Com. v. Merolla

• Decision Date: 28 September 2006
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Alfred F. MEROLLA, Appellee. Commonwealth of Pennsylvania, Appellee, v. Alfred F. Merolla, Appellant.
• Court: Pennsylvania Superior Court

909 A.2d 337

COMMONWEALTH of Pennsylvania, Appellant, v. Alfred F. MEROLLA, Appellee.

Commonwealth of Pennsylvania, Appellee, v. Alfred F. Merolla, Appellant.

Superior Court of Pennsylvania.

Argued April 5, 2006.

Filed September 28, 2006.

COPYRIGHT MATERIAL OMITTED

Elmer D. Christine, Asst. Dist. Atty., Stroudsberg, for Com.

George W. Westervelt, Jr., Stroudsberg, for Merolla.

BEFORE: STEVENS, GANTMAN and KELLY, JJ.

OPINION BY KELLY, J.:

¶ 1 The Commonwealth and Alfred F. Merolla appeal respectively from orders¹ entered August 9 and August 10, 2005 relating to Merolla's obligation to register as a sexually violent predator under the Pennsylvania Registration of Sexual Offenders Statute,² commonly known as "Megan's Law II." The August 9th order denies by operation of law the Commonwealth's post-sentence motion, while the August 10th order directs that upon his release, Merolla shall register with state police for life. The procedural posture of this matter requires us to decide, inter alia: (1) whether Pennsylvania Rule of Criminal Procedure 721 allows the Commonwealth to appeal the denial of its post-sentence motion by operation of law because the trial court did not rule on it within 120 days; and (2) whether guilty pleas to two separate counts of indecent assault,³ entered at the same time, constitute two separate convictions under Section § 9795.1(b)(1) of Megan's Law II. For the following reasons, we vacate both orders and remand.

¶ 2 Merolla's nolo contendere pleas to two counts of indecent assault and one count of statutory sexual assault⁴ stemmed from his attacks on three victims, each a girl under the age of sixteen. Two of the victims were sisters, D.V., eleven years old, and S.V., eight years old for whom, in 1995, Merolla was hired as a piano instructor. During the piano lessons, Merolla fondled and kissed them. Although the piano lessons were terminated, Merolla re-established contact with the family sometime between 1999 and 2001, offering a free place to live in exchange for their mother's taking care of his parents and cleaning the house. While the family resided with Merolla's parents, he touched the girls' breasts, buttocks, and vaginal areas. He also made sexual comments to both girls, including offers of money to have sex with him, and suggested that their encounters be videotaped to sell on the Internet. One of the girls claimed that Merolla forcibly attempted to have intercourse with her but was unsuccessful.⁵

¶ 3 The third victim, M.R., was the eight year old daughter of a family whom Merolla befriended in regard to the purchase of property. He offered to teach the child yoga and drawing, and M.R. complained that during some of his visits, Merolla touched her breasts, buttocks, and vaginal area, and that he rubbed his penis against her buttocks while both were fully clothed.

¶ 4 After his plea, the trial court ordered Merolla to be assessed by the Pennsylvania Sexual Offenders Assessment Board (Board) to determine whether he was an SVP under Megan's Law II. Dean Dickson, the member of the Board who made the evaluation, testified that Merolla should be assigned SVP status because he suffered from pedophilia and paraphilia which made him likely to engage in predatory, sexually violent offenses. The defense presented Dr. Robert Gordon, a psychologist who, after conducting objective testing concluded that Merolla should not be classified as an SVP despite his plea to sexual offenses. Finding Dickson's testimony less than credible, the trial court determined that Merolla was not an SVP, and sentenced him to 11½ to 23 months' imprisonment for the statutory sexual assault charge, with two consecutive sentences of 5 to 10 years' probation on each of the indecent assault charges, resulting in an aggregate probationary period of 10 to 20 years. The trial court also imposed the requirement that he register with state police for a period of ten years pursuant to Megan's Law II.

¶ 5 On March 4, 2005, the Commonwealth timely filed a post-sentence motion to modify the sentence, arguing that the court should give Merolla a longer period of incarceration, find him to be a sexually violent predator (SVP), and subject him to lifetime registration under Section 9795.1(b)(1).⁶ On August 9, 2005, 158 days after the Commonwealth filed its motion, the clerk of courts entered an order denying the motion by operation of law. On the following day, August 10th, the trial court nevertheless entered an order sua sponte increasing Merolla's term of registration with police to lifetime. Merolla appealed, raising the following issue for our review:

[DID] THE CLERK'S AUGUST 9, 2005 PA.R.CRIM.P. 720(D)(1)[⁷] ORDER [DEPRIVE] THE TRIAL COURT OF JURISDICTION TO ACT ON THE COMMONWEALTH'S MOTION TO MODIFY SENTENCE[?]

(Merolla's Brief at 4).⁸ Merolla asserts that the trial court's order of August 10, 2006 was entered beyond the 120 days allowed by Pennsylvania Rules of Criminal Procedure Rule 720(B)(3)(a). We agree.

¶ 6 Rule 721(C) provides that in cases where the defendant has not filed a post-sentence motion, if the trial court fails to decide a post-sentence motion filed by the Commonwealth within 120 days, "the motion shall be deemed denied by operation of law." Pa.R.Crim.P. 721(C)(2). Indeed, this Court has stated that a modification order filed beyond the 120-day period set forth by Rule 720 is a legal nullity. See Commonwealth v. Bentley, 831 A.2d 668, 670 (Pa.Super.2003); Commonwealth v. Santone, 757 A.2d 963, 966 (Pa.Super.2000), appeal denied, 564 Pa. 730, 766 A.2d 1247 (2001). In Bentley, more than 150 days after the appellant filed a motion to modify his sentence the trial court granted his request for a new trial. Bentley, supra at 668-69. This Court reversed the trial court's order and concluded that "the trial court's inability to render a ruling on [the appellant's] motion within the prescribed time period divested the court of jurisdiction to render a decision at a later date." Id. at 670. "The purpose of this rule is to promote the fair and prompt disposition of all issues relating to guilty pleas, trial, and sentence by consolidating all possible motions to be submitted for trial court review, and by setting reasonable but firm time limits within which the motion must be decided." Id. at 669 (quoting Pa.R.Crim.P. 720(B)(3), Comment) (emphasis in Bentley). In Santone, this Court held that under Rule 720 the trial court may not sua sponte extend the 120 day limit. See Santone, supra at 965.⁹

¶ 7 Here, on March 4, 2005, the Commonwealth filed a post-sentence motion. The 120th day thereafter was Saturday, July 2, 2005. Because Monday, July 4, 2005 was a holiday, the trial court had until July 5, 2005 to amend Merolla's sentence. See 1 Pa.C.S.A. § 1908. However, the court issued its order on August 10, 2005.¹⁰ Thus, the court's order was not filed within the 120-day time period prescribed by Rule 721(C)(2). Because the motion was properly denied by operation of law and the court could not extend the time limit for rendering decision, its subsequent modification order is a legal nullity. See Bentley, supra; Santone, supra. Thus, we vacate the court's August 10th order.

¶ 8 We now consider the Commonwealth's appeal from the order of August 9, 2005, denying its post-sentence motion. However, before considering the merits of the Commonwealth's appeal, we must determine whether it complies with the Rules of Criminal Procedure. Rule 1410, the predecessor to Rules 720 and 721 addressed post-sentence motion procedures as they apply to both defendants and the Commonwealth. When Rule 1410 was re-codified as Rule 720 in 1993, Rule 721 was created to clarify procedures for the Commonwealth's challenges to sentences.¹¹ Pa.R.Crim.P. 721, Comment. While Rule 720 includes a subsection that specifically provides a defendant thirty days to appeal from an "entry of the order denying the motion by operation of law in which the judge fails to decide the motion," Pa.R.Crim.P. 720(A)(2)(b), a parallel subsection is conspicuously absent from Rule 721. However, for reasons discussed below, we believe that Rule 721 does allow the Commonwealth to appeal the denial of a post-sentence motion by operation of law.

¶ 9 Rule 721(D)(1) directs the clerk of courts to notify the parties once the Commonwealth's motion for modification is denied by operation of law. Pa.R.Crim.P. 721(D)(1)(a), (b). "If the defendant has not filed a post-sentence motion, the Commonwealth's notice of appeal shall be filed within 30 days of the entry of the order disposing of the Commonwealth's motion pursuant to paragraph (C)(2)." Pa.R.Crim.P. 721(B)(2)(b)(ii). Paragraph (C)(2), in turn, directs the trial court to decide the Commonwealth's motion within 120 days, or else "the motion shall be deemed denied by operation of law." Pa.R.Crim.P. 721(C)(2). Thus, while Rule 721 does not have a parallel subsection to Rule 720(A)(2)(b), when read as a whole, by implication Rule 721 allows the Commonwealth thirty days to file an appeal. We note that a contrary finding would render unappealable the denial of a Commonwealth motion by operation of law, and we have discovered no relevant authority to support such a policy. Here, on August 9, 2005, pursuant to Rule 721(D)(1), the clerk of courts entered an order denying the Commonwealth's post-sentence motion by operation of law. Therefore, the Commonwealth had 30 days to file an appeal, and its August 11th appeal was timely. See Pa.R.Crim.P. 721(B)(2)(b)(ii). Accordingly, we consider the merits of the Commonwealth's claims.

¶ 10 On appeal, the Commonwealth presents the following issues for our review:

WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION AND/OR COMMITTED AN ERROR OF LAW

IN FAILING TO FIND [MEROLLA] A SEXUALLY VIOLENT PREDATOR[?]

WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION AND/ OR COMMITTED AN ERROR OF LAW IN FAILING TO FIND THAT [MEROLLA'S] CONVICTIONS MANDATE LIFETIME REGISTRATION PURSUANT TO...