Commonwealth v. Howe

• Citation: 2004 PA Super 19,842 A.2d 436
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Norman HOWE, Appellant.
• Decision Date: 26 January 2004
• Court: Superior Court of Pennsylvania

842 A.2d 436

2004 PA Super 19

COMMONWEALTH of Pennsylvania, Appellee, v. Norman HOWE, Appellant.

Superior Court of Pennsylvania.

Submitted January 6, 2003.

Filed January 26, 2004.

Jeanne Trivellini, Reading, for appellant.

Alisa R. Hobart, Asst. Dist. Atty., Reading, for Com., appellee.

BEFORE: DEL SOLE, P.J., FORD ELLIOTT and POPOVICH, JJ.

OPINION BY POPOVICH, J.:

¶ 1 These appeals stem from the judgments of sentence entered on June 6, 2002, following Appellant Norman Howe's pleas of guilty to aggravated indecent assault (18 Pa.C.S.A. § 3125(7)) at Criminal Action No. 1339/01 and to indecent assault (18 Pa.C.S.A. § 3126(a)(6)) at Criminal Action No. 1796/01 in the Court of Common Pleas, Berks County. Appellant asserts various challenges to the constitutionality of 42 Pa.C.S.A. §§ 9791-9799.7 ("Megan's Law II" or "the Act"),¹ which were applied to his sentences.

¶ 2 At Criminal Action No. 1339/01, the Commonwealth charged Appellant with two counts of rape, two counts of involuntary deviate sexual intercourse, two counts of aggravated indecent assault, two counts of indecent assault, two counts of indecent exposure, two counts of endangering the welfare of children, and two counts of corruption of minors. These charges stemmed from events on several different occasions over the course of eleven years in which Appellant engaged in sexual contact with a juvenile female. The sexual contact began as removing the juvenile's clothes and fondling her vagina with his hands and progressed to digital penetration of her vagina. The Commonwealth filed the criminal complaint for the charges at No. 1339/01 on February 14, 2001, and filed the bill of information March 28, 2001.

¶ 3 At Criminal Action No. 1796/01, the Commonwealth charged Appellant with simple assault, aggravated indecent assault, indecent assault, endangering the welfare of children, and corruption of minors. These charges stem from events between August 1, 1992 and June 1, 1995, in which Appellant engaged in sexual contact with a juvenile male. The contact included fondling of the juvenile's penis and testicles. The Commonwealth filed the criminal complaint for the charges at No. 1796/01 on February 8, 2001, and filed the bill of information on April 27, 2001.

¶ 4 On March 29, 2001, the Commonwealth filed a motion to consolidate the two criminal actions. The trial court granted the motion.

¶ 5 On August 17, 2001, Appellant entered a negotiated plea of guilty to one count of aggravated indecent assault at No. 1339/01 and to one count of indecent assault at No. 1796/01. The plea agreement called for imprisonment of two and one-half to ten years at No. 1339/01 and for consecutive probation of five years at No. 1796/01. Prior to sentencing, on December 21, 2001, Appellant filed a motion to withdraw the guilty pleas and a motion for a mental health evaluation. The trial court granted the motion for a mental health evaluation and scheduled a hearing on the motion to withdraw the guilty pleas. On March 18, 2002, Appellant withdrew the motion to withdraw the guilty pleas. On March 21, 2002, Appellant filed a written motion for extraordinary relief challenging the constitutionality of Pennsylvania's Megan's Law II and requesting other relief. On June 6, 2002, the trial court denied the motion for extraordinary relief. The court then sentenced Appellant to the terms of the negotiated plea agreement. Additionally, the trial court found Appellant to be a sexually violent predator and subjected Appellant to the provisions of Megan's Law II. On June 11, 2002, Appellant filed a motion for reconsideration, which the trial court denied. On June 21, 2002, Appellant timely appealed. On July 19, 2002, this Court granted Appellant's motion to consolidate these two cases on appeal.

¶ 6 Appellant presents the following question for our review:

Did not the trial court err in denying Appellant's motion for extraordinary relief, challenging the constitutionality of 42 Pa.C.S.A. § 9791, et seq., Pennsylvania's Megan's Law?

Appellant's brief, at 4.

¶ 7 Prior to addressing Appellant's challenge to Megan's Law II, we write to note our displeasure with Appellant's written motion for extraordinary relief. The proper course for Appellant to challenge Megan's Law II would have been to raise his challenges in a post-sentence motion pursuant to Pa.R.Crim.P. 720. His attempt to have the trial court review a challenge to Megan's Law II via a motion for extraordinary relief was misplaced and clearly disallowed by the Rules of Criminal Procedure.

¶ 8 Rule 704 of the Pennsylvania Rules of Criminal Procedure provides as follows:

(B) Oral Motion for Extraordinary Relief.

(1) Under extraordinary circumstances, when the interests of justice require, the trial judge may, before sentencing, hear an oral motion in arrest of judgment, for a judgment of acquittal, or for a new trial.

(2) The judge shall decide a motion for extraordinary relief before imposing sentence, and shall not delay the sentencing proceeding in order to decide it.

(3) A motion for extraordinary relief shall have no effect on the preservation or waiver of issues for post-sentence consideration or appeal.

Pa.R.Crim.P. 704(B) (emphasis added). The Comment to Rule 704 provides further guidance on when a motion for extraordinary relief is appropriate:

Under paragraph (B), when there has been an error in the proceedings that would clearly result in the judge's granting relief post-sentence, the judge should grant a motion for extraordinary relief before sentencing occurs. Although trial errors may be serious and the issues addressing those errors meritorious, this rule is intended to allow the trial judge the opportunity to address only those errors so manifest that immediate relief is essential. It would be appropriate for counsel to move for extraordinary relief, for example, when there has been a change in case law, or, in a multiple count case, when the judge would probably grant a motion in arrest of judgment on some of the counts post-sentence. Although these examples are not all-inclusive, they illustrate the basic purpose of the rule: when there has been an egregious error in the proceedings, the interests of justice are best served by deciding that issue before sentence is imposed. Because the relief provided by this section is extraordinary, boilerplate motions for extraordinary relief should be summarily denied.

* * *

Paragraph (B)(3) is intended to make it clear that a motion for extraordinary relief is neither necessary nor sufficient to preserve an issue for appeal. The failure to make a motion for extraordinary relief, or the failure to raise a particular issue in such a motion, does not constitute a waiver of any issue. Conversely, the making of a motion for extraordinary relief does not, of itself, preserve any issue raised in the motion, nor does the judge's denial of the motion preserve any issue.

Id. Comment (emphasis added).

¶ 9 The plain terms of Rule 704(B) does not permit the filing of a written motion for extraordinary relief prior to sentencing. Additionally, Rule 704(B) states that such motions only be made in exceptional circumstances. As we admonished in procedurally similar cases, "this Rule was not intended to provide a substitute vehicle for convicted defendant to raise matters which could otherwise be raised via post sentence motions." Commonwealth v. Celestin, 825 A.2d 670, 674 (Pa.Super.2003); Commonwealth v. Fisher, 764 A.2d 82, 85 (Pa.Super.2000), appeal denied, 566 Pa. 658, 782 A.2d 542 (2001). However, Appellant filed a motion for reconsideration of the trial court's denial of his motion for extraordinary relief. Appellant filed this motion after his sentence. Accordingly, Appellant preserved his constitutional challenge via this timely post-sentence motion. See Commonwealth v. Grekis, 411 Pa.Super. 513, 601 A.2d 1284 (1992) (Constitutional issues, even sentencing issues based upon the constitution, are waived if not properly raised in the trial court.); Commonwealth v. McConnell, 470 Pa. 312, 368 A.2d 646 (1977) (Claims that a life sentence was unconstitutional on equal protection and due process grounds were waived.).

¶ 10 When an appellant challenges the constitutionality of a statute, the appellant presents this Court with a question of law. See Commonwealth v. Atwell, 785 A.2d 123, 125 (Pa.Super.2001) (citation omitted). Our consideration of questions of law is plenary. See id., 785 A.2d at 125 (citation omitted). A statute is presumed to be constitutional and will not be declared unconstitutional unless it clearly, palpably, and plainly violates the constitution. See Commonwealth v. Etheredge, 794 A.2d 391, 396 (Pa.Super.2002) (citations omitted). Thus, the party challenging the constitutionality of a statute has a heavy burden of persuasion. See id., 794 A.2d at 396 (citation omitted). ¶ 11 Appellant asserts that the trial court erred in failing to declare Megan's Law II unconstitutional. Appellant argues that Megan's Law II violated the Due Process Clauses of the United States Constitution and the Pennsylvania Constitution by subjecting a defendant to a separate trial without a jury that was governed by a standard of proof less than "beyond a reasonable doubt," i.e., clear and convincing proof, whose end result could be certain enhancements in the sentence, specifically, counseling program for life, registration and reporting to the Pennsylvania State Police for life, and public notification, with the penalty for violation of these enhancements resulting in life imprisonment. See Appellant's brief, at 9-10. Appellant argues that the terms "sexual violent predator," "personality disorder," "mental abnormality," and "likely to engage in" are vague, undefined, and unknowable. See id. at 10-11. Appellant also argues that Megan's Law II violated his constitutional right against self-incrimination by requiring a defendant to give evidence against himself before the...