Com. v. Brown

• Decision Date: 19 October 1999
• Citation: 741 A.2d 726
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Timothy Nathan BROWN, Appellant.
• Court: Pennsylvania Superior Court

741 A.2d 726

COMMONWEALTH of Pennsylvania, Appellee, v. Timothy Nathan BROWN, Appellant.

Superior Court of Pennsylvania.

Argued April 30, 1999.

Filed October 19, 1999.

Royce L. Morris, Harrisburg, for appellant.

Francis Chardo, Asst. Dist. Atty., Harrisburg, for the Com, appellee.

Before McEWEN, President Judge, and CAVANAUGH, DEL SOLE, JOHNSON, HUDOCK, EAKIN, JOYCE, MUSMANNO and ORIE MELVIN, JJ.

JOYCE, J.:

¶ 1 This matter is before the Court on Timothy Brown's (Appellant) appeal from the judgment of sentence, as made final by the denial of post-sentencing motions.¹ For the reasons set forth below, we vacate the judgment of sentence and remand for resentencing. Before reaching the merits of this appeal, we will recount the relevant facts and procedural history.

¶ 2 The charges in this case arise out of two incidents, one in which Appellant raped a seventy-four (74) year old woman and one in which he attempted to rape an officer posing as an elderly woman. On August 4, 1997, following a colloquy with the trial judge, Appellant pled guilty to rape,² criminal attempt rape,³ unlawful restraint⁴ and burglary.⁵ Prior to the entry of the plea, the Commonwealth notified Appellant of its intention to seek a mandatory sentence under 42 Pa.C.S.A. § 9714. On September 24, 1997, the trial court held a sentencing hearing. The trial judge found that Appellant had two predicate convictions under 42 Pa.C.S.A. § 9714.⁶ The trial court further found Appellant to be a "sexually violent predator" under 42 Pa.C.S.A. § 9794, relating to the designation of sexually violent predators. After consideration of the presentence investigation report and the report of the State Board to Assess Sexually Violent Predators, the trial court concluded that a sentence of twenty-five (25) to fifty (50) years' incarceration would not be sufficient to protect the public safety. The trial judge then sentenced Appellant to two consecutive life sentences without parole, with all other sentences to run concurrent.⁷ On October 6, 1997, Appellant timely filed post-sentencing motions, which included a motion to vacate and/or modify sentence. By order dated December 16, 1997, the trial court denied Appellant's post-sentencing motions.

¶ 3 On January 6, 1998, Appellant timely filed his notice of appeal. By order dated August 20, 1998, this Court remanded the matter and directed the trial court to place its reasons on the record for imposing two consecutive life sentences under 42 Pa.C.S.A. § 9714(a)(2). On September 30, 1998, the trial court filed its "Reasons Relied Upon For Consecutive Life Sentences" (hereinafter Reasons) with this Court. Thereafter, on October 30, 1998, this Court ordered that this case be heard en banc. This Court further directed that a supplemental brief be submitted in accordance with Pa.R.A.P. 2140. Appellant filed a substitute brief and the Commonwealth responded.⁸ This matter is now ripe for our consideration.

¶ 4 Appellant presents six issues for our review: (1) whether 42 Pa.C.S.A. § 9714 violates the ex post facto clause of the United States Constitution; (2) whether section 9714 is unconstitutionally vague; (3) whether the Commonwealth's burden of proving the existence of predicate offenses by a preponderance of the evidence when enforcing section 9714 violates the due process clause of the United States Constitution and Article 1, § 9 of the Pennsylvania Constitution; (4) whether section 9714 is unconstitutionally vague in failing to define the burden of proof necessary to determine what is "insufficient to protect public safety;" (5) whether the trial court abused its discretion in imposing two consecutive life sentences in excess of the twenty-five (25) to fifty (50) years contemplated by section 9714 when the court failed to place its reasons on the record; and (6) whether the provisions of the Registration of Sexual Offenders Act, 42 Pa. C.S.A. §§ 9791-9799.6 (the Act), violate an individual's right to due process of law by requiring him to rebut the statutory presumption that he is a sexually violent predator.

¶ 5 We begin by addressing Appellant's sixth and final contention, as we find it to be dispositive. Appellant argues that the section of the Act governing the registration of sexual offenders, commonly known as "Megan's Law" (hereinafter Megan's Law), which imposes the presumption that an individual who has been convicted of an "enumerated offense" is a "sexually violent predator" and requires an individual to rebut such presumption by clear and convincing evidence, violates the individual's right to due process of law. Appellant's Brief at 22-23. Appellant relies on this Court's decision in Commonwealth v. Halye, 719 A.2d 763 (Pa.Super.1998) (en banc), to support his position.

¶ 6 In Halye, this Court concluded that the due process clause of the federal constitution is violated by the provisions of the Act which require the offender to rebut a presumption and which do not impose upon the prosecution the burden of persuasion by clear and convincing evidence. Id. at 769. This Court struck as unconstitutional § 9794 of Title 42 and all remaining sections of the Act which refer to the designation of a "sexually violent predator." Id. Appellant maintains that based on Halye, his sentence is unconstitutional and should therefore be vacated.

¶ 7 The Commonwealth counters that Appellant has waived this claim. We disagree. Appellant first raised this issue in his "Motion For Extraordinary Relief Challenging the Constitutionality of the `Sexually Violent Predator' Provisions of Pennsylvania's Megan's Law, And To Bar A Second Prosecution For the Same Offense," filed August 13, 1997. Appellant next raised the issue in the court below in his Pa.R.A.P.1925(b) Statement, filed on January 14, 1998.⁹ In his original pro se brief to this Court, Appellant did not raise or brief this issue. However, after this Court directed the case to be argued en banc, the Court allowed Appellant to file a substitute brief. Appellant thereafter filed a "Substitute Brief" which included his challenge to Megan's Law. Appellant's Substitute Brief, in effect, replaced his original pro se brief. Appellant therefore has properly raised his Megan's Law claim in both the trial court and this Court. As such, the claim is preserved for appellate review.

¶ 8 After reviewing this issue, we find it to be meritorious. The Supreme Court of Pennsylvania recently definitively resolved this question and confirmed Halye in Williams and Gaffney, supra. We are thus constrained to vacate judgment of sentence and remand this matter for resentencing pursuant to Williams, Gaffney, and Halye, supra.

¶ 9 Notwithstanding our disposition of this case, we shall also address Appellant's remaining five issues. In light of our status as an intermediate appellate court, we cannot predict the future course of this matter, which may include further appellate review. Commonwealth v. Byrd, 409 Pa.Super. 611, 598 A.2d 1011, 1014 (1991). Consideration of the remainder of Appellant's issues is accordingly in order. Id.

¶ 10 Appellant's first four issues all concern 42 Pa.C.S.A. § 9714, which states in relevant part:

(a) Mandatory sentence.—

(2) Where the person had at the time of the commission of the current offense previously been convicted of two or more such crimes of violence arising from separate criminal transactions, the person shall be sentenced to a minimum sentence of at least 25 years total confinement, notwithstanding any other provision of this title or other statute to the contrary. Proof that the offender received notice of or otherwise knew or should have known of the penalties under this paragraph shall not be required. Upon conviction for a third or subsequent crime of violence the court may, if it determines that 25 years of total confinement is insufficient to protect the public safety, sentence the offender to life imprisonment without parole.

42 Pa.C.S.A. § 9714(a) (emphasis added).

¶ 11 Appellant first argues that section 9714¹⁰ violates the ex post facto clauses of the United States and Pennsylvania Constitutions. A law will be found to be constitutionally infirm on grounds that it is an ex post facto law only where one of the following is present:

1. The law makes an act criminal which was not criminal when done;

2. The law aggravates a crime [-] one which makes it greater than it was when committed;

3. The law changes a punishment, and makes it greater than it was when a punishable act was committed;

4. The law alters the rules of evidence and requires less or different testimony than the law required at the time the offense was committed in order to be convicted.

Commonwealth v. Grady, 337 Pa.Super. 174, 486 A.2d 962, 964 (1984) (emphasis added).

¶ 12 Appellant specifically claims that section 9714, as applied to him, is an ex post facto law because it includes convictions occurring before enactment of the present version of the statute. We disagree. Appellant committed the crimes on November 30, 1996 and December 8, 1996. The current version of the statute became effective prior to the commission of the offenses for which Appellant was sentenced on September 24, 1997. See Act of 1995, Oct. 11, P.L. 1058, No. 21 (Spec.Sess. No. 1), § 4, providing that the act is effective in 60 days. In cases such as this, where a version of a statute is enacted prior to a defendant being sentenced, this Court has rejected the argument that this constitutes an ex post facto law. See Commonwealth v. Scott, 345 Pa.Super. 86, 497 A.2d 656, 657 (1985) (holding that the statute imposing a life sentence for conviction of third-degree murder on anyone who had previously been convicted at any time of murder or manslaughter did not violate the ex post facto clause where the crime committed by defendant after the effective date was what brought defendant within the ambit of the statute, not the prior crime which was used for enhancement purposes). See also ...