Commonwealth v. Coleman, 2004 PA Super 226 (PA 6/15/2004)

• Decision Date: 15 June 2004
• Docket Number: No. 3373 EDA 2002.,3373 EDA 2002.
• Citation: 2004 PA Super 226
• Parties: COMMONWEALTH OF PENNSYLVANIA, Appellee v. FLOYD COLEMAN, Appellant.
• Court: Pennsylvania Supreme Court

Page 1

2004 PA Super 226

COMMONWEALTH OF PENNSYLVANIA, Appellee v. FLOYD COLEMAN, Appellant.

No. 3373 EDA 2002.

Superior Court of Pennsylvania.

Filed: June 15, 2004.

Appeal from the Judgment of Sentence September 26, 2002, in the Court of Common Pleas of Philadelphia County, Criminal Division at No. 0107-1401.

BEFORE: BENDER, BECK and KELLY, JJ.

OPINION BY BENDER, J.

¶ 1 This is an appeal from a judgment of sentence imposed upon Appellant after he was convicted of sexual assault in a jury trial. Appellant raises essentially two issues: whether the court erred in considering the Commonwealth's motion to reconsider sentence and whether the court erred in treating Appellant's court martial as a prior conviction for purposes of determining the prior record score. We vacate and remand.

¶ 2 Appellant was arrested and charged with involuntary deviate sexual intercourse, attempted rape and sexual assault after the filing of a complaint by the sixteen-year-old male victim who had resided with Appellant. After a jury trial conducted from March 19-22, 2002, Appellant was convicted of sexual assault and acquitted of the other charges. On May 20, 2002, Appellant was sentenced to thirty to sixty months' imprisonment to be served in a county facility, with eligibility for work release, followed by five years reporting probation. At Appellant's request, the sentence was reduced to two-and-a-half to five years less a day so that Appellant would be eligible to serve the time in a county facility.

¶ 3 On May 28, 2002, the Commonwealth filed a motion for reconsideration of sentence asserting that the sentence imposed was too lenient and that the sentence was incorrect since the guidelines were miscalculated by failing to take into consideration a court martial that had led to Appellant being dishonorably discharged from the Army. In response to the Commonwealth's motion, a hearing was scheduled for June 20, 2002. Prior to that hearing, on June 19, 2002, Appellant filed a notice of appeal from the judgment of sentence. That appeal was docketed at 1977 EDA 2002.

¶ 4 The hearing on the Commonwealth's motion to reconsider sentence, scheduled for June 20, 2002, was not held until June 24, 2002, and was held notwithstanding Appellant's filing of an appeal. At the hearing, the Commonwealth introduced documentation from the Department of the Army which revealed that Appellant had been court martialed on a charge specifying two instances of indecent acts. Appellant was found guilty on both specifications which resulted in a demotion in grade and a bad conduct discharge. The Commonwealth argued that Appellant's military conviction for "indecent acts" must be treated as a conviction for indecent assault under Pennsylvania law. In response to the introduction of these documents, Appellant's sentence was vacated. Sentence was re-imposed on September 26, 2002. At that time, Appellant was sentenced to four to eight years' incarceration in a state correctional institution followed by two years' reporting probation. This sentence reflected a change in the prior record score of 0 to 1, a change that was made after the court agreed that Appellant's court martial conviction must be equated to convictions for indecent assault and counted in the prior record score. The present appeal was filed on October 24, 2002. On December 17, 2002, this Court quashed Appellant's appeal at 1977 EDA 2002 as duplicative of the subsequent appeal, the appeal herein.

¶ 5 Appellant first contends that the court erred in vacating the original sentence on June 24, 2002, as the court lacked jurisdiction to do so. We disagree. Appellant contends that the trial court lost jurisdiction over the sentence, and the power to impose a greater sentence upon reconsideration, as it did not vacate Appellant's sentence within thirty-days of imposition. In making this argument, Appellant refers to older case law, i.e., Commonwealth v. Feagley, 538 A.2d 895 (Pa. Super. 1988), that required a court to vacate a judgment of sentence within 30 days to maintain jurisdiction of the sentence even if a motion to reconsider the sentence had been filed and was still pending. However, the rules of criminal procedure have since been revised to delay the time for taking an appeal from a judgment of sentence when post-sentence motions have been filed by either party. See Pa.R.Crim.P. 720-21. Under the current rules, the period for taking an appeal is within thirty days of the disposition of postsentence motions as long as the post-sentence motion was filed within ten days of the imposition of sentence. Commonwealth v. Bilger, 803 A.2d 199 (Pa. Super. 2002). Here, the Commonwealth filed its motion for reconsideration of sentence within ten days of imposition of sentence. Thus, the court did not lose jurisdiction over the sentence within thirty days and the court retained jurisdiction to impose a new sentence upon reconsideration.

¶ 6 Appellant next contends that the court erred in treating his military court martial as a conviction for purposes of calculating his prior record score under the sentencing guidelines. With this contention, we agree.

¶ 7 Under the sentencing guidelines, "an out-of-state, federal or foreign conviction or adjudication of delinquency is scored as a conviction for the current equivalent Pennsylvania offense." 204 Pa. Code § 303.8(f)(1). The Sentencing Guidelines do not discuss military court martials. However, the Sentencing Guidelines Implementation Manual (Fifth Ed. 1997) (hereinafter "Manual") states:

Under the Uniform Code of Military Justice, a court martial for a criminal offense is a federal conviction and as such should be included in the prior record score.

Pennsylvania Commission on Sentencing, Sentencing Guidelines Implementation Manual 141 (5^th ed. 1997). The stance taken in the Manual regarding court martials is supported, to a degree, by caselaw. Our Supreme Court, in Commonwealth v. Smith, 598 A.2d 268 (Pa. 1991), considered whether court martial convictions under the Uniform Code of Military Justice (UCMJ) could be used for enforcement of the mandatory minimum sentencing provisions found at 42 Pa.C.S. § 9714, relating to repeat crime-of-violence offenders. The offense in question there was robbery and the appellant had a prior court martial conviction for robbery. The Court concluded that, for § 9714 purposes, the court martial convictions did constitute a prior conviction for a crime-of-violence. The Court stated:

It would be unreasonable to conclude that a military conviction for the offense of armed robbery which is equivalent to our crime of robbery would be exempt from use as a prior conviction for purposes of a recidivist statute.

Smith, 598 A.2d at 272. Consequently, based upon this authority, we hold that military court martial convictions constitute a "federal conviction" pursuant to 204 Pa. Code § 303.8(f)(1) for purposes of determining the prior record score to the extent the conviction is for conduct similarly illegal under Pennsylvania law.¹ Having reached the above conclusion, the greater question in the present case is whether or not Appellant's court martial was for conduct that would constitute an equivalent criminal offense under Pennsylvania law.

¶ 8 Determining what Appellant was convicted of in his court martial is considerably more difficult than in Smith. There, Smith was charged under 10 U.S.C. § 922, Robbery, which is defined in the UCMJ as:

Any person subject to this chapter who with intent to steal takes anything of value from the person or in the presence of another, against his will, by means of force or violence or fear of immediate or future injury to his person or property or to the person or property of a relative or member of his family or of anyone in his company at the time of the robbery, is guilty of robbery and shall be punished as a court-martial may direct.

The specificity of the offense in the UCMJ allowed easy comparison of the elements of the offense under both the UCMJ and the Crimes Code in Pennsylvania. Unfortunately, the same cannot be said for the present case. Notably, the UCMJ, while containing a wide variety of criminal offenses, is not as comprehensive as our own Crimes Code.² Thus, while the UCMJ covers many prominent offenses, a strong possibility exists that there will not be a readily comparable offense in our own Crimes Code. Also, the UCMJ covers many "offenses" that are essentially unique to military service.³ As such, a conviction in a military court might be for conduct that is wholly foreign to the civilian world.

¶ 9 Adding possibly even greater uncertainty to the inquiry, there is also a "catchall" provision entitled "General article." This article provides:

§ 934. Art. 134. General article

Though not specifically mentioned in this chapter [10 USCS §§ 801 et seq.], all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter [10 USCS §§ 801 et seq.] may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

10 U.S.C § 934. This last article is highly relevant to the within case because it is the article that Appellant was charged with and convicted upon. ¶ 10 Researching cases discussing court martials under this article reveals that they can be founded upon conduct that would be deemed criminal in most jurisdictions,⁴ but can also encompass conduct that would not be deemed criminal in most jurisdictions. For instance, in United States v. Mayfield, 21 M.J. 418 (1986), the defendant was charged with fraternization. The specification alleged:

that [defendant] did, on or about 3 July 1981, 10 July 1981 and 11 July 1981 at Fort Lee, Virginia, an installation...