Com. v. Elia, J. ( 2016 )

J-S41040-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JAMES ANTHONY ELIA,
Appellee No. 3403 EDA 2015
Appeal from the PCRA Order October 8, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0009201-2010
BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 18, 2016
The Commonwealth of Pennsylvania appeals the order of the Court of
Common Pleas of Montgomery County granting Appellee James Anthony
Elia’s petition under the Post Conviction Relief Act1 and vacating his sentence
based on the decisions in Alleyne v. U.S., 133 S.Ct. 2151 (2013) and
Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014), appeal
granted, 121 A.3d 433 (Pa. August 12, 2015). For the foregoing reasons,
we are constrained to affirm.
On February 14, 2011, Appellee was charged with several counts of
Involuntary Deviate Sexual Intercourse (IDSI) involving a child less than 16
years of age, Statutory Sexual Assault, Aggravated Indecent Assault
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1
42 Pa.C.S. §§ 9541-9546.
*Former Justice specially assigned to the Superior Court.
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involving a person less than 16 years of age, Corruption of Minors, Indecent
Assault of a person less than 16 years of age, and Unlawful Contact or
Communication with a Minor.2
Initially, Appellee pled guilty to one count each of IDSI and Statutory
Sexual Assault, but later was permitted to withdraw his guilty plea. Appellee
waived his right to a jury trial and proceeded to a bench trial. On January
19, 2012, the trial court convicted Appellee of one count each of IDSI
involving a child less than 16 years of age, Statutory Sexual Assault,
Aggravated Indecent Assault involving a person less than 16 years of age,
Corruption of Minors, Indecent Assault of a person less than 16 years of age,
and Unlawful Contact or Communication with a Minor.
On May 19, 2012, the Commonwealth notified Appellee of its intention
to seek the ten year mandatory minimum sentence for the IDSI count under
42 Pa.C.S. § 9718(a)(1) (“Sentences for offenses against infant persons”).
On April 25, 2012, Appellee was sentenced to ten to twenty years
imprisonment. Appellee filed a post-sentence motion, claiming inter alia,
that his mandatory minimum sentence was unconstitutional. After the trial
court denied his motion, Appellee filed a timely appeal. On December 24,
2013, this Court affirmed Appellee’s judgment of sentence, and the Supreme
Court denied Appellee’s Petition for Allowance of Appeal on July 1, 2014.
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2
18 Pa.C.S. §§ 3123(a)(7), 3122.1, 3125(a)(8), 6301(a)(1), 3126(a)(8),
and 6318(a)(1), respectively.
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On August 15, 2014, Appellee filed a timely PCRA petition. On
September 15, 2015, Appellee amended his petition to include a challenge
the legality of his sentence under the decision in Alleyne, in which the
Supreme Court of the United States held that “facts that increase mandatory
minimum sentences must be submitted to the jury” and must be found
beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2163. Following a
hearing, the PCRA court granted Appellee’s petition based on the Alleyne
claim and vacated his sentence. The Commonwealth filed this timely appeal
and complied with the PCRA court’s direction to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The Commonwealth argues that the PCRA court erred in finding that
the imposition of the mandatory minimum sentence under Section 9718 was
unconstitutional. Section 9718 states in relevant part:
§ 9718. Sentences for offenses against infant persons
(a) Mandatory sentence.—
(1) A person convicted of the following offenses when the victim
is less than 16 years of age shall be sentenced to a mandatory
term of imprisonment as follows:
***
18 Pa.C.S. § 3123 (relating to involuntary deviate sexual
intercourse)--not less than ten years.
***
(b) Eligibility for parole.--Parole shall not be granted until the
minimum term of imprisonment has been served.
(c) Proof at sentencing.--The provisions of this section shall
not be an element of the crime, and notice of the provisions of
this section 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. The applicability of this section
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shall be determined at sentencing. The court shall consider any
evidence presented at trial and shall afford the Commonwealth
and the defendant an opportunity to present any necessary
additional evidence and shall determine, by a preponderance of
the evidence, if this section is applicable.
42 Pa.C.S. § 9718.
The Commonwealth contends that the application of the mandatory
minimum sentence in Section 9718 does not offend Alleyne as the operative
fact triggering the application of the mandatory minimum – that the victim
was less than sixteen years old – was found by the trier of fact beyond a
reasonable doubt. The Commonwealth notes that it was required to prove
this fact as an element of the offense of IDSI under Section 3123(a)(7),
which provides that a person commits a felony of the first degree when he
“engages in deviate sexual intercourse with a complainant … who is less than
16 years of age and the person is four or more years older than the
complainant.” 18 Pa.C.S. § 3123(a)(7).
However, the Commonwealth concedes that this case is controlled by
this Court’s decision in Wolfe, in which a three-judge panel determined that
the holding in Alleyne rendered Section 9718 void in its entirety, finding the
statutory language permitting the facts triggering the mandatory minimum
to be determined at sentencing by a preponderance of the evidence was not
severable from the remaining provisions. The panel in Wolfe relied on the
en banc decision in Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.
2014) (en banc) for the proposition that “mandatory minimum sentencing
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statutes in Pennsylvania of this format are void in their entirety.” Wolfe,
106 A.3d at 805-806.
Nevertheless, the Commonwealth argues that Wolfe was wrongly
decided and should be overruled.3 The Commonwealth distinguishes the
statutes in this case and in Wolfe (Section 9718) from those applied in
Alleyne and Newman, where the triggering facts for the mandatory
minimum were not elements of the offenses in the Crimes Code, but were
solely set forth in the sentencing statutes. The Commonwealth points out
that our Supreme Court granted allowance of appeal in Wolfe and decided
to review the case on an expedited schedule to consider “[w]hether the
Superior Court of Pennsylvania's sua sponte determination that the ten year
mandatory minimum sentence for involuntary deviate sexual intercourse
(Person less than 16 years) imposed pursuant to 42 Pa.C.S.A. § 9718(a)(1)
is facially unconstitutional is erroneous as a matter of law[.]” Wolfe, 121
A.3d at 434.
Although the holding in Wolfe has been called into question by the
Supreme Court’s decision to grant further review of that decision, Wolfe is
binding precedent unless and until reversed by the Supreme Court. See
Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013) (noting that
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3
See also Wolfe, 106 A.3d at 807 (Bowes, J., concurring) (contending that
this Court’s decision in Newman was erroneous as the burden of proof
provision of § 9178 should be deemed severable from the remainder of the
statute).
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one panel of the Superior Court is not empowered to overrule another panel
of the Superior Court). Accordingly, as the relevant facts and contested
issue in this case are identical to those in Wolfe, we have no choice but to
uphold the PCRA court’s decision to vacate Appellee’s sentence as
unconstitutional.
Order affirmed. Remand to the trial court for resentencing consistent
with the PCRA court opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2016
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