Com. v. Bolden, W. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
WILLIAM BOLDEN,
Appellant No. 3709 EDA 2015
Appeal from the PCRA Order Entered November 18, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005958-2008
BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 08, 2017
Appellant, William Bolden, appeals pro se from the post-conviction
court’s November 18, 2015 order denying his petition filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful
review, we affirm.
Briefly, in March of 2008, Appellant (who was 34 years old at the time)
contacted an 11-year-old female victim for the purpose of engaging in
sexual acts with her. Appellant was arrested in April of 2008 and charged
with unlawful contact with a minor, corruption of minors, indecent assault,
interference with custody of children, and related offenses. At the close of
his non-jury trial in October of 2009, the court convicted Appellant of
unlawful contact with a minor and corruption of minors. The court acquitted
him of the remaining offenses. On April 26, 2010, Appellant - who is a
repeat sexual offender - was determined to be a sexually violent predator
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(SVP), and was sentenced, pursuant to 42 Pa.C.S. § 9718.2(a)(1), 1 to a
mandatory term of 25 to 50 years’ incarceration for his conviction of
unlawful contact with a minor. No further sentence was imposed for his
conviction of corruption of minors.
Appellant filed a timely notice of appeal. This Court affirmed his
judgment of sentence on August 22, 2011, and on January 12, 2012, our
Supreme Court denied his subsequent petition for allowance of appeal.
Commonwealth v. Bolden, 32 A.3d 839 (Pa. Super. 2011) (unpublished
memorandum), appeal denied, 37 A.3d 1193 (Pa. 2012). On January 15,
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That sentencing provision states:
(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.
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).
42 Pa.C.S. § 9718.2(a)(1).
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2013, Appellant filed the timely, pro se PCRA petition that underlies the
present appeal. Counsel was appointed, but he ultimately filed a petition to
withdraw and a Turner/Finley2 ‘no-merit’ letter. On October 8, 2015, the
PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss
Appellant’s petition. Appellant did not file a response and, consequently, on
November 18, 2015, the PCRA court issued an order dismissing his petition
and granting counsel’s petition to withdraw.
Appellant filed a timely, pro se notice of appeal. On December 8,
2015, the PCRA court issued an order, which was sent to Appellant by first
class mail, directing him to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. The order notified Appellant that “any issue
not properly included in the [s]tatement timely filed and served pursuant to
subdivision (b) of the Rule shall be deemed waived.” PCRA Court Order,
12/8/15, at 1. Nevertheless, Appellant did not file a Rule 1925(b) statement
with the PCRA court. Thus, on June 21, 2016, the court issued a Rule
1925(a) opinion stating that Appellant had waived all of the issues he sought
to raise on appeal. See PCRA Court Opinion, 6/21/16, at 3-4. Thereafter,
on September 1, 2016, Appellant filed an untimely Rule 1925(b) statement
with the PCRA court.
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2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Now, on appeal, Appellant raises 13 issues for our review, the last of
which addresses the PCRA court’s conclusion that he has waived all of his
claims by failing to file a Rule 1925(b) statement. In arguing that we should
not deem his issues waived, Appellant states that he did not receive the
PCRA court’s Rule 1925(b) order until July 14, 2016. See Appellant’s Brief
at 25. However, even accepting that claim as true, Appellant still did not file
his Rule 1925(b) statement with the PCRA court until 49 days later, on
September 1, 2016. Therefore, even if Appellant had 21 days from the date
on which he admits he received the court’s Rule 1925(b) order, his Rule
1925(b) statement was still untimely filed.3
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Moreover, Appellant has failed to establish that he never received the order
when it was originally sent, via first class mail, in December of 2015. As
“proof” of this fact, Appellant attaches two documents to his brief to this
Court: (1) an “SCI Somerset Legal Mail Log” for the date of December 8,
2015; and (2) an “Inmate Date Report” which purportedly shows all mail
received by Appellant from February 19th to December 18th of 2015.
Preliminarily, we cannot consider these documents, as they are not
contained in the certified record. See Bennyhoff v. Pappert, 790 A.2d
313, 318 (Pa. Super. 2001) (stating that “[i]t is black letter law in this
jurisdiction that an appellate court cannot consider anything which is not
part of the record in [the] case”). In any event, even if we could consider
those two documents, neither definitively proves that Appellant did not
receive the court’s Rule 1925(b) order. First, the “Legal Mail Log” for
December 8, 2015, has two entries, one of which is redacted; thus, we
cannot determine whether the redacted entry showed Appellant’s receipt of
the court’s order. Second, the “Inmate Date Report” has an entry showing
that Appellant received a document from the Office of Judicial Records on
December 14, 2015, which may very well have been the Rule 1925(b) order.
Therefore, these documents fail to establish that Appellant did not receive
the PCRA court’s Rule 1925(b) order in December of 2015.
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In sum, Appellant has not convinced us that he should be excused
from the well-established, bright-line waiver rule announced in
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (holding that “from
this date forward, in order to preserve their claims for appellate review,
[a]ppellants must comply whenever the trial court orders them to file a
Statement of Matters Complained of on Appeal pursuant to Rule 1925. Any
issues not raised in a 1925(b) statement will be deemed waived.”). Our
Supreme Court has repeatedly reaffirmed Lord’s holding, and rejected
efforts by this Court to create exceptions to the strict waiver principles that
apply to Rule 1925(b). See, e.g., Commonwealth v. Hill, 16 A.3d 484,
493-94 (Pa. 2011); Commonwealth v. Schofield, 888 A.2d 771, 774 (Pa.
2005); Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2004);
Commonwealth v. Butler, 812 A.2d 631, 633 (Pa. 2002). Consequently,
we agree with the PCRA court that, because Appellant filed an untimely Rule
1925(b) statement, he has waived all but the illegality of sentencing issues
(discussed, infra) that he seeks to raise herein. See Commonwealth v.
Williams, 920 A.2d 887, 888 n.3 (Pa. Super. 2007) (noting that generally,
all issues are waived when an untimely Rule 1925(b) statement is filed;
however, legality of sentencing claims are an exception to the general rule).
Appellant raises five claims in his appellate brief that he characterizes
as challenges to the legality of his sentence. Those claims, which we have
reordered and paraphrased, include the following:
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I. Is Appellant’s sentence for unlawful contact with a minor
illegal, where Appellant was acquitted of the underlying sexual
offense of indecent assault?
II. Is Appellant’s sentence illegal where the court failed to place
its reasons for imposing Appellant’s sentence on the Guideline
Sentence Form, as required by 204 Pa.Code. § 303.13(c)?
III. Is Appellant’s sentence under 42 Pa.C.S. § 9718.2(a)(1)
illegal, where the Commonwealth did not specifically indicate
that it intended to seek the imposition of a mandatory sentence
under that subpart?
IV. Is Appellant’s sentence illegal where there was insufficient
evidence to prove that he had a prior conviction triggering
application of the mandatory minimum sentence under 42
Pa.C.S. § 9718.2(c)?
V. Is Appellant’s mandatory minimum sentence illegal under
Alleyne v. United States, 133 S.Ct. 2151 (2013), and its
progeny?
See Appellant’s Brief at 3-4.
In Appellant’s first issue, he argues that his sentence for unlawful
contact is illegal because he was acquitted of the ‘predicate offense’ of
indecent assault. Appellant is essentially challenging the sufficiency of the
evidence to sustain his unlawful contact conviction, not the legality of his
sentence for that offense. Therefore, Appellant’s first issue is waived due to
his failure to file a timely Rule 1925(b) statement.
Nevertheless, even if properly preserved, we would conclude that
Appellant’s argument is patently meritless. Unlawful contact is defined as
follows:
(a) Offense defined.--A person commits an offense if he is
intentionally in contact with a minor, or a law enforcement
officer acting in the performance of his duties who has assumed
the identity of a minor, for the purpose of engaging in an activity
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prohibited under any of the following, and either the person
initiating the contact or the person being contacted is within this
Commonwealth:
(1) Any of the offenses enumerated in Chapter 31 (relating
to sexual offenses).
18 Pa.C.S. § 6318(a)(1). The Commonwealth alleged that Appellant was
contacting the minor victim in this case for the purpose of committing the
Chapter 31 offense of indecent assault, 18 Pa.C.S. § 3126. While the trial
court found Appellant not guilty of indecent assault, his acquittal for that
offense had no bearing on his conviction for unlawful contact with a minor.
As our Supreme Court has declared, “the Chapter 31 offenses are not
predicate offenses for 18 Pa.C.S. § 6318 [(defining unlawful contact with a
minor)].” Commonwealth v. Reed, 9 A.3d 1138, 1146 (Pa. 2010).
Thus, … a defendant need not be convicted of the substantive
offense for which he contacted the minor. Indeed, he need not
be separately charged with a Chapter 31 offense. However,
when the Commonwealth does charge the defendant with a
Chapter 31 offense, an acquittal is relevant for sentencing
purposes under subsection 6318(b) [(grading of the unlawful
contact offense)].
Id. (emphasis in original). In light of Reed, Appellant is clearly incorrect
that his acquittal for the offense of indecent assault rendered the evidence
insufficient to sustain his unlawful contact conviction. Moreover, he does not
contend that the court improperly graded his unlawful contact offense for
sentencing purposes. Consequently, we would deem Appellant’s first issue
meritless, even had he preserved it in a timely-filed Rule 1925(b) statement.
In Appellant’s second issue, he avers that his sentence is illegal
because the court failed to state its reasons for imposing his sentence on the
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Guideline Sentence Form, as required by 204 Pa. Code. § 303.13(c). Again,
Appellant incorrectly characterizes his argument as implicating the legality of
his sentence, while this Court has considered similar claims as challenges to
the discretionary aspects of a sentence. See Commonwealth v. Garcia-
Rivera, 983 A.2d 777, 780 (Pa. Super. 2009); Commonwealth v. Rodda,
723 A.2d 212, 214 (Pa. Super. 1999). Therefore, Appellant has waived this
sentencing challenge by failing to raise it in a timely-filed Rule 1925(b)
statement.
In any event, we note that 204 Pa. Code. § 303.13(c) requires the
court to state its reasons for “an aggravated or mitigated sentence … on the
record and on the Guideline Sentence Form….” Here, the court imposed a
mandatory sentence, not an aggravated/mitigated range sentence. Thus,
we would conclude that Appellant has not demonstrated that the court
violated section 303.13(c), even had he preserved this claim for our review.
In Appellant’s next three issues, he presents various arguments
challenging the application of the mandatory minimum sentence in his case.
“As a general rule, a challenge to the application of a mandatory minimum
sentence is a non-waivable challenge to the legality of sentence.”
Commonwealth v. Hopkins, 67 A.3d 817, 821 (Pa. Super. 2013) (internal
quotation marks and citation omitted). Thus, Appellant did not waive these
claims, despite his untimely-filed Rule 1925(b) statement, and we will
address his arguments in turn.
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Initially, Appellant asserts that the application of a mandatory
minimum sentence was illegal because the Commonwealth only notified him
that it was invoking 42 Pa.C.S. § 9718.2 generally, and it did not specifically
state that it would seek application of the ‘second strike’ provision of section
9718.2(a)(1). In support of his argument, Appellant cites Commonwealth
v. Norris, 819 A.2d 568 (Pa. Super. 2003). However, Norris actually
demonstrates that the Commonwealth’s notice was sufficient. Specifically,
the Norris panel concluded that the Commonwealth provided sufficient
notice that it was invoking a mandatory minimum sentence under 42 Pa.C.S.
§ 9714, even though the Commonwealth did not indicate whether it was
invoking the ‘two strikes’ or ‘three strikes’ provision of that statute. We held
that the Commonwealth’s general notice was reasonable, and we deemed it
“to have encapsulated all relevant provisions of section 9714.” Id. at 574
(citation and internal quotation marks omitted). We further stressed that
the ‘proof at sentencing’ provision of section 9714(d) directed that the
applicability of a specific subpart “of section 9714 is to be determined at the
time of sentencing, with the sentencing court having before it the benefit of
a complete criminal record and determining, by a preponderance of the
evidence, the defendant’s previous convictions….” Id. (emphasis in
original).
Here, section 9718.2 has the same ‘proof at sentencing’ provision as
that contained in section 9714(d). Namely, section 9718.2(c) requires the
Commonwealth to provide the defendant with “reasonable notice” of its
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intent to invoke section 9718.2, and it further states that “[t]he applicability
of [that provision] shall be determined at sentencing[,]” where the court
“shall have a complete record of the previous convictions of the offender….”
42 Pa.C.S. § 9718.2(c). Therefore, as we held in Norris, we conclude that,
in this case, the Commonwealth’s general notice that it intended to invoke
section 9718.2 was reasonable, and it was appropriate for the trial court to
determine, at the time of sentencing, what specific provision of that statute
applied to Appellant’s case.
Appellant’s next claim is that his sentence is illegal because the
Commonwealth did not present sufficient evidence for the court to conclude,
by a preponderance of the evidence, that he had a prior conviction, so as to
trigger applicability of section 9718.2(a)(1). The record belies this claim. At
the sentencing hearing, the Commonwealth admitted into evidence - without
objection by Appellant - the bills of information from two other, unrelated
cases in which Appellant was convicted of indecent assault. See N.T.
Sentencing, 4/26/10, at 35-36. Indecent assault is an offense that
constitutes a ‘prior conviction’ for purposes of section 9718.2(a)(1). See 42
Pa.C.S. § 9718.2(a)(1); 42 Pa.C.S. § 9799.14(b)(6). Therefore, the
Commonwealth presented sufficient evidence for the court to conclude that
section 9718.2(a)(1) applied in this case.
Finally, Appellant contends that his mandatory minimum sentence is
illegal in light of Alleyne, where the United States Supreme Court held that
facts that increase mandatory minimum sentences must be submitted to the
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fact-finder and determined beyond a reasonable doubt. Alleyne, 133 S.Ct.
at 2163. Again, Appellant’s argument is meritless. Because the mandatory
minimum sentences set forth in section 9718.2 are premised on the
defendant’s prior convictions, Alleyne does not render section 9718.2
unconstitutional. The Alleyne Court explicitly acknowledged that “the fact
of a prior conviction” was “a narrow exception” to its holding. See id. at
2160 n.1. Additionally, this Court has recognized that Alleyne does not
invalidate mandatory minimum sentencing statutes that pertain to a
defendant’s prior convictions. See Commonwealth v. Watley, 81 A.3d
108, 117 (Pa. Super. 2013). Thus, 42 Pa.C.S. § 9718.2 is not
unconstitutional under Alleyne.
Moreover, we also point out that even if section 9718.2 were invalid
under Alleyne, Appellant would still not be entitled to relief. Alleyne was
decided on June 17, 2013, over one year after Appellant’s judgment of
sentence became final on April 11, 2012 (ninety days after our Supreme
Court denied his petition for allowance of appeal). See 42 Pa.C.S. §
9545(b)(3) (stating that a judgment of sentence becomes final at the
conclusion of direct review or the expiration of the time for seeking the
review); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998)
(directing that under the PCRA, petitioner’s judgment of sentence becomes
final ninety days after our Supreme Court rejects his or her petition for
allowance of appeal, since petitioner had ninety additional days to seek
review with the United States Supreme Court). The Pennsylvania Supreme
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Court has held that Alleyne does not apply retroactively to collateral attacks
on mandatory minimum sentences. Commonwealth v. Washington, 142
A.3d 810, 819-20 (Pa. 2016).
In sum, Appellant’s arguments fail to demonstrate that he is serving
an illegal sentence, and the remainder of his claims are waived due to his
failure to file a timely Rule 1925(b) statement.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/2017
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