Com. v. Thompson, R. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RICKY WAYNE THOMPSON
Appellant No. 958 MDA 2016
Appeal from the Judgment of Sentence May 11, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0001137-2014
BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*
MEMORANDUM BY MOULTON, J.: FILED SEPTEMBER 21, 2017
Ricky Wayne Thompson appeals from the May 11, 2016 judgment of
sentence entered in the Berks County Court of Common Pleas following his
jury trial convictions for intimidation of witnesses or victims (refrain from
reporting), endangering the welfare of children, corruption of minors (sexual
conduct), indecent assault (victim less than 13 years old), and indecent
exposure.1 We affirm.
On September 16, 2015, a jury convicted Thompson of the
aforementioned offenses. After the trial court excused the jury, the
Commonwealth stated on the record that Thompson had “a prior conviction
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 4952(a)(1), 4304(a)(1), 6301(a)(1)(ii), 3126(a)(7),
and 3127(a), respectively.
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from the State of New Jersey for possession of child pornography” and that
it would “be filing written notice in the near future for the applica[tion] of the
25 years mandatory [minimum sentence] for [a] prior sexual offense.” N.T.,
9/16/15, at 245. On September 17, 2015, the Commonwealth filed written
notice that it would be seeking 25-year mandatory minimum sentences for
Thompson’s convictions for corruption of minors and indecent assault
pursuant to section 9718.2 of the Sentencing Code2 based on a prior
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2
Section 9718.2 of the Sentencing Code provides, in pertinent part:
(a) Mandatory sentence.--
(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 . . .
...
(c) Proof of sentencing.--The provisions of this
section shall not be an element of the crime, and
notice thereof to the defendant shall not be
required prior to conviction, but reasonable notice
of the Commonwealth’s intention to proceed
(Footnote Continued Next Page)
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conviction of an offense set forth under section 9799.14 of the Sexual
Offenders Registration and Notification Act (“SORNA”) “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.”
Cmwlth.’s Not. of Intent, 9/17/15. The notice did not specifically reference
either the New Jersey conviction or New Jersey law.
_______________________
(Footnote Continued)
under this section shall be provided after
conviction and before sentencing. The
applicability of this section shall be determined at
sentencing. The sentencing court, prior to
imposing sentence on an offense under subsection
(a), shall have a complete record of the previous
convictions of the offender, copies of which shall
be furnished to the offender. If the offender or
the attorney for the Commonwealth contests the
accuracy of the record, the court shall schedule a
hearing and direct the offender and the attorney
for the Commonwealth to submit evidence
regarding the previous convictions of the
offender. The court shall then determine, by a
preponderance of the evidence, the previous
convictions of the offender and, if this section is
applicable, shall impose sentence in accordance
with this section. Should a previous conviction be
vacated and an acquittal or final discharge
entered subsequent to imposition of sentence
under this section, the offender shall have the
right to petition the sentencing court for
reconsideration of sentence if this section would
not have been applicable except for the conviction
which was vacated.
42 Pa.C.S. § 9718.2.
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At sentencing on May 11, 2016, the Commonwealth introduced a
three-page document that it represented to be a copy of Thompson’s New
Jersey judgment of conviction for possession of child pornography.
Thompson’s counsel objected to its admission arguing that section 5328(a)
of the Judicial Code requires that the document be sealed and, because the
document did not contain a seal, it was inadmissible. The Commonwealth
argued that the signature affixed by a Special Deputy Clerk of the New
Jersey Superior Court met the requirements of section 5328(a).
Thompson also argued that the Commonwealth failed to provide him
written notice that New Jersey law would be at issue at sentencing in
violation of section 5327(a) of the Judicial Code. Accordingly, Thompson
objected to the Commonwealth’s introduction of the New Jersey statute
under which he was allegedly convicted. The Commonwealth responded that
Thompson was “notified by the Commonwealth at the time [it] filed [its]
notice that [it] was intending on using [the] New Jersey statute.” N.T.,
5/11/16, at 24. The trial court agreed with the Commonwealth on both
issues and admitted the document.
The trial court imposed the 25-year mandatory minimum sentences
pursuant to section 9718.2 for corruption of minors and indecent assault
based on the New Jersey conviction. These sentences were imposed
concurrent to each other and concurrent to the sentences imposed for
Thompson’s other convictions, resulting in an aggregate sentence of 25 to
50 years’ incarceration.
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On May 23, 2016, Thompson filed a post-sentence motion, arguing
that: the predicate conviction that triggered the mandatory minimum
sentences was established by inadmissible evidence under section 5328 and
Pennsylvania Rule of Evidence 902(1); and the Commonwealth failed to
provide him written notice that New Jersey law would be at issue at
sentencing as required by section 5327 of the Judicial Code. On May 24,
2016, the trial court denied Thompson’s motion. On June 15, 2016,
Thompson timely filed a notice of appeal.
Thompson raises the following issues on appeal:
A. Whether the case should be remanded to
supplement the sufficiency of the evidence claim?
B. Whether the Lower Court erroneously admitted
evidence to support the [m]andatory sentence at the
sentencing hearing, namely:
a. An unsealed foreign record that purportedly
demonstrated an out of state conviction of
[Thompson].
b. Taking judicial notice of an out of state statute
contrary to Pennsylvania law, when that
statute post-dated [Thompson]’s purported out
of state conviction.
c. The Lower Court accepted an incomplete
record of [Thompson]’s prior conviction,
contrary to the [m]andatory statute.
C. Whether the [m]andatory [s]entence was unlawful
for the following reasons:
a. The mandatory notice was legally insufficient in
that it failed to provide [Thompson] with
sufficient notice of the predicate offense.
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b. The mandatory [sentence] is contrary to
Alleyne [v. United States, 133 S. Ct. 2151
(2013)] and a violation of due process under
the [United States] and Pennsylvania
Constitutions.
Thompson’s Br. at 4-5 (suggested and trial court answers omitted).
I. Sufficiency Claims
A. Supplemental 1925(b) Statement
First, Thompson argues that the trial court erred in denying his
petition to supplement his Rule 1925(b) statement after counsel’s receipt of
the trial transcripts.
On June 15, 2016, when counsel filed Thompson’s notice of appeal, he
simultaneously petitioned the trial court to waive appeal fees as Thompson
was petitioning to proceed in forma pauperis (“IFP”). Thompson asserts
that, in Berks County, transcript requests cannot be processed unless
accompanied by a 50% deposit or the petitioner has been granted leave to
proceed IFP. Thompson states that although the trial court scheduled an IFP
hearing for July 6, 2016, it granted Thompson IFP status on June 16, 2016.
Counsel claims he did not receive notice of the IFP status until late June.
When Thompson filed his Rule 1925(b) statement on July 6, 2016, he
simultaneously filed a request for transcripts and a petition to supplement
the 1925(b) statement upon receipt of the transcripts. The trial court denied
Thompson’s petition.
Thompson argues that “[he] should have [had] the opportunity to
review the relevant court transcripts before having to commit to a final
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version of a [Rule] 1925[(b)] concise statement,” and that he showed good
cause for the filing of a supplemental statement.3 Thompson’s Br. at 12.
We disagree.
When a trial court orders an appellant to file a Rule 1925(b)
statement, Rule 1925(b)(2) provides the appellant 21 days in which to file a
statement of errors complained of on appeal. However,
[u]pon application of the appellant and for good cause
shown, the judge may enlarge the time period initially
specified or permit an amended or supplemental
[s]tatement to be filed. Good cause includes, but is not
limited to, delay in the production of a transcript necessary
to develop the [s]tatement so long as the delay is not
attributable to a lack of diligence in ordering or paying for
such transcript by the party or counsel on appeal. In
extraordinary circumstances, the judge may allow for the
filing of a [s]tatement or amended or supplemental
[s]tatement nunc pro tunc.
Pa.R.A.P. 1925(b)(2). The comment to Rule 1925(b)(2) provides further
guidance:
This paragraph extends the time period for drafting the
Statement from 14 days to at least 21 days, with the trial
court permitted to enlarge the time period or to allow the
filing of an amended or supplemental Statement upon
good cause shown. In Commonwealth v. Mitchell, . . .
902 A.2d 430, 444 ([Pa.] 2006), the [Supreme] Court
expressly observed that a Statement filed “after several
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3
Thompson asserts that the trial court denied his petition to
supplement the Rule 1925(b) statement because it “was long enough
already,” and, as a part of the reproduced record, Thompson submits an
order with a note under the trial judge’s signature that states, “C.S. seems
long enough!” R.R. at P157. However, the copy of this order that appears
in the certified record does not contain this note. See Order, 7/7/16.
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extensions of time” was timely. An enlargement of time
upon timely application might be warranted if, for
example, there was a serious delay in the transcription of
the notes of testimony or in the delivery of the order to
appellate counsel. A trial court should enlarge the time or
allow for an amended or supplemental Statement when
new counsel is retained or appointed. A supplemental
Statement may also be appropriate when the ruling
challenged was so non-specific--e.g. “Motion Denied”--that
counsel could not be sufficiently definite in the initial
Statement.
Pa.R.A.P. 1925, cmt. In addition, the Rule provides the trial court discretion
in allowing an appellant to file supplemental 1925(b) statements. See id.
Here, because appellate counsel also represented Thompson at trial,
counsel should have known the specific elements that Thompson sought to
challenge through a sufficiency claim when he filed the Rule 1925(b)
statement. Moreover, counsel requested an extension of time to review the
transcripts and determine whether there were “other meritorious issues” for
appeal; he did not seek an extension of time to clarify Thompson’s
sufficiency claim. Under these circumstances, we conclude that the trial
court did not abuse its discretion in denying Thompson’s petition to file a
supplemental Rule 1925(b) statement.
B. Waiver of Sufficiency Claims
Because we conclude that the trial court did not abuse its discretion in
denying Thompson’s petition to file a supplemental 1925(b) statement, we
must now determine whether Thompson has waived his sufficiency claims on
appeal. It is well settled that “when challenging the sufficiency of the
evidence on appeal, the [a]ppellant’s [Rule] 1925[(b)] statement must
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specify the element or elements upon which the evidence was insufficient in
order to preserve the issue for appeal.” Commonwealth v. Gibbs, 981
A.2d 274, 281 (Pa.Super. 2009) (internal quotation omitted). “Such
specificity is of particular important in cases where . . . the [a]ppellant was
convicted of multiple crimes each of which contains numerous elements that
the Commonwealth must prove beyond a reasonable doubt.” Id.
We conclude that Thompson has waived his sufficiency claims. In his
Rule 1925(b) statement, Thompson merely contended that “[t]he alleged
victim did not provide testimony to establish . . . indecent assault, indecent
exposure, endangering the welfare of a child or corruption of minors.”
1925(b) Stmt., 7/6/16, ¶ 1. Thompson failed to delineate which elements of
which offenses he sought to challenge, thereby hampering our review of the
sufficiency claims.4
II. Evidence of New Jersey Conviction
Next, Thompson argues that the trial court improperly admitted a
purported out-of-state conviction as evidence at sentencing. “Questions
concerning the admissibility of evidence are ‘within the sound discretion of
the trial court . . . [and] we will not reverse a trial court’s decision
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4
While we recognize and appreciate the trial court’s analysis of the
sufficiency of the evidence in its Rule 1925(a) opinion, we must uniformly
apply the commands of Rule 1925 to put appellants on notice as to what the
Rule requires.
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concerning admissibility of evidence absent an abuse of the trial court’s
discretion.’” Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa.Super.
2014) (quoting Commonwealth v. Brown, 52 A.3d 1139, 1197 (Pa.
2012)).
Thompson contends that the trial court erred in admitting the
conviction as evidence at his sentencing hearing because the document did
not contain a seal. According to Thompson, section 5328 of the Judicial
Code requires that his out-of-state conviction document be sealed and,
because the conviction document was not sealed, it was not self-
authenticating under Pennsylvania Rule of Evidence 902. The trial court
concluded that the conviction was admissible, stating that it was “in fact
under seal” and “certified by the Clerk in Ocean County, New Jersey Superior
Court.” N.T., 5/11/16, at 6.
We are constrained to agree with Thompson that the certified copy of
his out-of-state conviction did not contain a “seal” within the meaning of
section 5328. Section 5328 provides that
[a]n official record kept within the United States, or any
state, district, commonwealth, territory, insular possession
thereof, . . . when admissible for any purpose, may be
evidenced by an official publication thereof or by a copy
attested by the officer having the legal custody of the
record, or by his deputy, and accompanied by a certificate
that the officer has the custody. The certificate may be
made by a judge of a court of record having jurisdiction in
the governmental unit in which the record is kept,
authenticated by the seal of the court, or by any public
officer having a seal of office and having official duties in
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the governmental unit in which the record is kept,
authenticated by the seal of his office.
42 Pa.C.S. § 5328(a). This Court has noted that an official seal is a
technical requirement. See Commonwealth v. Smith, 563 A.2d 905
(Pa.Super. 1989). In Smith, this Court examined whether a court-martial
conviction before the United States Army was a prior conviction for the
purposes of section 9714 of the Sentencing Code.5 Id. at 909. We
concluded that a copy of the court-martial conviction that “was duly certified
as being a true and correct copy by the Clerk of Court, U.S. Army Judiciary,
U.S. Army Legal Services Agency, who is the official custodian of the
records, and that bore the seal of the U.S. of America War Office” was
properly authenticated under section 5328. Id. In addition, in a drivers’
license suspension case, the Commonwealth Court similarly indicated that
the presence of an official seal was necessary for authentication under
section 5328. See, e.g., Rhoads v. Commonwealth, 620 A.2d 659, 662
n.2 (Pa.Cmwlth. 1993) (holding that “seal so faint as to be unreadable”
prevented Court from determining whether licensee’s record was admissible
under section 5328).6
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5
Section 9714 of the Sentencing Code requires trial courts to apply
mandatory minimum sentence where an offender is convicted of a crime of
violence and, “at the time of the commission of the current offense . . . had
previously been convicted of crime of violence.” 42 Pa.C.S. § 9714(a)(1).
6
We are not bound by decisions of the Commonwealth Court, but
“such decisions provide persuasive authority, and we may turn to our
(Footnote Continued Next Page)
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Here, the Commonwealth introduced Thompson’s prior conviction 7 at
sentencing. M.E. Hosler, Special Deputy Clerk of the New Jersey Superior
Court, Ocean County Vicinage, certified, in writing, that the document is a
true copy of Thompson’s judgment of conviction. Hosler’s signature appears
on the first page of the document. A judge’s signature appears on the
second page of the document after the imposition of sentence, dated August
29, 2008. This document, however, contains no seal or equivalent stamp or
impression by the New Jersey court.8 As such, the Commonwealth did not
meet the technical requirement of a “seal” under section 5328.
_______________________
(Footnote Continued)
colleagues on the Commonwealth Court for guidance when appropriate.”
Maryland Cas. Co. v. Odyssey, 894 A.2d 750, 756 n.2 (Pa.Super. 2006).
Following Rhoads, the General Assembly amended section 1550 of the
Vehicle Code. See Mackall v. Commonwealth Dep’t of Transp., Bureau
of Driver Licensing, 680 A.2d 31, 34 (Pa.Cmwlth. 1996). Under section
1550(d), “the Department [of Transportation] is no longer required to
comply with the evidentiary rules set forth in [s]ection 5328(a) of the
[Judicial Code].” Id.
7
Initially, the certified record contained only a photocopy of the prior
conviction. On July 25, 2017, we ordered the trial court to supplement the
record with the original document introduced at the May 11, 2016
sentencing hearing. The trial court provided the document to this Court on
August 2, 2017.
8
Our research reveals no case law addressing what type of mark
constitutes a “seal” under section 5328 of the Judicial Code. Black’s Law
Dictionary defines “seal” as: “A design embossed or stamped on paper to
authenticate, confirm, or attest; an impression or sign that has legal
consequence when applied to an instrument.” Black’s Law Dictionary 1550
(10th ed. 2014). However, because Thompson’s purported conviction
document contains no mark or stamp that remotely resembles a “seal,” we
(Footnote Continued Next Page)
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We conclude, however, that the trial court did not abuse its discretion
in admitting the conviction document. First, Thompson makes no claim now
that he was not convicted of possession of child pornography in New Jersey.
Nor did he make such a claim at the sentencing hearing. His argument goes
only to the technical absence of a seal. Second, Thompson admitted to a
prior conviction for possession of child pornography. He did so on a
preliminary arraignment form that was used to help the magisterial district
court set an appropriate bail amount. While the arraignment form says
“2005-Child Pron [sic]” and Thompson’s judgment of conviction in New
Jersey shows he was arrested in 2006 and convicted in 2008, Thompson has
not asserted that he was not actually convicted of possession of child
pornography. Further, a special deputy clerk of the Superior Court of New
Jersey attested to the document’s authenticity. In other words, there was
no suggestion that the conviction document was not authentic, and the lack
of a seal on the New Jersey judgment of conviction was merely a technical
defect. Under these circumstances, we conclude that the trial court did not
abuse its broad discretion in admitting the conviction. Therefore, Thompson
is not entitled to relief.
III. Notice of New Jersey Law
_______________________
(Footnote Continued)
need not address in further detail what constitutes a “seal” under section
5328.
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Thompson also argues that the Commonwealth did not provide him
with proper notice under section 5327 of the Judicial Code that New Jersey
law would be at issue at sentencing.
Section 5327 permits “a court [to] take judicial notice of the law of any
jurisdiction outside the Commonwealth of Pennsylvania.” Commonwealth
v. Manley, 985 A.2d 256, 271 (Pa.Super. 2009). However, section 5327
requires that “[a] party who intends to raise an issue concerning the law of
any jurisdiction or governmental unit thereof outside this Commonwealth
shall give notice in his pleadings or other reasonable written notice.” 42
Pa.C.S. § 5327(a). The purpose of section 5327 is to warn an opposing
party that the law of another jurisdiction is at issue such that the opposing
party may prepare on that law. Minnick v. Scheffy, 65 Pa.D.&C. 1, 7
(Pa.Com.Pl. 1949).
In Manley, the appellant had asked the trial court to take judicial
notice of the federal Sentencing Guidelines while cross-examining a
Commonwealth witness; the witness agreed to testify against the appellant
in exchange for a reduction in sentence in an unrelated federal case in which
the witness pled guilty. 985 A.2d at 271. The trial court denied the request,
and we affirmed, noting that the trial court correctly denied the request
because defense counsel failed to “provide written notice of her intent to use
the . . . Guidelines.” Id.
Here, the Commonwealth sought to introduce a copy of the statute on
which Thompson was allegedly convicted in New Jersey, but only provided
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oral notice to Thompson in court after the verdict. The Commonwealth
neither mentioned New Jersey law in its written notice pursuant to section
9718.2 nor filed a separate written notice stating that it would be using New
Jersey law at sentencing. Because the plain language of section 5327
requires written notice and section 9718.2 requires the trial court to
determine whether the offense from another jurisdiction is equivalent to a
SORNA offense, see 42 Pa.C.S. § 9718.2, we conclude that the
Commonwealth failed to comply with section 5327 of the Judicial Code.
Despite this violation, however, we conclude that the Commonwealth’s
failure to provide written notice of the applicability of the New Jersey statute
did not prejudice Thompson because he had actual notice that the New
Jersey statute would be at issue and ample time to prepare a defense. We
recognize that constructive notice has not been applied to violations of
section 5327. However, in the context of sentencing, Pennsylvania courts
have ruled that some formal notice violations were harmless error where the
Commonwealth provided the defendant constructive notice of the issue and
the defendant was not prejudiced by the lack of formal notice. See, e.g.,
Commonwealth v. Hairston, 84 A.3d 657, 675-77 (Pa. 2014) (finding no
abuse of discretion where trial court permitted jury to consider death penalty
aggravator, where Commonwealth had not given formal notice that
particular death penalty aggravator would be at issue, because
Commonwealth gave constructive notice and defendant was not prejudiced);
Commonwealth v. Wesley, 753 A.2d 204, 210-16 (Pa. 2000) (same).
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We reject Thompson’s claim that he lacked notice that the New Jersey
statute would be at issue. Thompson’s arraignment information sheet
specifically lists a prior conviction in 2005 for “Child Pron [sic].”
Arraignment Information, 1/29/14. In addition, after the jury returned its
verdict, the Commonwealth stated on the record that it would be filing a
notice of intent to seek a mandatory minimum sentence under section
9718.2 based on Thompson’s prior conviction for possession of child
pornography in New Jersey. N.T., 9/16/15, at 245.
We also conclude that Thompson was not prejudiced by the lack of
written notice. At sentencing, Thompson did not argue that he had not been
convicted of possession of child pornography in New Jersey or that the New
Jersey conviction was not equivalent to a SORNA offense. Instead,
Thompson argued that the Commonwealth improperly presented to the trial
court an amended version of the possession of child pornography statute,
which was not in effect at the time of his conviction. N.T., 5/11/16, at 1-8.
It is clear that Thompson not only had notice that the New Jersey statute
would be at issue, but his counsel also had adequate time to, and in fact did,
address the New Jersey statute at sentencing. Under these circumstances,
we conclude that Thompson received adequate notice.
IV. Complete Record of Prior Convictions
Next, Thompson asserts that the trial court erred in imposing a
mandatory minimum sentence under section 9718.2 of the Sentencing Code
because it did not “have a complete record of [his] previous convictions . . .
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prior to imposing sentence[.]” 42 Pa.C.S. § 9718.2. According to
Thompson, the phrase “complete record” shows that “the legislature wanted
to be sure that a sentencing court knew about every aspect of a predicate
conviction.” Thompson’s Br. at 20. Thus, Thompson asserts that the
conviction document is not a complete record of the prior conviction, as it is
“merely . . . a summary of a conviction” that does not contain the charging
documents, guilty plea colloquy, or transcripts. Id. We disagree.
We apply the following standard of review to a question of statutory
interpretation:
Statutory interpretation is a question of law, therefore
our standard of review is de novo, and our scope of review
is plenary. In all matters involving statutory
interpretation, we apply the Statutory Construction Act, 1
Pa.C.S. §[§] 1501[-04], which provides that the object of
interpretation and construction of statutes is to ascertain
and effectuate the intention of the General Assembly.
Generally, a statute’s plain language provides the best
indication of legislative intent. We will only look beyond
the plain language of the statute when words are unclear
or ambiguous, or the plain meaning would lead to “a result
that is absurd, impossible of execution or unreasonable.”
1 Pa.C.S. § 1922(1). Therefore, when ascertaining the
meaning of a statute, if the language is clear, we give the
words their plain and ordinary meaning.
Commonwealth v. Popielarcheck, 151 A.3d 1088, 1091-92 (Pa.Super.
2016) (some internal citations and quotations omitted).
The plain meaning of the phrase “complete record” in section 9178.2 is
obvious from its context — the General Assembly intended for the
sentencing court to have a complete listing of the offender’s prior convictions
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for sex offenses to determine whether the mandatory minimum sentence is
applicable. Imposition of a mandatory minimum sentence under section
9718.2 requires only that the offender have a prior conviction for a SORNA
offense or SORNA-equivalent offense from another jurisdiction. 42 Pa.C.S. §
9718.2(a)(1). Therefore, Thompson’s implication that the phrase “complete
record” means the entire case file of a sex offense conviction is untenable
because the trial court need only know that the offender has been convicted.
In addition, subsection (d) of section 9718.2 requires the trial court to
impose the mandatory minimum sentence if the offender has a prior
conviction for a SORNA offense or a SORNA-equivalent offense. See 42
Pa.C.S. § 9718.2(d) (“There shall be no authority in any court to impose on
an offender to which this section is applicable any lesser sentence than
provided for in subsections (a) and (b) or to place the offender on probation
or to suspend sentence.”). Accordingly, whether the trial court had
Thompson’s complete case file from the prior conviction was irrelevant
because the trial court lacked discretion in imposing the mandatory
minimum sentence.
V. Illegality of Sentence
Finally, Thompson argues that his sentence is illegal for two reasons.
First, Thompson asserts that the Commonwealth’s notice of intent to seek a
mandatory minimum sentence under section 9718.2 of the Sentencing Code
was insufficient, as it failed to give him information on his predicate
conviction. Second, Thompson argues that section 9718.2 is an illegal
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sentencing scheme under Alleyne v. United States, 133 S. Ct. 2151
(2013).
A. Section 9718.2 Notice
Thompson argues that his sentence is illegal because the
Commonwealth’s written notice did not mention any specific predicate
conviction that would trigger the mandatory minimum sentence under
section 9718.2. According to Thompson, the “[n]otice provided was
completely generic and made no mention of [Thompson]’s instant conviction
or what the Commonwealth believe[d] the prior conviction to be.”
Thompson’s Br. at 22. We disagree.
Section 9718.2(c) of the Sentencing Code requires that “notice thereof
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.” 42 Pa.C.S. §
9718.2(c). While neither the Pennsylvania Supreme Court nor this Court has
examined what constitutes “reasonable notice” under this section, this
language is identical to the notice provision provided in section 9714(a)(1)
of the Sentencing Code, which requires the imposition of a mandatory
minimum sentence for a crime of violence where “at the time of the
commission of the current offense the person had previously been convicted
of a crime of violence.” 42 Pa.C.S. § 9714(a)(1). In a case involving the
applicability of section 9714, this Court concluded that the Commonwealth
gave reasonable notice where it (1) gave written notice in the bill of
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information that, if convicted of the crime of violence charged, it would be
seeking a mandatory minimum sentence under section 9714, and (2)
“verbally indicated on the record at the sentencing hearing its intent to
pursue a mandatory sentence under section 9714 and described the two
prior convictions for violent crimes.” Commonwealth v. Norris, 819 A.2d
568, 574-75 (Pa.Super. 2003).9 The trial court in Norris concluded that the
Commonwealth’s notice was misleading because it did not state whether the
Commonwealth sought imposition of the “two strikes” or “three strikes”
provision of section 9714(a). Id. at 574. We concluded that the
Commonwealth gave the appellant “reasonable notice” that “‘encapsulated
all relevant provisions’ of section 9714.” Id. (quoting Commonwealth v.
Vasquez, 744 A.2d 1280, 1283 (Pa. 2000)).
Here, the Commonwealth provided Thompson two forms of notice.
First, immediately following Thompson’s conviction, the Commonwealth
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9
The bill of information provided:
Notice is hereby given that should defendant be convicted
of aggravated assaulting for having intentionally,
knowingly, or recklessly caused serious bodily injury to
another under circumstances manifesting extreme
indifference to the value of human life, the Commonwealth
will proceed under 42 Pa.C.S. § 9714 (concerning
sentences for second and subsequent offenses) and seek
the imposition of a mandatory sentence in accordance
therewith.
Norris, 819 A.2d at 574.
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stated on the record that it would be filing a notice of intent to seek
mandatory minimum sentences under section 9718.2 based upon
Thompson’s prior conviction for possession of child pornography in New
Jersey. Second, the day after Thompson was convicted, the Commonwealth
filed, and served on Thompson, a written notice of its intent to seek
mandatory minimum sentences on Thompson’s convictions for corruption of
minors and indecent assault:
TO DEFENDANT:
AND NOW, this 17th day of September, 2015, the
Commonwealth of Pennsylvania, by and through Margaret
McCallum, Assistant District Attorney, hereby advises the
Defendant, Ricky Wayne Thompson, of its intention to
invoke the mandatory minimum sentence provisions of 42
Pa.C.S. § 9718.2 as follows:
1. 42 Pa.C.S. §[]9718.2(a)(1) (Sentences for sexual
offenders), requiring a minimum sentence of at least
twenty-five (25) years incarceration for committing
the crime of Corruption of Minors, 18 Pa.C.S.
§[]6301(a)(1)(ii) as it applies to Count 4 of the
information when at the time of the commission of
the current offense had previously been convicted of
an offense set forth in section 42 Pa.C.S. §[]9799.14
(Sexual Offenses and tier system) or an equivalent
crime under the laws of this Commonwealth in effect
at the time of that offense or an equivalent crime in
another jurisdiction.
2. 42 Pa.C.S. §[]9718.2(a)(1) (Sentences for sexual
offenders), requiring a minimum sentence of at least
twenty-five (25) years incarceration for committing
the crime of Indecent Assault, 18 Pa.C.S.
§[]3127(a)(7) as it applies to Count 5 of the
information when at the time of the commission of
the current offense had previously been convicted of
an offense set forth in section 42 Pa.C.S. §[]9799.14
(Sexual Offenses and tier system) or an equivalent
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crime under the laws of this Commonwealth in effect
at the time of that offense or an equivalent crime in
another jurisdiction.
Cmwlth.’s Not. of Intent, 9/17/15, at 1-2. Similar to Norris, the
Commonwealth not only gave Thompson written notice of its intent to seek a
mandatory minimum sentence based upon section 9178.2, but also orally
stated to both the trial court and Thompson that invocation of section
9718.2 was based upon his prior New Jersey conviction. Therefore, we
conclude that Thompson received reasonable notice as required by section
9718.2.
B. Alleyne Claim
Finally, Thompson argues that his mandatory minimum sentence
under section 9718.2 is illegal pursuant to Alleyne v. United States, 133
S. Ct. 2151 (2013). Thompson recognizes that Alleyne does not upset
sentencing schemes that require only proof of a prior conviction, but argues
that section 9718.2 requires more because “the . . . [c]ourt is required to
make a factual determination as to whether the New Jersey crime is an
equivalent crime in another jurisdiction.” Thompson’s Br. at 24. According
to Thompson, Alleyne applies because this additional determination requires
that the fact finder conclude beyond a reasonable doubt that the prior out-
of-state conviction for a sex offense is equivalent to a SORNA offense. We
disagree.
“In Alleyne, the Supreme Court of the United States established that
‘[a]ny fact that, by law, increases the penalty for a crime is an “element”
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that must be submitted to the jury and found beyond a reasonable doubt.’”
Commonwealth v. Bragg, 133 A.3d 328, 332-33 (Pa.Super. 2016)
(quoting Alleyne, 133 S. Ct. at 2155), aff’d, __ A.3d __, 2017 Pa. Lexis
1924, at *1 (Pa. filed Aug. 22, 2017). In Bragg, this Court considered
whether Alleyne applied to section 9714 of the Sentencing Code, discussed
above. There, we concluded that because “the Supreme Court [of the
United States] has recognized a narrow exception to this rule for prior
convictions[,] . . . [s]ection 9714 is not rendered unconstitutional under
Alleyne as it provides for mandatory minimum sentences based on prior
convictions.” Id. at 333. Because the applicability of section 9718.2 is
premised on prior convictions for SORNA offenses or SORNA-equivalent
offenses, and section 9718.2 is nearly identical to section 9714 in both
wording and application, we conclude that Alleyne is inapplicable to section
9718.2.
Nor are we persuaded by Thompson’s argument that the question of
what constitutes a SORNA-equivalent offense from another jurisdiction under
section 9718.2 requires the trial court to engage in impermissible fact-
finding. We again turn to section 9714 for guidance. In determining
whether an out-of-state conviction is equivalent to a crime of violence in
Pennsylvania, the trial court must “carefully review the elements of the
foreign offense in terms of classification of the conduct proscribed, its
definition of the offense, the requirement for culpability,” and determine if
the offense “is substantially identical in nature and definition [to] the out-of-
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state or federal offense when compared [to the] Pennsylvania offense.”
Commonwealth v. Diaz, 152 A.3d 1040, 1048-49 (Pa.Super. 2016)
(quoting Commonwealth v. Northrip, 985 A.2d 734, 743 (Pa. 2009)),
app. denied, __ A.3d __, 2017 WL 2264119 (Pa. filed May 23, 2017). Our
Supreme Court has instructed that in making that equivalency
determination, the “focus should be on ‘the [prior] crime for which the
defendant was convicted, not the factual scenario underlying that
crime.’” Id. at 1049 (quoting Northrip, 985 A.2d at 741) (emphasis
added). Because the determination of whether an out-of-state conviction is
equivalent to a crime of violence under section 9714 is a question of law, we
conclude that the similar determination of whether an out-of-state conviction
for a sex offense is equivalent to a SORNA offense under section 9718.2 is
also a question of law to be resolved by the trial court. Further, because we
conclude that the equivalency test10 under section 9718.2 raises a question
of law and not fact, we conclude that Alleyne does not apply.
Judgment of sentence affirmed.
____________________________________________
10
Thompson’s claim does not require us to determine the appropriate
equivalency test under section 9718.2. However, we believe the equivalency
test approved by our Supreme Court in Northrip is appropriate for
determining whether an out-of-state conviction for a sex offense is
equivalent to a SORNA offense.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2017
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