Com. v. Noll, M. ( 2015 )

J-S45004-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL ANDREW NOLL,
Appellant No. 2035 MDA 2014
Appeal from the Judgment of Sentence November 4, 2014
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0002300-2013
BEFORE: BOWES, WECHT, AND FITZGERALD * JJ.
MEMORANDUM BY BOWES, J: FILED JULY 10, 2015
Michael Andrew Noll appeals from the judgment of sentence of twenty-
five to fifty years imprisonment that was imposed after he was found guilty
by a jury of unlawful contact with a minor, corruption of a minor, and two
counts of indecent assault. We affirm.
We first outline the trial court’s recitation of the evidence supporting
the jury’s verdict:
On August 4, 2013, M.R., a fourteen year old female,
spent the day swimming at the confluence of the Susquehanna
River and the Conodoguinet Creek, known as the Point, in Enola,
Cumberland County, with friends. She was wearing a tank top
and shorts. Around 4:15 p.m. she was approached by
Defendant, whom she had seen riding his bike near the river
earlier in the day. Defendant approached M.R., introduced
himself, and asked her if she was from the area. M.R. told
Defendant that she had lived in the area “for like 14 years.”
Defendant then asked M.R. if she was 14 years old, to which
M.R. replied, “yeah.” Defendant testified that he was 47 years
old at the time. Defendant proceeded to ask M.R. if she knew
*
Former Justice specially assigned to the Superior Court.
J-S45004-15
where a nearby trail led. She explained that the trail led to the
arches of a bridge and then forked, with one prong leading to
Enola and a park. Defendant asked M.R. if she would walk with
him as far as the arches. She initially refused, but Defendant
persisted and she eventually acquiesced. . . . However, M.R. only
agreed to accompany Defendant half way to the arches, where
there is a camp site.
When they arrived at the camp site, Defendant sat down,
wanting to talk with M.R. for a little while. Because she did not
want to stay long, M.R. told Defendant that she had to be home
to babysit her sister by 4:30 p.m., even though this was not
true. After talking for a little while with Defendant, M.R. began
walking back and Defendant followed. About half way to the
trailhead, Defendant sat down again and wanted to talk. M.R.
asked Defendant what time it was, and Defendant, after
approximately 15 minutes, told her it was 4:50 p.m. M.R. said
she had to go and that her dad was probably waiting for her.
Defendant asked her to stay and talk, and she [agreed.] She
explained at trial that she stayed because she “was probably a
little bit scared.”
Defendant began to talk about his penis, telling M.R. how
big it was. He then began to grab and squeeze “all up and down
her legs.” M.R. was uncertain whether she told Defendant to
stop or simply pulled away from him. Defendant also touched
underneath her breasts, the sides of her breasts, and swiped his
hand across her breasts, all over her clothes, and lifted up her
shirt and touched her stomach. Defendant asked M.R. to turn
around, which she did, and then squeezed and bit her butt.
Defendant then told her to put her hands on his bike seat, again
she complied, and Defendant put his hands on her hips and
pressed his hips and penis against her. M.R. told Defendant to
stop, and he did.
....
When M.R. attempted to walk away from Defendant, he
grabbed her by the arm. She pulled away, and Defendant got
on his bike, blocked her path, and grabbed her by the arm
again. M.R. pulled away again and began walking faster. She
finally made it back to the trailhead where she saw a friend, J.J.,
fishing. J.J. then walked her home.
-2-
J-S45004-15
M.R. told her father and step-mother what had occurred
and subsequently spoke with [police, who also had been
dispatched to the area and located and questioned Defendant,
who did not cooperate.]
Trial Court Opinion, 2/6/15, at 2-5 (footnotes omitted).
Based upon this evidence, on January 29, 2014, a jury found Appellant
guilty of unlawful contact with a minor, corruption of a minor, indecent
assault (lack of consent), and indecent assault (complainant under the age
of sixteen and defendant more than four years older). Appellant was
adjudged a sexually violent predator at a hearing conducted on October 30,
2014. The matter proceeded to sentencing, where Appellant was sentenced
as a recidivist to twenty-five to fifty years incarceration; concurrent
sentences were imposed on each crime. Appellant also was fined $100.
This appeal followed denial of post-trial motions. Appellant raised these
positions on appeal:
I. Whether 42 Pa. C.S. § 9718.2, which requires a 25 to 50 year
mandatory minimum sentence and which is written in virtually
the same language-as-other unconstitutional sentencing statutes,
violates due process and sixth amendment protections as set
forth in Alleyne and its progeny.
II. Whether the court violated 42 PA. C.S. § 9726 in imposing a
fine on a 49-year-old man currently serving a 25 to 50 year
sentence of incarceration failing to consider the length of
incarceration and concluding the fine was especially adapted to
deterring the crime or aid correction of the defendant.
III. Whether convictions for unlawful contact with a minor, 18 PA.
C.S. § 6318, and indecent assault under 18 PA. C.S. § 3126(a)(1)
and (a)(8) merge for sentencing purposes as the statutory
-3-
J-S45004-15
elements of those offenses are included in statutory elements of
the other and arise from a single criminal act.
Appellant’s brief at 7.
Appellant’s first position is that 42 Pa.C.S. § 9718.2, which outlines
sentences for sexual offenders, is unconstitutional under Alleyne v. United
States, 133 S.Ct. 2151 (2013). A “challenge to a sentence premised upon
Alleyne . . . implicates the legality of the sentence[.]” Commonwealth v.
Newman, 99 A.3d 86, 90 (Pa.Super. 2014). An issue relating to the legality
of a sentence is a question of law. Therefore, “our standard of review is de
novo and our scope of review is plenary.” Commonwealth v. Melius 100
A.3d 682, 684 (Pa.Super. 2014).
In this case, Appellant was sentenced under § 9718.2(a)(1) (emphasis
added), which provides:
(1) Any person who is convicted in any court of this
Commonwealth of an offense set forth in section 9799.14
(relating to sexual offenses and tier system) shall, if at the
time of the commission of the current offense the person
had previously been convicted of an offense set forth in
section 9799.14 or an equivalent crime under the laws of this
Commonwealth in effect at the time of the commission of that
offense or an equivalent crime in another jurisdiction, be
sentenced to a minimum sentence of at least 25 years of total
confinement, notwithstanding any other provision of this title or
other statute to the contrary. Upon such conviction, the court
shall give the person oral and written notice of the penalties
under paragraph (2) for a third conviction. Failure to provide
such notice shall not render the offender ineligible to be
sentenced under paragraph (2).
-4-
J-S45004-15
That section further states that the fact of a prior offense is not an element
of the crime and its applicability shall be determined at sentencing by the
sentencing court. 18 Pa.C.S. § 9718.2(c).
Thus, the statute in question is a recidivist provision. In this case,
Appellant was sentenced under its provisions due to his prior conviction of a
sexual offense. Appellant suggests that the statute is constitutionally infirm
under the decision in Alleyne. Therein, the United States Supreme Court
held the existence of any fact that is necessary to apply a mandatory
minimum sentencing provision is an element of the crime rather than a
sentencing factor and must be presented to the jury and established beyond
a reasonable doubt. Alleyne applied the Court’s holding in Apprendi v.
New Jersey, 530 U.S. 466 (2000), which held that the defendant’s
constitutional right to a jury trial attaches to any fact, other than a prior
conviction, that increases the maximum sentence. Apprendi thus left intact
the Court’s prior decision in Almendarez–Torres v. United States, 523
U.S. 224 (1998), which rejected the proposition that the fact of a prior
conviction constitutes an element of a crime and held that, instead, whether
a person has been previously convicted of a crime is a sentencing factor.
We have specifically ruled that the Alleyne decision does not apply to
any statute imposing a mandatory minimum based upon the existence of a
prior conviction. Commonwealth v. Miller, 102 A.3d 988, 995 n. 5
(Pa.Super. 2014) (holding that there was no Alleyne violation where the
-5-
J-S45004-15
increase in the defendant’s minimum sentence was “based on the fact of
prior convictions[.]”); see also Commonwealth v. Valentine, 101 A.3d
801, 804 n. 2 (Pa.Super. 2014) (citation omitted; emphasis added) (“The
Alleyne decision renders those Pennsylvania mandatory minimum
sentencing statutes that do not pertain to prior convictions
constitutionally infirm insofar as they permit a judge to automatically
increase a defendant's sentence based on a preponderance of the evidence
standard.”); see also Commonwealth v. Watley, 81 A.3d 108 (Pa.Super.
2013) (en banc). In this case, Appellant’s increased sentence was premised
upon the fact of a prior conviction, and his invocation of Alleyne therefore
fails.
Appellant next challenges the court’s imposition of a $100.00 fine
under 42 Pa.C.S. § 9726(c), which provides, “The court shall not sentence a
defendant to pay a fine unless it appears of record that: (1) the defendant is
or will be able to pay the fine and (2) the fine will not prevent the defendant
from making restitution or reparation to the victim of the crime.” Appellant
maintains that, in light of the length of his sentence and age, there is no
record evidence that he will be able to pay the fine in question.
This position “raises a question of statutory interpretation, which is
likewise a question of law, triggering the same scope and standard of review
as that involving the legality of a sentence.” Melius, supra at 684. As we
have noted, “[I]mposition of a fine is not precluded merely because the
-6-
J-S45004-15
defendant cannot pay the fine immediately or because he cannot do so
without difficulty." Commonwealth v. Thomas, 879 A.2d 246, 264 (Pa.
Super. 2005).
In the present case, the fine was miniscule and prison employment will
be available to Appellant, who is not disabled. Moreover, the court had a
presentence investigation report. Based upon the contents of that report, it
“determined that Defendant will be able to pay the $100 fine imposed at
Count 5, even if not immediately or without difficulty. We note that we did
not impose any other fines on Defendant and there is no restitution due at
this docket.” Trial Court Opinion, 2/5/15, at 12. As the court’s
determination that Appellant had the financial resources to pay the $100 fine
was premised upon the contents of the pre-sentence report, we affirm.
Commonwealth v. Boyd, 73 A.3d 1269, 1273 (Pa.Super. 2013) (where
court had the benefit of a pre-sentence investigation containing information
about defendant’s educational history, employment history, and existing
assets, the PSI “provided the sentencing court with an evidentiary basis
upon which to impose a fine.”).
Appellant’s final averment is that indecent assault and unlawful contact
with a minor should have merged for sentencing purposes. The issue of
whether offenses merge relates to the legality of the sentence.
Commonwealth v. Jackson, 111 A.3d 1187 (Pa.Super. 2015). Thus, as
with Appellant’s first two averments, our standard of review is de novo and
-7-
J-S45004-15
our scope of review is plenary. Pursuant to 42 Pa.C.S. § 9765, “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.”
In Commonwealth v. Evans, 901 A.2d 528, 536 (Pa.Super. 2006),
we specifically held that indecent assault and unlawful contact with a minor
did not merge for sentencing purposes since the offenses contain different
elements. Additionally, the convictions herein were supported by discrete
criminal acts. Appellant touched M.R.'s breasts, squeezed and bit her
buttocks, and pressed his penis against M.R. while standing behind her. We
therefore reject Appellant’s merger position.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2015
-8-