Com. v. Jackson, R.

J-S68034-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT ANTHONY JACKSON
Appellant No. 3180 EDA 2014
Appeal from the Judgment of Sentence November 10, 2014
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0001955-2013
BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED DECEMBER 30, 2015
Appellant, Robert Anthony Jackson, appeals from the November 10,
2014 aggregate judgment of sentence of 83 to 167 years’ imprisonment,
imposed after a jury found him guilty of one count of involuntary deviate
sexual intercourse (IDSI) with a child, four counts each of aggravated
indecent assault on a child without consent and aggravated indecent assault
on a child, and two counts each of endangering the welfare of children
(EWOC), corruption of minors, and indecent assault on a child.1
Contemporaneously with this appeal, Appellant’s counsel has filed a petition
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1
18 Pa.C.S.A. §§ 3123(b), 3125(a)(1), 3125(b), 4304(a), 6301(a), and
3126(a), respectively.
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to withdraw with this Court and an Anders2 brief.3 After careful review, we
vacate and remand for resentencing and deny counsel’s petition to withdraw.
In its opinion, the trial court thoroughly details the facts of the case
and the evidence adduced at trial, and we adopt its comprehensive recitation
for the purpose of this appeal. See Trial Court Opinion, 5/13/15, at 2-4.
Briefly, between February and May 2013, Appellant served as an occasional
babysitter to two brothers, J.G. and C.G., ages six and nine, respectively.
While entrusted with the care of the children, Appellant sexually abused
them. Specifically, J.G. revealed Appellant touched J.G.’s penis and
penetrated his rectum with his fingers. C.G. revealed Appellant performed
oral sex on him, penetrated his rectum with his fingers, and fondled his
penis. The children maintained the assaults occurred multiple times.
On June 13, 2013, the Commonwealth filed an information charging
Appellant with IDSI with a child and numerous related offenses. The
Commonwealth, thereafter, filed an amended information on January 14,
2014. Therein, the Commonwealth notified Appellant that the charges of
IDSI with a child and aggravated indecent assault on a child carry
mandatory minimum sentences pursuant to 42 Pa.C.S.A. § 9718. Amended
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2
Anders v. California, 386 U.S. 738 (1967).
3
This case returns to us following our order remanding and instructing
Appellant’s counsel to either file an advocate’s brief or a procedurally
compliant Anders Brief. Superior Court Order, 11/23/15.
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Information, 1/14/14, at 1-4. On August 5, 2014, Appellant proceeded to a
three-day jury trial. At the conclusion of the trial, on August 8, 2014, the
jury convicted Appellant of the aforementioned offenses. The remaining
charges were withdrawn. On November 10, 2014, the trial court determined
Appellant to be a sexually violent predator and imposed an aggregate
sentence of 83 to 167 years’ imprisonment.4 Appellant did not file a post-
sentence motion. On November 12, 2014, Appellant filed a timely notice of
appeal.5
Appellant’s counsel advances the following question for this Court’s
review.
Whether the trial court erred by giving an instruction
stating that the testimony of the victims standing
alone, without other corroboration, if believed, is
sufficient proof upon which to find [Appellant]
guilty[?]
Anders Brief at 4.
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4
Specifically, the trial court imposed a term of imprisonment of twenty-five
to fifty years for IDSI with a child and one count of aggravated indecent
assault of a child, to run consecutively; consecutive ten to twenty years on
three counts of aggravated indecent assault of a child; and a consecutive
three to seven years for one count of EWOC. Sentencing Order, 11/10/14,
at 1-4; N.T., 11/10/14, at 22. The trial court sentenced Appellant to three to
seven years on the second count of EWOC and on each count of corruption
of minors, to run concurrent to the sentences already imposed. Id.5
The trial court and Appellant have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010) (citation omitted). Additionally, an Anders brief shall comply with the
requirements set forth by our Supreme Court in Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
[W]e hold that in the Anders brief that
accompanies court-appointed counsel’s petition to
withdraw, counsel must: (1) provide a summary of
the procedural history and facts, with citations to the
record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3)
set forth counsel’s conclusion that the appeal is
frivolous; and (4) state counsel’s reasons for
concluding that the appeal is frivolous. Counsel
should articulate the relevant facts of record,
controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is
frivolous.
Id. at 361.
Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.
2005) and its progeny, counsel seeking to withdraw on direct appeal must
also meet the following obligations to his or her client.
Counsel also must provide a copy of the Anders
brief to his client. Attending the brief must be a
letter that advises the client of his right to: (1)
retain new counsel to pursue the appeal; (2)
proceed pro se on appeal; or (3) raise any points
that the appellant deems worthy of the court[’]s
attention in addition to the points raised by counsel
in the Anders brief.
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Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal
quotation marks and citation omitted). “Once counsel has satisfied the
above requirements, it is then this Court’s duty to conduct its own review of
the trial court’s proceedings and render an independent judgment as to
whether the appeal is, in fact, wholly frivolous.” Commonwealth v.
Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004). Further,
“this Court must conduct an independent review of the record to discern if
there are any additional, non-frivolous issues overlooked by counsel.”
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)
(footnote and citation omitted).
In the instant case, we conclude that counsel’s Anders brief complies
with the requirements of Santiago. First, counsel has provided a summary
of the case with citations to the record. Second, counsel refers to portions
of the record that could arguably support an appeal and explains why any
issue raised would be frivolous. Third, counsel has “determined the claims …
are wholly frivolous.” Anders Brief at 10. Lastly, counsel has included his
reasons that support his conclusion that the appeal is frivolous. Id. at 9.
Counsel has also attached to his petition to withdraw proof of his compliance
with the requirements of Millisock. Specifically, counsel advised his client
that he has concluded that the appeal is frivolous, that Appellant has the
right to hire a new attorney, to proceed pro se, or to raise any additional
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points for this Court’s consideration. See Petition to Withdraw, 12/7/15, at
1-2; Anders Brief at Appendix C (correspondence to Appellant). Appellant
has not taken any action in this Court in response to said advice.
Accordingly, we proceed to conduct an independent review to ascertain if the
appeal is indeed wholly frivolous.
In the sole issue before us, counsel advances it was error for the trial
court to instruct the jury that the testimony of the victims, alone, is
sufficient evidence to convict Appellant. Anders Brief at 7. We review such
challenges mindful of the following.
When reviewing a challenge to part of a jury
instruction, we must review the jury charge as a
whole to determine if it is fair and complete. A trial
court has wide discretion in phrasing its jury
instructions, and can choose its own words as long
as the law is clearly, adequately, and accurately
presented to the jury for its consideration. The trial
court commits an abuse of discretion only when
there is an inaccurate statement of law.
Commonwealth v. Conaway, 105 A.3d 755, 760 (Pa. Super. 2014)
(citation omitted), appeal denied, 118 A.3d 1107 (Pa. 2015).
The trial court instructed the jury as follows, regarding the testimony
of the two children.
With respect to the testimony of the two boys, their
testimony, standing alone, if believed by you, is
sufficient proof upon which to find [Appellant] guilty
in this case, if it is believed by you. The testimony
of the victim in a case such as this need not be
supported by other evidence to sustain a conviction.
Thus[,] you may find [Appellant] guilty if the
testimony of the boys convinces you beyond a
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reasonable doubt that [Appellant] is guilty. And in
making such determinations[,] you apply all of the
other factors that I presented to in determining the
credibility and weight of the testimony.
N.T., 8/8/14, at 80-81.
Instantly, we find no error in the trial court’s instruction. First, we
note the language of the trial court substantially tracked the language of
Pennsylvania Suggested Standard Criminal Jury Instruction § 4.13B. See
Commonwealth v. Trippett, 932 A.2d 188, 201 (Pa. Super. 2007)
(discussing the appropriateness of instructing the jury that uncorroborated
testimony of a sexual assault victim is sufficient to convict a defendant and
concluding, because Pa.S.S.Crim.J.I § 4.13B comports with Pennsylvania
law, appellant’s claim that such instruction was error was meritless).
Moreover, it is axiomatic that “the uncorroborated testimony of a sexual
assault victim, if believed by the trier of fact, is sufficient to convict a
defendant.” Commonwealth v. McDonough, 96 A.3d 1067, 1069 (Pa.
Super. 2014), appeal denied, 108 A.3d 34 (Pa. 2015). Accordingly, as the
jury instruction accurately apprised the jury of the law, Appellant’s claim is
wholly frivolous. See Conaway, supra.
Based on the foregoing discussion, we agree with counsel that
Appellant’s claim on appeal is wholly frivolous. However, our independent
review of the record has disclosed that Appellant’s sentence is illegal. See
Flowers, supra. It is well established that legality of sentence challenges
are non-waivable, and this Court may raise such challenges sua sponte.
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Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc),
appeal denied, 95 A.3d 277 (Pa. 2015). “Issues relating to the legality of a
sentence are questions of law[.] … Our standard of review over such
questions is de novo and our scope of review is plenary.” Commonwealth
v. Fennell, 105 A.3d 13, 16 (Pa. Super. 2014) (citation omitted), appeal
denied, 121 A.3d 494 (Pa. 2015). Further, “[i]f no statutory authorization
exists for a particular sentence, that sentence is illegal and subject to
correction.” Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa. Super.
2014) (citation omitted), appeal granted, 121 A.3d 433 (Pa. 2015). “An
illegal sentence must be vacated.” Fennell, supra at 16. (citation omitted).
As noted, the Commonwealth notified Appellant of the potential for a
mandatory minimum sentence pursuant to Section 9718 via the amended
information. “Application of a mandatory minimum sentence gives rise to
illegal sentence concerns, even where the sentence is within the statutory
limits.” Watley, supra at 118. The sentencing order reveals that the trial
court imposed a mandatory minimum term of ten to twenty years’
imprisonment for three counts of aggravated indecent assault of a child.6
Sentencing Order, 11/10/14, at 1-2; accord 18 Pa.C.S.A. 9718(a)(3).
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6
We note our review of the transcripts reveals the Commonwealth explicitly
sought application of the mandatory minimum sentence pursuant to Section
9718.2 based on Appellant’s prior convictions. See N.T., 8/8/14, at 113;
N.T., 11/10/14, at 6-7. The trial court specifically noted its application of
Section 9718.2 at sentencing. N.T., 11/10/14, at 21. Mandatory minimum
(Footnote Continued Next Page)
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This Court has concluded, “Section 9718 is … facially unconstitutional.”
Wolfe, supra at 805. As no statutory authorization existed for the
imposition of the sentence, we conclude the sentence is illegal. Id. at 802.
Based on the foregoing discussion, we conclude the issue raised by
counsel is frivolous. However, our independent review has revealed the trial
court has imposed an illegal sentence. Therefore, we vacate Appellant’s
judgment of sentence and remand for resentencing without consideration of
the Section 9718 mandatory minimum. Additionally, we deny counsel’s
petition to withdraw.
Judgment of sentence vacated. Case remanded for resentencing.
Petition to withdraw as counsel denied. Jurisdiction Relinquished.
_______________________
(Footnote Continued)
sentences based on prior convictions are not unconstitutional, as prior
convictions are sentencing factors and not elements of offenses.
Commonwealth v. Reid 117 A.3d 777, 784-785 (Pa. Super. 2015).
Accordingly, the mandatory twenty-five year sentences imposed for IDSI
with a child and one count of aggravated indecent assault of a child are
legal. While the trial court was silent as to the application of the mandatory
minimum sentence pursuant to Section 9718 at sentencing, the
Commonwealth informed the trial court of the mandatory minimum. See
N.T., 11/10/14, at 12 (the Commonwealth informed the trial court that the
aggravated indecent assault charges carry a “mandatory of ten years[’
imprisonment] because of the age of the child[]”). Further, the trial court
indicated on its sentencing order that the ten-year sentences it imposed
were pursuant to mandatory sentences. Sentencing Order, 11/10/14, at 1-
3.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2015
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