Com. v. Adcock, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JOEL ADCOCK A/K/A JOEL MICHAEL
ADCOCK,
Appellant No. 1894 WDA 2014
Appeal from the Judgment of Sentence of October 28, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001197-2014 and
CP-02-CR-0005846-2013
BEFORE: SHOGAN, OLSON AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED JULY 24, 2015
Appellant, Joel Adcock, a/k/a Joel Michael Adcock, appeals from the
judgment of sentence entered on October 28, 2014, as made final by the
denial of Appellant’s post-sentence motion on November 6, 2014. We
affirm.
On August 4, 2014, Appellant pleaded guilty to one count of
aggravated assault, two counts of simple assault, and one count of
terroristic threats.1 During the guilty plea colloquy, the Commonwealth
recited the factual basis for Appellant’s plea:
Had the Commonwealth proceeded to trial on [docket
number CP-02-CR-0005846-2013,] the Commonwealth
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1
18 Pa.C.S.A. §§ 2702(a)(1), 2701(a)(1), and 2706(a)(1), respectively.
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would have called Detective Rich Usner, [] Detective Scott
Holzwarth, [] both from the Allegheny County Police
Department, as well as [L.S.] and [J.A.], who would have
testified that on March 28[,] 2013, the victim, [L.S.], who
was 62 at the time, was in her [own] apartment. It should
be noted that [Appellant] and his girlfriend lived above the
victim, Your Honor.
[L.S.] had her friend, [J.A.], visiting her from California.
While [J.A.] was staying with [L.S.], [L.S.] told the police
that on the morning of March 27, 2013, she complained to
her landlord that the neighbors were making too much noise
at odd hours. [L.S.] also told [Appellant’s] girlfriend, and
the girlfriend had told [L.S.] that she would talk to
[Appellant] and everything would be okay.
On the evening of March 27, 2013, [L.S.] would have
testified[, she] heard a loud knock on her door, opened the
door and that [Appellant] came in and grabbed her by the
throat, choked her and pulled her hair out, telling her that
he was angry and was going to kill her for telling on him.
[J.A.] would have testified that she tried to help her friend
and was struck several times and fell to the floor by
[Appellant]. [J.A.] was able to call 911 for help, and the
police did arrive, but [Appellant] was gone at that time.
[L.S.] was treated at UPMC Mercy Hospital, which she did
suffer significant injuries, which we would have provided the
hospital records from Mercy Hospital.
...
As to [docket number CP-02-CR-0001197-2014,] we would
again have called Detective Holzwarth and Detective Usner
from the Allegheny Police Department as well as Officer
Price and Officer Kidder from the McKees Rocks [P]olice
[D]epartment and [V.L.], who would have testified that on
January 10[, 2014, Appellant] was staying with [V.L.] while
he was on electronic monitoring awaiting his cases on the
[CP-02-CR-0005846-2013] case. They had been longtime
friends.
While [Appellant] was staying with [V.L.], he was angered
by one of her three children that had shot him with a toy
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dart. He became angry and screamed at her child. When
[V.L.] confronted [Appellant] about yelling at her child, she
told police he became enraged, yelled[ “d]on’t talk to me
like that,” picked her up, choked her and threw her down on
a wooden floor in the dining room.
[V.L.] then was able to call 911, and [Appellant] left during
this time. [V.L.] would have testified that she did get
medical treatment and did suffer minor injuries.
N.T. Guilty Plea, 8/4/14, at 5-7 and 8-9.
Following Appellant’s guilty plea, the Commonwealth provided
Appellant with notice that, in accordance with 42 Pa.C.S.A. § 9717, it
intended to seek the mandatory minimum sentence of two years’ total
confinement for Appellant’s aggravated assault conviction, as the victim of
the crime was more than 60 years of age (and Appellant was under 60 years
of age) at the time of the offense. Commonwealth’s Notice, 8/4/14, at 1;
see also 42 Pa.C.S.A. § 9717(a). In relevant part, Section 9717 declares:
§ 9717. Sentences for offenses against elderly
persons
(a) Mandatory sentence.--A person under 60 years of
age convicted of the following offenses when the victim is
over 60 years of age and not a police officer shall be
sentenced to a mandatory term of imprisonment as follows:
18 Pa.C.S.A. § 2702(a)(1) and (4) (relating to
aggravated assault)--not less than two years.
...
(b) Eligibility for parole.--Parole shall not be granted
until the minimum term of imprisonment has been served.
42 Pa.C.S.A. § 9717.
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Appellant proceeded to sentencing on October 28, 2014 and, during
the sentencing hearing, the Commonwealth requested that the trial court
impose the two-year mandatory minimum sentence, pursuant to Section
9717. See N.T. Sentencing, 10/28/14, at 17-18. However, during the
sentencing hearing, the trial court provided absolutely no indication that it
felt itself bound by the Commonwealth’s mandatory minimum request or
even that it took the statutory mandatory minimum sentencing term into
account as a factor in sentencing Appellant. Rather, during the hearing, the
trial court orally noted that the standard sentencing range for Appellant’s
aggravated assault conviction was 48 to 66 months in prison. N.T.
Sentencing, 10/28/14, at 3. The trial court then considered the sentencing
factors on the record and, after doing so, the trial court imposed upon
Appellant a standard-range sentence of five to ten years in prison for the
aggravated assault conviction.2 Specifically, the trial court stated on the
record at sentencing:
The court notes the presentence report has detailed
[Appellant’s] criminal history. He has a prior record score of
[two] out of four misdemeanor convictions. There are
summaries in his criminal activity – criminal history in the
presentence report.
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2
For Appellant’s two simple assault convictions and one terroristic threats
conviction, the trial court sentenced Appellant to serve three consecutive
terms of six to 12 months in prison, with the terms running consecutively to
the aggravated assault sentence. Thus, the trial court sentenced Appellant
to serve an aggregate term of six-and-a-half to 13 years in prison for the
four convictions.
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[The assistant district attorney] referenced [an earlier]
assault [Appellant committed] in 2007. It was eerily similar
to what occurred on this date where [Appellant] attacked
his girlfriend, grabbed her by the hair and threw her to the
floor and kicked her in the face and the back after the
victim had talked to her mother about [Appellant’s]
treatment of her. But, in any event, not exactly on all four
squares but, again, possessing similarities to the attack that
occurred here.
...
[T]he court undertakes, consistent with Title 42, a review
and consideration of [Appellant’s] background, which is not
necessarily a pleasant one and is detailed in the
presentence report, referred to in his letter to the court;
also the court made note of it in terms of him being abused
as a child and subject to an environment filled with alcohol
and physical assault.
This court also notes his mental health diagnosis and some
necessity for treatment within the health system, whether
that’s in a state penitentiary or at some point in time when
he’s released. The court again is taking those factors into
consideration, his statement of remorse and accountability,
incorporated by [Appellant’s attorney] today, expressed by
him in his letter.
The court is taking into account the statements made by
[the assistant district attorney] on behalf of the two victims
who are not here. The court notes that the second assault
– that is, the assault on [V.L.] – was one that occurred after
he was arrested and charged with the assaults on [L.S.] and
[J.A.]. In fact, taking him into the home with [V.L.], he
betrayed her confidence and trust in him.
The court notes the long-standing significant injuries to
[L.S.], detailed in the presentence report, repeated by her
today; and, of course, the psychological and emotional
impact of an unprovoked attack in which she could not
defend herself by virtue of her lack of physical prowess as
well as the surprise of that attack, similar in nature to [J.A.]
and [V.L.].
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The court is struck by the similarity of the 2007 attack in
which [Appellant] was sentenced and had ample
opportunity, at a minimum, to reflect upon that and change
his behavior on his own volition or resources of the court
system or the community. He never did that. In fact, [it
has] repeated itself and almost resulted in the death of
[L.S.] in this case in March of 2013.
The court again is taking into account the rehabilitative
needs of [Appellant], his history. The court also notes a
statutory obligation as to the impact of the crime on the
victims, the danger he may present to the community and
protection of the community. The court must place great
weight on the protection [of] the community and the danger
that he presents to the community.
Again, I’ve considered all factors in this matter, but in this
regard, the court believes that he is a danger to the
community and especially women in the community who he
has contact with, whether under the influence of alcohol or
not.
Consequently, the court will sentence him as follows: at the
aggravated assault as to [L.S.], he will be sentenced to a
period of incarceration of [five to ten] years. At the count
of simple assault as to [J.A.], he’ll be sentenced to a
consecutive period of incarceration of [six] to 12 months.
At the count of terroristic threats, he’ll be sentenced to a
consecutive period of incarceration of [six] to 12 months.
The aggregate sentence at that information, thus, is [six] to
12 years.
At the count of simple assault as to [V.L.], he’ll be
sentenced to a period of incarceration of [six] to 12 months
which will run consecutive to the period of incarceration
imposed at the earlier information. Thus, the aggregate
sentence on both informations is [six-and-a-half] to 13
years.
N.T. Sentencing, 10/28/14, at 18-23 (some internal capitalization omitted).
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On November 6, 2014, the trial court denied Appellant’s timely post-
sentence motion to withdraw his guilty plea and, on November 18, 2014,
Appellant filed a timely notice of appeal. Appellant raises one claim on
appeal:
Whether [Appellant’s] sentence is illegal where – in violation
of his right to jury trial under Article I, Section 9 of the
Pennsylvania Constitution and/or the Sixth and Fourteenth
Amendments to the United States Constitution – the
mandatory minimum sentence provision of 42 [Pa.C.S.A.]
§ 9717 was applied at Count 2 at CP-02-CR-0005846-2013
irrespective of any stipulation to a factual predicate
triggering application of said provision?
Appellant’s Brief at 4.
Stated another way, Appellant claims that the trial court sentenced
him to the mandatory minimum term of two years in prison for aggravated
assault, pursuant to the mandatory minimum sentencing statute at 42
Pa.C.S.A. § 9717. Appellant claims that his sentence for aggravated assault
is thus illegal, in accordance with the United States Supreme Court’s opinion
in Alleyne v. United States, ___ U.S. ___, ___ 133 S.Ct. 2151 (2013).
Appellant’s claim fails, as the trial court clearly did not sentence Appellant
under Section 9717. Therefore, since Section 9717 is inapplicable to
Appellant’s case, Appellant’s claim cannot succeed.
“Legality of sentence questions are not waivable and may be raised
sua sponte by this Court.” Commonwealth v. Watley, 81 A.3d 108, 118
(Pa. Super. 2013) (en banc). Further, “[i]ssues relating to the legality of a
sentence are questions of law. Our standard of review over such questions
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is de novo and our scope of review is plenary.” Commonwealth v. Ali, 112
A.3d 1210, 1225 (Pa. Super. 2015) (internal corrections omitted).
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States
Supreme Court held: “[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” Apprendi, 530 U.S. at 489. Further, in Alleyne, the United States
Supreme Court expanded “Apprendi’s basic jury-determination rule to
mandatory minimum sentences.” Alleyne, ___ U.S. at ___, 133 S.Ct. at
2167 (Breyer, J., concurring). Specifically, the Alleyne Court held that,
where an “aggravating fact” increases a mandatory minimum sentence, “the
fact is an element of a distinct and aggravated crime. [The fact] must,
therefore, be submitted to the jury and found beyond a reasonable doubt.”
Alleyne, 133 S.Ct. at 2162-2163.
Therefore, under Alleyne, Pennsylvania’s mandatory minimum
sentencing statutes were generally rendered unconstitutional insofar as the
statutes provided that: the “aggravating facts” contained in the statutes
were not elements of the crime; notice of either the “aggravating facts” or of
the applicability of the mandatory minimum sentencing statute was not
required prior to conviction; the applicability of the mandatory minimum
statute was to be determined at sentencing; the Commonwealth need only
prove the “aggravating facts” by a preponderance of the evidence; a judge –
and not a jury – was to act as the fact-finder for purposes of determining the
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“aggravated facts;” and, if the “sentencing court refuses to apply [the
mandatory minimum sentence] where applicable, the Commonwealth shall
have the right to appellate review of the actions of the sentencing court.”
See, e.g., 18 Pa.C.S.A. § 7508(b) and (d).3
In the case at bar, however, the trial court did not sentence Appellant
to the mandatory minimum sentence contained in 42 Pa.C.S.A. § 9717.
Certainly, as has been noted above, the trial court did not reference the
mandatory minimum statute once during the sentencing hearing and the
trial court did not declare that it believed it was required to sentence
Appellant to a mandatory minimum term.4 Instead, during the hearing, the
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3
We note that 42 Pa.C.S.A. § 9717 is written differently than the mandatory
minimum sentencing statutes that this Court construed and held
unconstitutional in cases such as Commonwealth v. Newman, 99 A.3d 86(Pa. Super. 2014) (en banc), Commonwealth v. Valentine, 101 A.3d 801(Pa. Super. 2014), and Commonwealth v. Wolfe, 106 A.3d 800 (Pa.
Super. 2014) and that our Supreme Court interpreted and held
unconstitutional in Commonwealth v. Hopkins, ___ A.3d ___, 98 MAP
2013 (Pa. 2015). Specifically, Section 9717 does not contain any provision
explicitly declaring that: the “aggravating facts” contained in the statutes
were not elements of the crime; notice of either the “aggravating facts” or of
the applicability of the mandatory minimum sentencing statute was not
required prior to conviction; the applicability of the mandatory minimum
statute was to be determined at sentencing; the Commonwealth need only
prove the “aggravating facts” by a preponderance of the evidence; a judge –
and not a jury – was to act as the fact-finder for purposes of determining the
“aggravated facts;” and, if the “sentencing court refuses to apply [the
mandatory minimum sentence] where applicable, the Commonwealth shall
have the right to appellate review of the actions of the sentencing court.”
See, e.g., 18 Pa.C.S.A. § 7508(b) and (d).
4
Appellant’s sentencing hearing took place on October 28, 2014 – over one
month after this Court decided Commonwealth v. Newman, 99 A.3d 86(Footnote Continued Next Page)
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trial court orally summarized the totality of facts that led it to sentence
Appellant to a standard-range term of five to ten years in prison. Further,
we observe that: the trial court’s written sentencing order does not declare
that it imposed a mandatory minimum sentence; the written sentencing
guideline form declares that the trial court imposed a “standard range”
sentence and, in the box where the court is required to specify the
defendant’s “mandatory minimum” sentence, the court left the box blank
(thus indicating that the trial court did not impose a mandatory minimum
sentence); and, Appellant’s commitment papers specifically declare that
Appellant did not receive a mandatory minimum sentence. Sentencing
Order, 10/28/14, at 1; Sentencing Guideline Form, 10/28/14, at 1; Court
Commitment, 11/4/14, at 1. Moreover, within the trial court’s opinion to
this Court, the trial court specifically stated that the mandatory minimum
sentencing term contained in Section 9717 was not considered even as a
_______________________
(Footnote Continued)
(Pa. Super. 2014) (en banc) (filed August 20, 2014). In Newman, an en
banc panel of this Court considered the mandatory minimum sentencing
statute at 42 Pa.C.S.A. § 9712.1 and held that the unconstitutional portions
of the statute were not severable from the remainder of the statute.
Therefore, Newman held that Section 9712.1 was unconstitutional in its
entirety. We note that, given our holding in Newman, the trial court might
have refused to apply 42 Pa.C.S.A. § 9717 because it believed that the
statute was also unconstitutional in its entirety. However, as a result of our
current holding, we express no opinion on the constitutionality of Section
9717.
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sentencing factor when the trial court constructed Appellant’s sentence.5
Trial Court Opinion, 3/5/15, at 10. As the trial court explained:
The trial court considered the sentencing guidelines, the
presentence report, a letter from Appellant detailing
remorse and accountability for his actions, Appellant’s
childhood, Appellant’s mental health diagnosis and necessity
for treatment, testimony from the victim, photographs of
the victim taken at the emergency room immediately
following the assault, the victim’s inability to defend herself
against the unprovoked attack, the victim’s long-standing
significant injuries, the similarities to an attack by Appellant
against his girlfriend in 2007, and Appellant’s failure to
rehabilitate himself after being sentenced on the 2007
assault. After reviewing these factors, the trial court
imposed a sentence of five to ten years because “the court
believes that he is a danger to the community and
especially women in the community who he was contact
with, whether under the influence of alcohol or not.”
Trial Court Opinion, 3/5/15, at 12 (some internal capitalization omitted).
Finally, in Commonwealth v. Zeigler, this Court explicitly held that –
where a mandatory minimum sentencing statute exists for a crime, but
where the sentencing court exceeds the mandatory minimum term by
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5
We note that, even if the trial court viewed Section 9717 as a sentencing
factor (which it did not), Appellant’s sentence would still not be illegal.
Indeed, had the trial court viewed Section 9717 as a sentencing factor, the
application would merely implicate the discretionary aspects of Appellant’s
sentence. See Commonwealth v. Rhodes, 990 A.2d 732, 744 (Pa. Super.
2009) (holding: a claim that the trial court relied upon impermissible factors
at sentencing is a challenge to the discretionary aspects of a sentence).
However, Appellant has not raised a discretionary aspects of sentencing
claim on appeal. As such, even if the trial court relied upon Section 9717 as
a sentencing factor in this case, Appellant’s current claim on appeal (wherein
Appellant claims only that his sentence is illegal) would still fail.
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applying a standard guideline range sentence – the trial court has not
“sentence[d] the defendant based on the mandatory statute, and [the
defendant’s] sentence is not illegal on that ground.” Commonwealth v.
Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015). Specifically, in Zeigler, we
held:
we are aware that a mandatory minimum statute exists for
[the defendant’s] aggravated assault crime since he
admitted to visibly possessing a firearm during its
commission. 42 Pa.C.S.A. § 9712. Based on decisions from
this Court, imposing such a mandatory is illegal. However,
the sentencing court exceeded the mandatory
minimum sentence when it applied the standard
guideline range sentence where a deadly weapon was
used. Hence, the court did not sentence the
defendant based on the mandatory statute, and his
sentence is not illegal on that ground.
Id. (emphasis added).
Therefore, since the trial court did not impose a mandatory minimum
sentence in this case, Appellant’s claim that his sentence is illegal is
baseless. The claim thus fails.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2015
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