
excessiveness, he does not specifically invoke this aspect of the sentencing
scheme as an independent basis for relief or support his reference with legal
argument or citation to relevant case law. Thus, while we necessarily
consider the reasonableness of the aggregate term of ten to twenty years
imprisonment in light of the two convictions for sex offenses against
children, we do not separately address whether the imposition of
consecutive sentences in this case was de facto unreasonable.
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Appellant levels a two-part argument. The first aspect of the
argument implicates the trial court’s decision to impose a greater penalty for
unlawful contact with a minor. Appellant contends that the trial court lacked
a legal basis to increase the sentence for this offense on remand and that it
failed to place its reasons for the elevated sentence on the record. The
second component of Appellant’s excessiveness claim relates to the court’s
consideration of the seriousness of the offenses to the exclusion of other
mitigating factors. We address the issues seriatim.
First, as to the trial court’s decision to increase the penalty that it
initially imposed for unlawful contact of a minor from three to six to five to
ten years imprisonment, we observe that, after this Court vacated the prior
sentence and remanded for resentencing, the trial court had discretion to
structure its entire sentencing scheme anew. See Commonwealth v.
Goldhammer, 517 A.2d 1280, 1283–84 (Pa. 1986) (where appellate court
upsets trial court's overall sentencing scheme by vacating judgment of
sentence in multiple count appeal, it must remand for re-sentencing because
sentencing lies within sole discretion of trial court); see also
Commonwealth v. Wilson, 934 A.2d 1191, 1196 (Pa. 2007) (citing
Commonwealth v. Jones, 640 A.2d 914, 919–20 (Pa.Super. 1994) and
Commonwealth v. Losch, 535 A.2d 115 (Pa.Super. 1987) for the
proposition “that when a sentence is vacated and the case is remanded to
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the sentencing court for resentencing, the sentencing judge should start
afresh”).
Having upheld the trial court’s authority to structure its sentencing
scheme anew following remand, we next turn to the specific question
regarding the reasonableness of trial court’s decision to increase the
sentence imposed for unlawful conduct in order to account for its mandatory
decrease of the sentence imposed for aggravated indecent assault of a child.
For the following reasons, we reject Appellant’s assertion of error.
We confronted a similar issue in Commonwealth v. Vanderlin, 580
A.2d 820, 831 (Pa.Super. 1990), and concluded that the trial court had
discretion to manipulate multiple sentences to achieve the sentencing
scheme that it originally envisioned. In that case, a trial court recognized
that the judgment of sentence that it had announced in open court had
imposed an illegal sentence on one of several offenses stemming from an
attempted rape and sexual assault. Within four days of announcing that
sentence, the court sua sponte entered an order decreasing the illegal
penalty while increasing a consecutively-imposed sentence on another
conviction. Thus, the court achieved the essence of the originally intended
sentence. The defendant appealed the revised judgment of sentence, and
we affirmed.
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Significantly, in rejecting the defendant’s contentions of error, we
adopted the Commonwealth’s interpretation of our earlier holding in
Commonwealth v. Lezinsky, 400 A.2d 184 (Pa.Super. 1979), overruled on
different grounds, In Interest of Rodriguez, 537 A.2d 854 (Pa.Super.
1988) (en banc), regarding the well-ensconced principle “where we cannot
determine whether the declared invalidity of a conviction on one count may
have affected the lower court's sentencing on the remaining counts, we must
remand to give the lower court an opportunity to reconsider sentencing.”
Vanderlin, supra at 831. We found that the trial court would have
structured a different sentencing scheme at the outset had it known that one
of its sentences was illegal. The Court explained,
We agree with the Commonwealth that “the principle behind the Lezinsky decision is that if a trial court errs in its sentence for one count in a multi-count case, then all sentences for all counts will be vacated so that the court can re-structure its entire sentencing scheme. The Commonwealth posits that this is in recognition of the fact that probably the court would have sentenced the defendant differently had it known that one of its sentences was illegal.”
Id. at 831 (quotations, brackets, and citations omitted).
In rejecting Appellant’s post-sentence motions in the case at bar, the
trial court stated its reasoning for increasing the judgment of sentence for
the conviction for unlawful contact with a minor. Trial Court Opinion,
6/30/14, at 4-5. The court explained that, in light of the initial application of
the ten-year mandatory minimum for aggravated indecent assault of a child
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under § 9718(a), it elected to impose a mitigated range sentence of three to
six years imprisonment on the unlawful contact offense. Id. at 5. In
essence, the court believed that an aggregate sentence in excess of thirteen
to twenty-six years imprisonment would be inappropriate. Id. However,
after this Court vacated the previously imposed ten-to-twenty year sentence
for aggravated indecent assault and remanded for resentencing, the trial
court imposed the mandatory five to ten years confinement for that offense
and increased the consecutively imposed sentence for unlawful contact with
a minor from the mitigated range of three to six years imprisonment to the
standard range of five to ten years in order to reflect the original sentencing
scheme. Id.
As the trial court was free to restructure the entire sentencing scheme
upon remand, we cannot find that it abused its discretion in adjusting the
terms of imprisonment for the unlawful contact with a minor conviction so
that it could maintain the essence of the originally intended sentence. See
Goldhammer, supra; Wilson, supra at 1196. Thus, this aspect of
Appellant’s claim fails.
Finally, we address Appellant’s argument that the court disregarded
evidence that he adduced during sentencing regarding his remorse, family
support, and utilization of programs while incarcerated. Appellant asserts
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that his evidence warranted maintaining a mitigated range sentence for
unlawful contact with a minor. Again, we disagree.
Instantly, the trial court explained that its sentence of five to ten years
imprisonment for unlawful contact accounted for all of the Appellant’s
mitigating factors as well as the seriousness of the violation, Appellant’s
rehabilitative needs, and the need to protect the community under 42
Pa.C.S. § 9721(b). See N.T., 9/20/13, at 28-30; Trial Court Opinion,
6/30/14, at 5-6. As the trial court considered the relevant factors prior to
imposing the standard-range sentence for unlawful contact, Appellant’s
challenge to the discretionary aspect of that sentence fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/19/2015
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