Com. v. Jackson, R. ( 2015 )


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  • J-S68034-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                             IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    ROBERT ANTHONY JACKSON
    Appellant                           No. 3180 EDA 2014
    Appeal from the Judgment of Sentence November 10, 2014
    In the Court of Common Pleas of Chester County
    Criminal Division at No(s): CP-15-CR-0001955-2013
    BEFORE:       BENDER, P.J.E., DONOHUE, J., and MUNDY, J.
    MEMORANDUM BY MUNDY, J.:                                 FILED DECEMBER 30, 2015
    Appellant, Robert Anthony Jackson, appeals from the November 10,
    2014 aggregate judgment of sentence of 83 to 167 years’ imprisonment,
    imposed after a jury found him guilty of one count of involuntary deviate
    sexual intercourse (IDSI) with a child, four counts each of aggravated
    indecent assault on a child without consent and aggravated indecent assault
    on a child, and two counts each of endangering the welfare of children
    (EWOC),     corruption      of   minors,       and   indecent    assault   on   a   child.1
    Contemporaneously with this appeal, Appellant’s counsel has filed a petition
    ____________________________________________
    1
    18 Pa.C.S.A. §§ 3123(b), 3125(a)(1), 3125(b), 4304(a), 6301(a), and
    3126(a), respectively.
    J-S68034-15
    to withdraw with this Court and an Anders2 brief.3 After careful review, we
    vacate and remand for resentencing and deny counsel’s petition to withdraw.
    In its opinion, the trial court thoroughly details the facts of the case
    and the evidence adduced at trial, and we adopt its comprehensive recitation
    for the purpose of this appeal.         See Trial Court Opinion, 5/13/15, at 2-4.
    Briefly, between February and May 2013, Appellant served as an occasional
    babysitter to two brothers, J.G. and C.G., ages six and nine, respectively.
    While entrusted with the care of the children, Appellant sexually abused
    them.      Specifically, J.G. revealed Appellant touched J.G.’s penis and
    penetrated his rectum with his fingers. C.G. revealed Appellant performed
    oral sex on him, penetrated his rectum with his fingers, and fondled his
    penis. The children maintained the assaults occurred multiple times.
    On June 13, 2013, the Commonwealth filed an information charging
    Appellant with IDSI with a child and numerous related offenses.              The
    Commonwealth, thereafter, filed an amended information on January 14,
    2014.     Therein, the Commonwealth notified Appellant that the charges of
    IDSI with a child and aggravated indecent assault on a child carry
    mandatory minimum sentences pursuant to 42 Pa.C.S.A. § 9718. Amended
    ____________________________________________
    2
    Anders v. California, 
    386 U.S. 738
     (1967).
    3
    This case returns to us following our order remanding and instructing
    Appellant’s counsel to either file an advocate’s brief or a procedurally
    compliant Anders Brief. Superior Court Order, 11/23/15.
    -2-
    J-S68034-15
    Information, 1/14/14, at 1-4. On August 5, 2014, Appellant proceeded to a
    three-day jury trial. At the conclusion of the trial, on August 8, 2014, the
    jury convicted Appellant of the aforementioned offenses.        The remaining
    charges were withdrawn. On November 10, 2014, the trial court determined
    Appellant to be a sexually violent predator and imposed an aggregate
    sentence of 83 to 167 years’ imprisonment.4 Appellant did not file a post-
    sentence motion. On November 12, 2014, Appellant filed a timely notice of
    appeal.5
    Appellant’s counsel advances the following question for this Court’s
    review.
    Whether the trial court erred by giving an instruction
    stating that the testimony of the victims standing
    alone, without other corroboration, if believed, is
    sufficient proof upon which to find [Appellant]
    guilty[?]
    Anders Brief at 4.
    ____________________________________________
    4
    Specifically, the trial court imposed a term of imprisonment of twenty-five
    to fifty years for IDSI with a child and one count of aggravated indecent
    assault of a child, to run consecutively; consecutive ten to twenty years on
    three counts of aggravated indecent assault of a child; and a consecutive
    three to seven years for one count of EWOC. Sentencing Order, 11/10/14,
    at 1-4; N.T., 11/10/14, at 22. The trial court sentenced Appellant to three to
    seven years on the second count of EWOC and on each count of corruption
    of minors, to run concurrent to the sentences already imposed. 
    Id.
    5
    The trial court and Appellant have complied with Pennsylvania Rule of
    Appellate Procedure 1925.
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    “When presented with an Anders brief, this Court may not review the
    merits of the underlying issues without first passing on the request to
    withdraw.”     Commonwealth v. Daniels, 
    999 A.2d 590
    , 593 (Pa. Super.
    2010) (citation omitted). Additionally, an Anders brief shall comply with the
    requirements set forth by our Supreme Court in Commonwealth v.
    Santiago, 
    978 A.2d 349
     (Pa. 2009).
    [W]e hold that in the Anders brief that
    accompanies court-appointed counsel’s petition to
    withdraw, counsel must: (1) provide a summary of
    the procedural history and facts, with citations to the
    record; (2) refer to anything in the record that
    counsel believes arguably supports the appeal; (3)
    set forth counsel’s conclusion that the appeal is
    frivolous; and (4) state counsel’s reasons for
    concluding that the appeal is frivolous.       Counsel
    should articulate the relevant facts of record,
    controlling case law, and/or statutes on point that
    have led to the conclusion that the appeal is
    frivolous.
    
    Id. at 361
    .
    Pursuant to Commonwealth v. Millisock, 
    873 A.2d 748
     (Pa. Super.
    2005) and its progeny, counsel seeking to withdraw on direct appeal must
    also meet the following obligations to his or her client.
    Counsel also must provide a copy of the Anders
    brief to his client. Attending the brief must be a
    letter that advises the client of his right to: (1)
    retain new counsel to pursue the appeal; (2)
    proceed pro se on appeal; or (3) raise any points
    that the appellant deems worthy of the court[’]s
    attention in addition to the points raised by counsel
    in the Anders brief.
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    Commonwealth v. Orellana, 
    86 A.3d 877
    , 880 (Pa. Super. 2014) (internal
    quotation marks and citation omitted).     “Once counsel has satisfied the
    above requirements, it is then this Court’s duty to conduct its own review of
    the trial court’s proceedings and render an independent judgment as to
    whether the appeal is, in fact, wholly frivolous.”      Commonwealth v.
    Goodwin, 
    928 A.2d 287
    , 291 (Pa. Super. 2007) (en banc), quoting
    Commonwealth v. Wright, 
    846 A.2d 730
    , 736 (Pa. Super. 2004). Further,
    “this Court must conduct an independent review of the record to discern if
    there are any additional, non-frivolous issues overlooked by counsel.”
    Commonwealth v. Flowers, 
    113 A.3d 1246
    , 1250 (Pa. Super. 2015)
    (footnote and citation omitted).
    In the instant case, we conclude that counsel’s Anders brief complies
    with the requirements of Santiago. First, counsel has provided a summary
    of the case with citations to the record. Second, counsel refers to portions
    of the record that could arguably support an appeal and explains why any
    issue raised would be frivolous. Third, counsel has “determined the claims …
    are wholly frivolous.” Anders Brief at 10. Lastly, counsel has included his
    reasons that support his conclusion that the appeal is frivolous.   Id. at 9.
    Counsel has also attached to his petition to withdraw proof of his compliance
    with the requirements of Millisock. Specifically, counsel advised his client
    that he has concluded that the appeal is frivolous, that Appellant has the
    right to hire a new attorney, to proceed pro se, or to raise any additional
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    J-S68034-15
    points for this Court’s consideration. See Petition to Withdraw, 12/7/15, at
    1-2; Anders Brief at Appendix C (correspondence to Appellant). Appellant
    has not taken any action in this Court in response to said advice.
    Accordingly, we proceed to conduct an independent review to ascertain if the
    appeal is indeed wholly frivolous.
    In the sole issue before us, counsel advances it was error for the trial
    court to instruct the jury that the testimony of the victims, alone, is
    sufficient evidence to convict Appellant.    Anders Brief at 7. We review such
    challenges mindful of the following.
    When reviewing a challenge to part of a jury
    instruction, we must review the jury charge as a
    whole to determine if it is fair and complete. A trial
    court has wide discretion in phrasing its jury
    instructions, and can choose its own words as long
    as the law is clearly, adequately, and accurately
    presented to the jury for its consideration. The trial
    court commits an abuse of discretion only when
    there is an inaccurate statement of law.
    Commonwealth v. Conaway, 
    105 A.3d 755
    , 760 (Pa. Super. 2014)
    (citation omitted), appeal denied, 
    118 A.3d 1107
     (Pa. 2015).
    The trial court instructed the jury as follows, regarding the testimony
    of the two children.
    With respect to the testimony of the two boys, their
    testimony, standing alone, if believed by you, is
    sufficient proof upon which to find [Appellant] guilty
    in this case, if it is believed by you. The testimony
    of the victim in a case such as this need not be
    supported by other evidence to sustain a conviction.
    Thus[,] you may find [Appellant] guilty if the
    testimony of the boys convinces you beyond a
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    J-S68034-15
    reasonable doubt that [Appellant] is guilty. And in
    making such determinations[,] you apply all of the
    other factors that I presented to in determining the
    credibility and weight of the testimony.
    N.T., 8/8/14, at 80-81.
    Instantly, we find no error in the trial court’s instruction.   First, we
    note the language of the trial court substantially tracked the language of
    Pennsylvania Suggested Standard Criminal Jury Instruction § 4.13B.         See
    Commonwealth v. Trippett, 
    932 A.2d 188
    , 201 (Pa. Super. 2007)
    (discussing the appropriateness of instructing the jury that uncorroborated
    testimony of a sexual assault victim is sufficient to convict a defendant and
    concluding, because Pa.S.S.Crim.J.I § 4.13B comports with Pennsylvania
    law, appellant’s claim that such instruction was error was meritless).
    Moreover, it is axiomatic that “the uncorroborated testimony of a sexual
    assault victim, if believed by the trier of fact, is sufficient to convict a
    defendant.”     Commonwealth v. McDonough, 
    96 A.3d 1067
    , 1069 (Pa.
    Super. 2014), appeal denied, 
    108 A.3d 34
     (Pa. 2015). Accordingly, as the
    jury instruction accurately apprised the jury of the law, Appellant’s claim is
    wholly frivolous. See Conaway, supra.
    Based on the foregoing discussion, we agree with counsel that
    Appellant’s claim on appeal is wholly frivolous.   However, our independent
    review of the record has disclosed that Appellant’s sentence is illegal. See
    Flowers, 
    supra.
     It is well established that legality of sentence challenges
    are non-waivable, and this Court may raise such challenges sua sponte.
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    J-S68034-15
    Commonwealth v. Watley, 
    81 A.3d 108
    , 118 (Pa. Super. 2013) (en banc),
    appeal denied, 
    95 A.3d 277
     (Pa. 2015). “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. Fennell, 
    105 A.3d 13
    , 16 (Pa. Super. 2014) (citation omitted), appeal
    denied, 
    121 A.3d 494
     (Pa. 2015). Further, “[i]f no statutory authorization
    exists for a particular sentence, that sentence is illegal and subject to
    correction.” Commonwealth v. Wolfe, 
    106 A.3d 800
    , 802 (Pa. Super.
    2014) (citation omitted), appeal granted, 
    121 A.3d 433
     (Pa. 2015).         “An
    illegal sentence must be vacated.” Fennell, supra at 16. (citation omitted).
    As noted, the Commonwealth notified Appellant of the potential for a
    mandatory minimum sentence pursuant to Section 9718 via the amended
    information.    “Application of a mandatory minimum sentence gives rise to
    illegal sentence concerns, even where the sentence is within the statutory
    limits.” Watley, supra at 118. The sentencing order reveals that the trial
    court imposed a mandatory minimum term of ten to twenty years’
    imprisonment for three counts of aggravated indecent assault of a child.6
    Sentencing Order, 11/10/14, at 1-2; accord 18 Pa.C.S.A. 9718(a)(3).
    ____________________________________________
    6
    We note our review of the transcripts reveals the Commonwealth explicitly
    sought application of the mandatory minimum sentence pursuant to Section
    9718.2 based on Appellant’s prior convictions. See N.T., 8/8/14, at 113;
    N.T., 11/10/14, at 6-7. The trial court specifically noted its application of
    Section 9718.2 at sentencing. N.T., 11/10/14, at 21. Mandatory minimum
    (Footnote Continued Next Page)
    -8-
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    This Court has concluded, “Section 9718 is … facially unconstitutional.”
    Wolfe, supra at 805.              As no statutory authorization existed for the
    imposition of the sentence, we conclude the sentence is illegal. Id. at 802.
    Based on the foregoing discussion, we conclude the issue raised by
    counsel is frivolous. However, our independent review has revealed the trial
    court has imposed an illegal sentence.             Therefore, we vacate Appellant’s
    judgment of sentence and remand for resentencing without consideration of
    the Section 9718 mandatory minimum.                  Additionally, we deny counsel’s
    petition to withdraw.
    Judgment of sentence vacated. Case remanded for resentencing.
    Petition to withdraw as counsel denied.           Jurisdiction Relinquished.
    _______________________
    (Footnote Continued)
    sentences based on prior convictions are not unconstitutional, as prior
    convictions are sentencing factors and not elements of offenses.
    Commonwealth v. Reid 
    117 A.3d 777
    , 784-785 (Pa. Super. 2015).
    Accordingly, the mandatory twenty-five year sentences imposed for IDSI
    with a child and one count of aggravated indecent assault of a child are
    legal. While the trial court was silent as to the application of the mandatory
    minimum sentence pursuant to Section 9718 at sentencing, the
    Commonwealth informed the trial court of the mandatory minimum. See
    N.T., 11/10/14, at 12 (the Commonwealth informed the trial court that the
    aggravated indecent assault charges carry a “mandatory of ten years[’
    imprisonment] because of the age of the child[]”). Further, the trial court
    indicated on its sentencing order that the ten-year sentences it imposed
    were pursuant to mandatory sentences. Sentencing Order, 11/10/14, at 1-
    3.
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/30/2015
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