Commonwealth v. Wolfe

• Decision Date: 24 December 2014
• Docket Number: No. 1962 MDA 2013,1962 MDA 2013
• Citation: 106 A.3d 800,2014 PA Super 288
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Mathew Bryan WOLFE, Appellant.

106 A.3d 800

2014 PA Super 288

COMMONWEALTH of Pennsylvania, Appellee

v.Mathew Bryan WOLFE, Appellant.

No. 1962 MDA 2013

Superior Court of Pennsylvania.

Submitted Sept. 9, 2014.

Filed Dec. 24, 2014.

James J. Karl, Public Defender, Lancaster, for appellant.

Andrew T. LeFever, Assistant District Attorney, Lancaster, for Commonwealth, appellee.

BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

Opinion

OPINION BY MUNDY, J.:

Appellant, Matthew Bryan Wolfe, appeals from the October 1, 2013, aggregate judgment of sentence of ten to 20 years' imprisonment, imposed after he was found guilty of two counts of involuntary deviate sexual intercourse (IDSI), one count of unlawful contact with a minor, four counts of statutory sexual assault, and one count of corruption of minors.¹ After careful review, we vacate and remand for resentencing.

We summarize the relevant factual and procedural background of this case as follows. On January 15, 2013, the Commonwealth filed an information charging Appellant with the above-mentioned offenses, as well as two additional counts of IDSI, and one count each of aggravated indecent assault and indecent exposure.² On June 12, 2013, Appellant proceeded to a two-day jury trial, at the conclusion of which Appellant was found guilty of two counts of IDSI, one count of unlawful contact with a minor, four counts of statutory sexual assault, and one count of corruption of minors. The jury acquitted Appellant of one count each of IDSI and aggravated indecent assault. The fourth IDSI count and the indecent exposure count were dismissed by the trial court.

On October 1, 2013, the trial court imposed an aggregate sentence of ten to 20 years' imprisonment. Relevant to this appeal, Appellant received a ten-year mandatory minimum sentence for each IDSI count pursuant to 42 Pa.C.S.A. § 9718(a)(1). Appellant did not file a post-sentence motion. On October 31, 2013, Appellant filed a timely notice of appeal.³

On appeal, Appellant raises the following issue for our review.

In the context of imposing [a] sentence for otherwise consensual oral sex activity between a defendant as young as 18 and a complainant between the ages of 13 and 16, does Pennsylvania's entire sentencing scheme violate [Appellant]' s constitutional rights to equal protection of the laws, due process, and the right against cruel and unusual punishment because it imposes vastly greater sentences for otherwise consensual oral sex activity by means of the 10–year mandatory provision at 42 Pa.C.S. § 9718 than it does for otherwise consensual vaginal sex activity?

Appellant's Brief at 5.

At the outset, we note that Appellant's sole issue on appeal challenges the constitutionality of the mandatory minimum sentencing provision at Section 9718. Appellant avers that Section 9718 violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment, as well as the Cruel and Unusual Punishment Clause of the Eighth Amendment. However, we need not address these arguments, as we conclude that Appellant's sentence is illegal on a different basis.

We begin by noting that a challenge to the legality of the sentence can never be waived and may be raised by this Court sua sponte. Commonwealth v. Orellana, 86 A.3d 877, 883 n. 7 (Pa.Super.2014) (citation omitted). We further note that issues pertaining to the United States Supreme Court's decision in Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), directly implicate the legality of the sentence. Commonwealth v. Lawrence, 99 A.3d 116, 122–25 (Pa.Super.2014). With this in mind, we proceed by noting our well-settled standard of review of questions involving the legality of a sentence.

“A challenge to the legality of a sentence ... may be entertained as long as the reviewing court has jurisdiction.”

Commonwealth v. Borovichka, 18 A.3d 1242, 1254 (Pa.Super.2011) (citation omitted). It is also well-established that “[i]f no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction.” Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa.Super.2014) (citation omitted). “An illegal sentence must be vacated.” Id. “Issues relating to the legality of a sentence are questions of law[.] ... Our standard of review over such questions is de novo and our scope of review is plenary.” Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa.Super.2014) (citations omitted).

In this case, Appellant was sentenced under the mandatory minimum statute at Section 9718, which provides in relevant part, as follows.

§ 9718. Sentences for offenses against infant persons

(a) Mandatory sentence.—

(1) A person convicted of the following offenses when the victim is less than 16 years of age shall be sentenced to a mandatory term of imprisonment as follows:

...

18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse)—not less than ten years.

...

(c) Proof at sentencing.— The provisions of this section shall not be an element of the crime, and notice of the provisions of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.

...

42 Pa.C.S.A. § 9718.

In Alleyne, the Supreme Court held that “facts that increase mandatory minimum sentences must be submitted to the jury” and must be found beyond a reasonable doubt. Alleyne, supra at 2163. Alleyne is an extension of the Supreme Court's line of cases beginning with Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Alleyne, the Court overruled Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), in which the Court had reached the opposite conclusion, explaining that there is no constitutional distinction between judicial fact finding which raises the minimum sentence and that which raises the maximum sentence.

It is impossible to dissociate the floor of a sentencing range from the penalty affixed to the crime. Indeed, criminal statutes have long specified both the floor and ceiling of sentence ranges, which is evidence that both define the legally prescribed penalty. This historical practice allowed those who violated the law to know, ex ante, the contours of the penalty that the legislature affixed to the crime—and comports with the obvious truth that the floor of a mandatory range is as relevant to wrongdoers as the ceiling. A fact that increases a sentencing floor, thus, forms an essential ingredient of the offense.

Moreover, it is impossible to dispute that facts increasing the legally prescribed floor aggravate the punishment. Elevating the low-end of a sentencing range heightens the loss of liberty associated with the crime: the defendant's expected punishment has increased as a result of the narrowed range and the prosecution is empowered, by invoking the mandatory minimum, to require the judge to impose a higher punishment than he might wish. Why else would Congress link an increased mandatory minimum to a particular aggravating fact other than to heighten the consequences for that behavior? This reality demonstrates that the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime, each element of which must be submitted to the jury.

Alleyne, supra at 2160–2161 (internal quotation marks and citations omitted).

Commonwealth v. Miller, 102 A.3d 988, 994–96 (Pa.Super.2014).

In Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.2014) (en banc ), this Court confronted the same type of challenge to the mandatory minimum sentence found at Section 9712.1, regarding the proximity between drugs and guns. See id. at 90–91. Section 9712.1 had the same format as Section 9718 insofar that one subsection contains the additional fact that triggers the mandatory penalty, and another subsection states that this fact shall be found by the trial court by a preponderance of the evidence at sentencing. See id., quoting 42 Pa.C.S.A. §§ 9712.1(a), 9712.1(c) ; 42 Pa.C.S.A. §§ 9718(a), 9718(c).

The Newman Court first concluded that the defendant's sentence was illegal in light of Alleyne and required this Court to vacate and remand for resentencing. Id. at 97–98. However, this Court further noted that Alleyne issues are subject to harmless error analysis but that the Alleyne issue in Newman was not harmless. Id. at 98–99. Finally, this Court rejected the Commonwealth's argument that, if the error was not harmless, the appropriate remedy would be to remand to the trial court to empanel a second sentencing jury. Specifically, in rejecting this argument, the Newman Court concluded that Section 9712.1 in its entirety must be struck down as unconstitutional in light of Alleyne, concluding that its subsections were not severable.⁴

The Commonwealth's suggestion that we remand for a sentencing jury would require this court to manufacture whole cloth a replacement enforcement mechanism for Section 9712.1 ; in other words, the Commonwealth is asking us to legislate. We recognize that in the prosecution of capital cases in Pennsylvania, there is a similar, bifurcated process where the jury first determines guilt in the trial proceeding (the guilt phase) and then weighs aggravating and mitigating factors in the sentencing proceeding (the penalty phase). However, this mechanism was created by the General Assembly and is enshrined in our statutes at 42 Pa.C.S.A. § 9711. We find that it is manifestly the province of the General Assembly to determine what new procedures must be created in order to impose mandatory minimum sentences in Pennsylvania following Alleyne. We cannot do so.

Id. at 102.⁵

We...