Com. v. Crittenden, S. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SETH M. CRITTENDEN
Appellant No. 1372 MDA 2013
Appeal from the Sentencing July 1, 2013
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0002913-2012
BEFORE: OTT, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED DECEMBER 23, 2014
Seth M. Crittenden appeals from the judgment of sentence imposed on
July 1, 2013, in the Court of Common Pleas of Berks County. On March 5,
2013, a jury found Crittenden guilty of two counts of indecent assault 1 and
one count of indecent exposure.2 The court sentenced Crittenden to a term
of six to 23 months’ imprisonment plus four years of probation. On appeal,
Crittenden raises the following two issues: (1) the court erred in grading the
indecent assault (complainant less than 13 years of age) as a third-degree
felony instead of a first-degree misdemeanor; and (2) counsel was
ineffective in failing to conduct a reasonable investigation and present the
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1
18 Pa.C.S. §§ 3126(a)(1) and (a)(7).
2
18 Pa.C.S. § 3127(a).
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testimony of witnesses who would have testified about positive and friendly
interaction between Crittenden and the victim after the dates of the
offenses. After a thorough review of the submissions by the parties, the
certified record, and relevant law, we affirm in part and vacate in part.
The trial court set forth the facts as follows:
The complainant in this case is a juvenile referred to
herein as “K.R.” In November 2011, officials were alerted by
school personnel that K.R. reported having been sexually abused
several years earlier. An investigation ensued, in which K.R.
reported that [Crittenden] had on several occasions touched and
fondled her genitals and otherwise engaged in sexual contact
with her, at her family’s home in Amity Township, Berks County,
Pennsylvania.
These incidents began when K.R. was seven years old.
K.R. described four distinct incidents. She testified that the first
took place in her bedroom while the families were gathered at
her home to watch a NASCAR race. She testified that she and
[Crittenden] were alone playing video games when [Crittenden]
told her that if she wanted to play the game, she had to allow
him to put his hands in her pants. [K.R.] could not remember
the exact date this occurred, only that it was one of her earliest
memories and that age 7 was the earliest age she could think
back to.
The second incident K.R. testified about also took place in
her bedroom, again when she was alone with [Crittenden]:
He told me to take my pants off so I did, and so he
put his mouth on my vagina and I let him…. He took his
pants off and told me to put my mouth on his penis…. It
went on until the point where he ejaculated.
K.R. testified that this incident went on approximately five
minutes.
K.R. testified of a third occasion which she remembered
taking place in the upstairs bathroom:
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He told me to take my clothes off so I did. And then he
took his clothes off. And then he laid on top of me in the
bathroom…. He rubbed his penis in my vagina but it didn’t
go inside me.
K.R. said this went on for approximately 10 minutes.
The fourth and last occasion of which K.R. testified took
place in her brother’s bedroom, on April 28, 2007, the date of
her older sister’s sixteenth birthday celebration. K.R. testified
that she, [Crittenden], and her brother were playing video
games in her brother’s room, and that she and [Crittenden] were
lying next to each other on the bed:
We were all playing video games. And my brother went
to the bathroom. And [Crittenden] came up and put his
arms around me and tried to put his hands down my pants
but I told him no and I tried to get away. And I told him
no multiple times until I just gave up….
This went on until K.R.’s brother came back from the bathroom
and walked into the room, while [Crittenden]’s hands were still
in K.R.’s pants. K.R. testified: “He touched my vagina but not
for very long because that’s when my brother walked in.
[Crittenden] quickly pulled his hands out.” K.R.’s brother also
testified that when he came back into the room “they were
laying down in my bed in a spooning position. And when I
walked in, they both jumped up. And we continued to play video
games.”2
2
K.R. and her brother gave materially consistent accounts
of that occasion, with some factual differences: K.R.
testified that the door was open and that she and
[Crittenden] were under the covers; her brother testified
that the door had been closed and that K.R. and
[Crittenden] were on top of the covers.
In November 2011, K.R. made the following entry in her
journal:
One thing I would put on my shirt would be “sexually
abused.” A lot of people don’t know, but when I was
younger my two cousins did some pretty bad things to me.
The only [sic] they stopped was because my brother found
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out and told my parents. From the age of 5 to 10 this
went on, 7 years. What I feel now is mostly not hate. I’m
afraid of what’ll happen if I’m alone with any guy. Even if
it’s my friend.
This journal entry prompted K.R.’s teacher to contact
school officials, who reported it to the police. An investigation
by the Berks County District Attorney resulted in [Crittenden]’s
arrest on May 27, 2012.
Trial Court Opinion, 12/17/2013, at 2-4 (record citations omitted).
Crittenden was charged with rape, involuntary deviate sexual
intercourse, aggravated indecent assault, and indecent exposure. A two-day
jury trial began on March 4, 2013. As noted above, the jury convicted
Crittenden of two counts of indecent assault and one count of indecent
exposure. The jury acquitted him of the remaining charges. The trial court
sentenced Crittenden on July 1, 2013 to a term of six to 23 months’
imprisonment for the indecent assault (complainant less than 13 years of
age) conviction, and two consecutive terms of two years’ probation for the
other indecent assault (without the consent of the other person) conviction
and the indecent exposure offense. Crittenden did not file post-sentence
motions but did file a timely notice of appeal.3
Preliminarily, we note Crittenden’s challenge to the effective assistance
of trial counsel must be deferred until collateral review. Recently, the
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3
On August 1, 2013, the trial court ordered Crittenden to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Crittenden filed a concise statement on August 21, 2013. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on December 17, 2013.
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Pennsylvania Supreme Court in Commonwealth v. Holmes, 79 A.3d 562(Pa. 2013), reaffirmed the general rule first set forth in Commonwealth v.
Grant, 813 A.2d 726 (Pa. 2002), that “claims of ineffective assistance of
counsel are to be deferred to PCRA review; trial courts should not entertain
claims of ineffectiveness upon post-verdict motions; and such claims should
not be reviewed upon direct appeal.” Holmes, supra, 79 A.3d at 576.
Although the Holmes Court recognized two exceptions to that general rule,
neither is applicable here.4 Accordingly, we dismiss Crittenden’s
ineffectiveness claim without prejudice to him to raise in a timely collateral
proceeding.
In his remaining issue, Crittenden claims the trial court erred in
grading Count 12, indecent assault (person less than 13 years of age), as a
third-degree felony instead of a first-degree misdemeanor for several
reasons. First, he raises an ex post facto clause5 argument, claiming the
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4
The Holmes Court limited those exceptions to the following: (1) where
the trial court determines that a claim of ineffectiveness is “both meritorious
and apparent from the record so that immediate consideration and relief is
warranted[;]” or (2) where the trial court finds “good cause” for unitary
review, and the defendant makes a “knowing and express waiver of his
entitlement to seek PCRA review from his conviction and sentence, including
an express recognition that the waiver subjects further collateral review to
the time and serial petition restrictions of the PCRA.” Holmes, supra, 79
A.3d at 564, 577 (footnote omitted).
5
See U.S. Const. Art. I, § 10; Pa. Const. Art. I, § 17. “A state law violates
the ex post facto clause if it was adopted after the complaining party
committed the criminal acts and ‘inflicts a greater punishment than the law
(Footnote Continued Next Page)
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indecent assault statute was amended on November 23, 2005, during the
time when these assaults occurred. Crittenden’s Brief at 16-18, 22-23. He
states, “Given that [the victim] could not recall the exact or … the
approximate dates of the inappropriate contact she described, it could thus
have occurred either before or after the amendment.” Id. at 16. Therefore,
he claims the court should have applied the pre-amendment grading.
Second, Crittenden asserts the court erred in failing to provide the jury with
an instruction regarding “course of conduct,” which was a necessary factor in
grading the crime as a third-degree felony. Relying on Commonwealth v.
Surovcik, 933 A.2d 651 (Pa. Super. 2007), appeal denied, 951 A.2d 1163(Pa. 2008), he states the “lack of a jury instruction on course of conduct
negates consideration of that factor for sentencing purposes, and …
[Crittenden] should only be considered for a first-degree misdemeanor[.]”
Crittenden’s Brief at 21. Lastly, Crittenden contends “the classification of his
offense as a felony as opposed to a misdemeanor makes a great deal of
difference, especially considering the opprobrium that would attach to his
vocational and social status in the future.” Id.We begin with Crittenden’s ex post facto argument. It merits mention
Crittenden’s ex post facto claim was raised for the first time in his appellate
_______________________
(Footnote Continued)
annexed to the crime, when committed.’” Commonwealth v. Fleming,
801 A.2d 1234, 1237 (Pa. Super. 2002) (citation omitted), appeal denied,
906 A.2d 539 (Pa. 2006).
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brief before this Court. Normally, we would find the issue waived pursuant
to Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998), and its
progeny. See also Pa.R.A.P. 302. However, because Crittenden’s challenge
is to the legality of his sentence, it cannot be waived. See Commonwealth
v. Tustin, 888 A.2d 843, 845 (Pa. Super. 2005) (due process constitution
argument was not waived for failure to raise with trial court because it
involved grading of an offense which implicates the legality of the sentence,
a non-waivable sentencing issue).
Our standard of review is as follows.
A challenge to the legality of a sentence may be raised as a
matter of right, is not subject to waiver, and may be entertained
as long as the reviewing court has jurisdiction. If no statutory
authorization exists for a particular sentence, that sentence is
illegal and subject to correction. An illegal sentence must be
vacated. We can raise and review an illegal sentence sua sponte.
When we address the legality of a sentence, our standard of
review is plenary and is limited to determining whether the trial
court erred as a matter of law.
Commonwealth v. Borovichka, 18 A.3d 1242, 1254 n.8 (Pa. Super. 2011)
(internal citations and quotation marks omitted). “[T]he determination as to
whether the trial court imposed an illegal sentence is a question of law; our
standard of review in cases dealing with questions of law is plenary.”
Commonwealth v. Williams, 868 A.2d 529, 532 (Pa. Super. 2005), appeal
denied, 890 A.2d 1059 (Pa. 2005).
“A state law violates the ex post facto clause if it was adopted after the
complaining party committed the criminal acts and ‘inflicts a greater
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punishment than the law annexed to the crime, when committed.’”
Commonwealth v. Wall, 867 A.2d 578, 580 (Pa. Super. 2005), quoting
Commonwealth v. Fleming, 801 A.2d 1234, 1236 (Pa. Super. 2002)); see
also Commonwealth v. Vaughn, 770 A.2d 287, 289 n.2 (Pa. 2001).
Pertinent to this argument, Section 3126(b) “formerly read:
‘Grading.--Indecent assault under subsection (a)(7) is a misdemeanor of the
first degree. Otherwise, indecent assault is a misdemeanor of the second
degree.’” 18 Pa.C.S. § 3126, Amendment Notes. The statute was amended
on November 23, 2005, effective 60 days later on January 23, 2006 (“the
2005 amendment”). The 2005 amendment rewrote Subsection (b) to read
as follows:
(b) Grading. --Indecent assault shall be graded as follows:
(1) An offense under subsection (a)(1) or (8) is a misdemeanor
of the second degree.
(2) An offense under subsection (a)(2), (3), (4), (5) or (6) is a
misdemeanor of the first degree.
(3) An offense under subsection (a)(7) is a misdemeanor of the
first degree unless any of the following apply, in which case it is
a felony of the third degree:
(i) It is a second or subsequent offense.
(ii) There has been a course of conduct of indecent assault
by the person.
(iii) The indecent assault was committed by touching the
complainant’s sexual or intimate parts with sexual or
intimate parts of the person.
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(iv) The indecent assault is committed by touching the
person’s sexual or intimate parts with the complainant’s
sexual or intimate parts.
18 Pa.C.S. § 3126(b). Therefore, the 2005 amendment inflicted a greater
punishment upon those who committed indecent assault under Subsection
(a)(7) if any of the four exceptions to Subsection (b)(3) applied because it
raised the grading of the offense and consequently, the statutory maximum.
See Wall, supra.Here, the record reveals the following: The victim was born in 1997.
She testified Crittenden sexually assaulted her four times. She stated she
believed the first incident occurred in 2004 when she was seven years old
because that was “the earliest [she could] think back to.” N.T., 3/4/2013-
3/5/2013, at 38. The second and third assaults occurred subsequently but
the victim could not recall the date or how old she was at the time. Id. at
39, 44. With respect to the final incident, the victim did remember that it
occurred in 2007 when she was 10 years old and on the morning of her
sister’s birthday party. Id. at 50-51. The jury convicted Crittenden of two
counts of indecent assault. According to the trial court, and based on the
verdict slip,6 the second incident resulted in Crittenden’s conviction of
indecent assault (complainant less than 13 years of age) (third-degree
felony), under 18 Pa.C.S. § 3126(a)(7), and the fourth incident brought
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6
See Verdict of the Jury, 3/5/2013, at 1-2.
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about his conviction of indecent assault (without the consent of the other
person) (second-degree misdemeanor), under 18 Pa.C.S. § 3126(a)(1).
See Trial Court Opinion, 12/17/2013, at 9.
Therefore, for the jury to have found that Crittenden committed
indecent assault as third-degree felony, it had to have found that the second
incident of sexual assault took place after January 23, 2006, the date the
2005 amendment went into effect. The evidence, presented at trial, only
established that the first incident happened in 2004, prior to the
amendment, and the final assault occurred in 2007, after the amendment.
There was no testimony as to when the second incident occurred because
the victim could not recall any specific details regarding when the assault
took place. Nevertheless, the trial court utilized Subsection (b)(3)(ii) to
increase the grading of the crime, a subsection that may have been
implemented after Crittenden committed the convicted criminal conduct.7
In so doing, the trial court imposed an illegal sentence on Crittenden’s Count
12, indecent assault (person less than 13 years of age) conviction.
Accordingly, we are constrained to remand for re-sentencing.
We direct the court to amend Crittenden’s sentence to reflect the
difference in grading as Crittenden’s conviction should have been graded as
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7
Moreover, it bears mentioning the jury made no finding as to whether
there had been a course of conduct of indecent assault by Crittenden
pursuant to Subsection (b)(3)(ii).
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a first-degree misdemeanor. Nevertheless, our resolution of Crittenden’s ex
post facto issue does not upset the trial court’s sentencing scheme as the
parties stipulated that for the purposes of sentencing, the court would
impose a sentence based on an offense gravity score (“OGS”) of five, which
is the same OGS as a first-degree misdemeanor. See Trial Court Opinion,
12/17/2013, at 10.8
Accordingly, we vacate the judgment of sentence in part. The
sentence shall be amended to reflect Count 12, indecent assault (person less
than 13 years of age) as a grading of first-degree misdemeanor. The
remainder of the sentence is affirmed.
Judgment of sentence affirmed in part, without prejudice to pursue
ineffectiveness claims on collateral review, and vacated in part. Case
remanded for further proceedings consistent with this memorandum.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2014
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8
Furthermore, our conclusion renders Crittenden’s jury instruction and
societal opprobrium arguments moot.
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