Commonwealth v. Merced

• Docket Number: 231 MDA 2023,232 MDA 2023,J-S45004-23
• Decision Date: 22 January 2024
• Citation: 2024 PA Super 11
• Parties: COMMONWEALTH OF PENNSYLVANIA v. ANGEL LUIS MERCED Appellant COMMONWEALTH OF PENNSYLVANIA v. ANGEL MERCED Appellant
• Court: Pennsylvania Superior Court

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2024 PA Super 11

COMMONWEALTH OF PENNSYLVANIA v. ANGEL LUIS MERCED Appellant COMMONWEALTH OF PENNSYLVANIA v. ANGEL MERCED Appellant

Nos. 231 MDA 2023, 232 MDA 2023

J-S45004-23

Superior Court of Pennsylvania

January 22, 2024

Appeal from the Judgment of Sentence Entered September 6, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0005625-2019 CP-36-CR-0000845-2020

BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E ^[*]

OPINION

BOWES J.

Angel Luis Merced appeals the aggregate judgment of sentence of thirty-six to seventy-two years of imprisonment following his convictions for multiple counts of involuntary deviate sexual intercourse ("IDSI") and related sexual offenses. After review, we vacate the sentencing order and remand for resentencing.

We glean the following background from the certified record. At case number 5625 of 2019, Appellant was charged with numerous sex crimes pertaining to minor victims K.P., A.P., and S.P. According to the criminal information, the acts were alleged to have occurred between January 2007 and January 2019, though the testimony at trial bore out that the acts took place from 2007 through the summer of 2009. Counts five, six, and seven were for corruption of minors entailing a course of conduct, a felony of the third degree, in violation of 18 Pa.C.S. § 6301(a)(1)(ii). This provision first became effective on December 6, 2010, nearly four years after Appellant's conduct began and approximately a year after it ceased.

At case number 845 of 2020, Appellant faced numerous charges as to minor victim N.P. Count one was IDSI of a child, in violation of 18 Pa.C.S. § 3123(b), and count two was IDSI of a person less than sixteen years of age, in violation of § 3123(a)(7). Both related to the same act, wherein Appellant blindfolded N.P. and placed his penis into her mouth.

Following a consolidated jury trial, Appellant was found guilty of all charges. The trial court sentenced Appellant to imprisonment as indicated hereinabove. More particularly, the court graded the corruption of minors convictions at case number 5625 of 2019 as felonies of the third degree, and also imposed concurrent sentences for the two IDSI convictions at case number 845 of 2020. Additionally, as part of the sentencing order, the court imposed a condition of no contact with the victims or their families and directed that Appellant may not be within 100 yards of their residences.

Appellant filed a timely post-sentence motion challenging the length of his sentence. The motion was denied by operation of law after the trial court did not render a decision, and these timely appeals followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.^[1] Appellant presents the following three issues for our review:

1. Did the trial court illegally sentence [Appellant] on counts [five], [six], and [seven] of information 5625 of 2019, for corruption of minors graded as third-degree felonies, rather than first-degree misdemeanors, where 18 Pa.C.S. § 6301(a)(1)(ii) did not exist when the offenses occurred between 2007 and 2009, thus violating the ex post facto provisions of the United States Constitution and the Constitution of the Commonwealth of Pennsylvania, and where the court did not instruct the jury that an element of the offenses was that [Appellant] had engaged in a course of conduct in violation of Chapter 31?

2. On information 845 of 2020, was the imposition of a sentence for [IDSI] with a child, count [one], illegal as this conviction should have merged without count [two], [IDSI] with a person under the age of [sixteen], where there was only a single act of oral intercourse, and the elements of [IDSI] with a child merged with [IDSI] with a person under age [sixteen]?

3. Did the trial court err in imposing conditions of no contact with the victims or the victims' families, and barring [Appellant] from being within 100 feet of the victims' residences, where the court had no jurisdiction to impose these conditions, as the Pennsylvania Department of Probation and Parole has exclusive authority over state parole conditions, and the Pennsylvania Department of Corrections has exclusive authority over state prison conditions?

Appellant's brief at 7-8 (cleaned up).

In his first issue, Appellant attacks the legality of his sentences for corruption of minors at case number 5625 of 2019. In so doing, he advances two distinct arguments. First, Appellant contends that the subsection grading the offenses as felonies of the third degree did not exist at the time the crimes occurred, and therefore his sentence arising therefrom violates ex post facto prohibitions. Second, he argues that the jury was not instructed by the trial court to make a factual finding as to whether there was a course of conduct, as required to prove § 6301(a)(1)(ii), and likewise the verdict slip did not contain such an interrogatory. Therefore, he believes that his sentences for corruption of minors at this case are illegally graded as felonies of the third degree, and instead should default to misdemeanors of the first degree, consistent with § 6301(a)(1)(i).^[2]

We first consider Appellant's contention that his sentences violated ex post facto prohibitions. This presents a question of law, and as such, "our standard of review is de novo and our scope of review is plenary." Commonwealth v. Lippincott, 208 A.3d 143, 146 (Pa.Super. 2019).

Our High Court has stated that the ex post facto prohibition

forbids the Congress and the States to enact any law which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed. Through this prohibition, the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed. The ban also restricts governmental power by restraining arbitrary and potentially vindictive legislation.

Commonwealth v. Rose, 127 A.3d 794, 798 (Pa. 2015) (cleaned up). "It is well-settled that for a criminal or penal law to be deemed an ex post facto law, two critical elements must be met: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." Commonwealth v. Martz, 232 A.3d 801, 809 (Pa.Super. 2020) (cleaned up). A violation may occur when a law "changes the punishment, and inflicts a greater punishment, than the law annexed to the crime . . . when committed." Lehman v. Pennsylvania State Police, 839 A.2d 265, 269 (Pa. 2003).

As to this issue, Appellant accurately notes that the subsection of corruption of minors with which he was charged and ultimately sentenced, § 6301(a)(1)(ii), was not enacted until December 2010. This crime requires proof of a course of conduct and is graded as a felony of the third degree. During the time of the offenses, however, the comparable corruption statute did not require proof of a course of conduct and any violation was graded as a misdemeanor of the first degree. The record supports the finding that all the acts giving rise to the convictions occurred prior to 2010, when the minor victims resided with Appellant in various places in Pennsylvania. See N.T. Trial Vol. III, 5/11/22, at 301-02 (Detective Jessica Higgins testifying that the minors resided in the homes in question from 2007 through 2009, and concluding that all incidents of abuse took place during those years). The testimony from the victims also confirmed that Appellant's conduct occurred during that timeframe.

Therefore, by sentencing Appellant to a felony of the third degree, it is apparent that the sentences applied to acts Appellant committed before the statute was enacted. Further, this disadvantaged Appellant by imposing heightened criminal penalties upon him, in the form of a higher graded offense, compared to the applicable corruption statute at the time of the acts. Based on the above, we agree with Appellant that the sentences for corruption of minors at case number 5625 of 2019 violated ex post facto prohibitions and therefore must be vacated. Bearing in mind that Appellant has not advocated for vacation of the underlying convictions, we find that the proper remedy is for the trial court to resentence Appellant to the lower graded subsection of corruption of minors effective when the crimes occurred, which was a misdemeanor of the first degree.

Next, Appellant argues that at case number 845 of 2020, his sentence for IDSI of a child as to victim N.P. is illegal because it should have merged with the sentence for IDSI of a person less than sixteen years of age. See Appellant's brief at 21-24. This challenge implicates the legality of Appellant's sentence, and as such "our standard of review is de novo and our scope of review is plenary." See Commonwealth v. Watson, 228 A.3d 928, 941 (Pa.Super. 2020).

Merger of criminal sentences is governed by § 9765 of the Pennsylvania Sentencing Code, which provides as follows:

No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.

42 Pa.C.S. § 9765. As this Court has noted, "[t]he language of the legislature is clear. The only way two crimes merge for sentencing is if all elements of the lesser offense are included within the greater offense." Watson, supra at 941 (citation omitted); see also Commonwealth v. Cianci, 130 A.3d 780, 782 (Pa.Super. 2015) (stating that the "relevant question in [a] merger analysis now is whether...