Commonwealth v. Brown

JOYCE, J.:

¶ 1 This matter is before the Court on Timothy Brown’s (Appellant) appeal from the judgment of sentence, as made final by the denial of post-sentencing motions.¹ For the reasons set forth below, we vacate the judgment of sentence and remand for resentencing. Before reaching the merits of this appeal, we will recount the relevant facts and procedural history.

¶ 2 The charges in this case arise out of two incidents, one in which Appellant raped a seventy-four (74) year old woman and one in which he attempted to rape an officer posing as an elderly woman. On August 4, 1997, following a colloquy with the trial judge, Appellant pled guilty to rape,² criminal attempt rape,³ unlawful restraint ⁴ and burglary.⁵ Prior to the entry of the plea, the Commonwealth notified Appellant of its intention to seek a mandatory sentence under 42 Pa.C.S.A. § 9714. On September 24,1997, the trial court held a sentencing hearing. The trial judge found that Appellant had two predicate convictions under 42 Pa.C.S.A. § 9714.⁶ The trial court further found Appellant to be a “sexually violent predator” under 42 Pa.C.S.A. § 9794, relating to the designation of sexually violent predators. After consideration of the presentence investigation report and the report of the State Board to Assess Sexually Violent Predators, the trial court concluded that a sentence of twenty-five (25) to fifty (50) years’ incarceration would not be sufficient to protect the public safety. The trial judge then sentenced Appellant to two consecutive life sentences without parole, with all other sentences to run concurrent.⁷ On October 6,' 1997, Appellant timely filed post-sentencing motions, which included a motion to vacate and/or modify sentence. By order dated December 16, 1997, the trial court denied Appellant’s post-sentencing motions.

¶ 3 On January 6, 1998, Appellant timely filed his notice of appeal. By order dated August 20, 1998, this Court remanded the matter and directed the trial court to place its reasons on the record for imposing two consecutive life sentences under 42 Pa.C.S.A. § 9714(a)(2). On September 30, 1998, the trial court filed its “Reasons Relied Upon For Consecutive Life Sentences” (hereinafter Reasons) with this Court. Thereafter, on October 30, 1998, this Court ordered that this case be heard en banc. This Court further directed that a supplemental brief be submitted in accordance with Pa.R.A.P. 2140. Appellant filed a substitute brief and the Commonwealth responded.⁸ This matter is now ripe for our consideration.

¶ 4 Appellant presents six issues for our review: (1) whether 42 Pa.C.S.A. § 9714 violates the ex post facto clause of the United States Constitution; (2) whether section 9714 is unconstitutionally vague; (3) whether the Commonwealth’s burden of proving the existence of predicate offenses by a preponderance of the evidence when enforcing section 9714 violates the due process clause of the United States Constitution and Article 1, § 9 of the Pennsylvania Constitution; (4) whether section 9714 is unconstitutionally vague in failing to define the burden of proof necessary to determine what is “insufficient to protect public safety;” (5) whether the trial court abused its discretion in imposing two consecutive life sentences in excess of the twenty-five (25) to fifty (50) years contemplated by section 9714 when the court failed to place its reasons on the record; and (6) whether the provisions of the Registration of Sexual Offenders Act, 42 Pa. C.S.A. §§ 9791-9799.6 (the Act), violate an individual’s right to due process of law by requiring him to rebut the statutory presumption that he is a sexually violent predator.

¶ 5 We begin by addressing Appellant’s sixth and final contention, as we find it to be dispositive. Appellant argues that the section of the Act governing the registration of sexual offenders, commonly known as “Megan’s Law” (hereinafter Megan’s Law), which imposes the presumption that an individual who has been convicted of an “enumerated offense” is a “sexually violent predator” and requires an individual to rebut such presumption by clear and convincing evidence, violates the individual’s right to due process of law. Appellant’s Brief at 22-23. Appellant relies on this Court’s decision in Commonwealth v. Halye, 719 A.2d 763 (Pa.Super.1998) (en banc), to support his position.

¶ 6 In Halye, this Court concluded that the due process clause of the federal constitution is violated by the provisions of the Act which require the offender to rebut a presumption and which do not impose upon the prosecution the burden of persuasion by clear and convincing evidence. Id. at 769. This Court struck as unconstitutional § 9794 of Title 42 and all remaining sections of the Act which refer to the designation of a “sexually violent predator.” Id. Appellant maintains that based on Halye, his sentence is unconstitutional and should therefore be vacated.

¶ 7 The Commonwealth counters that Appellant has waived this claim. We disagree. Appellant first raised this issue in his “Motion For Extraordinary Relief Challenging the Constitutionality of the ‘Sexually Violent Predator’ Provisions of Pennsylvania’s Megan’s Law, And To Bar A Second Prosecution For the Same Offense,” filed August 13, 1997. Appellant next raised the issue in the court below in his Pa.R.A.P.1925(b) Statement, filed on January 14, 1998.⁹ In his original pro se brief to this Court, Appellant did not raise or brief this issue. However, after this Court directed the case to be argued en banc, the Court allowed Appellant to file a substitute brief. Appellant thereafter filed a “Substitute Brief’ which included his challenge to Megan’s Law. Appellant’s Substitute Brief, in effect, replaced his original pro se brief. Appellant therefore has properly raised his Megan’s Law claim in both the trial court and this Court. As such, the claim is preserved for appellate review.

¶ 8 After reviewing this issue, we find it to be meritorious. The Supreme Court of Pennsylvania recently definitively resolved this question and confirmed Halye in Williams and Gaffney, supra. We are thus constrained to vacate judgment of sentence and remand this matter for re-sentencing pursuant to Williams, Gaffney, and Halye, supra.

¶ 9 Notwithstanding our disposition of this case, we shall also address Appellant’s remaining five issues. In light of our status as an intermediate appellate court, we cannot predict the future course of this matter, which may include further appellate review. Commonwealth v. Byrd, 409 Pa.Super. 611, 598 A.2d 1011, 1014 (1991). Consideration of the remainder of Appellant’s issues is accordingly in order. Id.

¶ 10 Appellant’s first four issues all concern 42 Pa.C.S.A. § 9714, which states in relevant part:

(a) Mandatory sentence.-

(2) Where the person had at the time of the commission of the current offense previously been convicted of two or more such crimes of violence arising from separate criminal transactions, the person shall be sentenced to a minimum sentence of at least 25 years total confinement, notwithstanding any other provision of this title or other statute to the contrary. Proof that the offender received notice of or otherwise knew or should have known of the penalties under this paragraph shall not be required.

Upon conviction for a third or subsequent crime of violence the court may, if it determines that 25 years of total confinement is insufficient to protect the public safety, sentence the offender to life imprisonment without parole.

42 Pa.C.S.A. § 9714(a) (emphasis added).

¶ 11 Appellant first argues that section 9714¹⁰ violates the ex post facto clauses of the United States and Pennsylvania Constitutions. A law will be found to be constitutionally infirm on grounds that it is an ex post facto law only where one of the following is present:

1. The law makes an act criminal which was not criminal when done;

2. The law aggravates a crime [-] one which makes it greater than it was when committed;

3. The law changes a punishment, and makes it greater than it was when a punishable act was committed;

4. The law alters the rules of evidence and requires less or different testimony than the law required at the time the offense was committed in order to be convicted.

Commonwealth v. Grady, 337 Pa.Super. 174, 486 A.2d 962, 964 (1984) (emphasis added).

¶ 12 Appellant specifically claims that section 9714, as applied to him, is an ex post facto law because it includes convictions occurring before enactment of the present version of the statute. We disagree. Appellant committed the crimes on November 30, 1996 and December 8, 1996. The current version of the statute became effective prior to the commission of the offenses for which Appellant was sentenced on September 24, 1997. See Act of 1995, Oct. 11, P.L. 1058, No. 21 (Spec.Sess. No. 1), § 4, providing that the act is effective in 60 days. In cases such as this, where a version of a statute is enacted prior to a defendant being sentenced, this Court has rejected the argument that this constitutes an ex post facto law. See Commonwealth v. Scott, 345 Pa.Super. 86, 497 A.2d 656, 657 (1985) (holding that the statute imposing a life sentence for conviction of third-degree murder on anyone who had previously been convicted at any time of murder or manslaughter did not violate the ex post facto clause where the crime committed by defendant after the effective date was what brought defendant within the ambit of the statute, not the prior crime which was used for enhancement purposes). See also Commonwealth v. Grady, 486 A.2d at 963 (upholding recidivist provision of the drunk driving law, 75 Pa.C.S.A. § 3731, against a similar ex post facto challenge). We similarly find that the trial judge’s application of section 9714 did not and could not increase the sentences Appellant received for his prior attempted rape convictions. The law in this case applied prospectively only to future offenses and did not change the punishment for the predicate offenses. Accordingly, we find Appellant’s argument to be without merit.

¶ 13 Appellant’s second claim is that section 9714 is unconstitutionally vague. Specifically, Appellant contends that under section 9714(2), a “strike three” offender will be sentenced to imprisonment without parole if a sentencing judge “determines that 25 years of total confinement is insufficient to protect the public safety.” 42 Pa.C.S.A. § 9714(2), supra. Appellant argues that the statute’s failure to define the terms “protect the public safety,” creates a constitutional infirmity because neither the sentencing court nor the defendant are reasonably advised as to what these terms mean. Appellant’s Substitute Brief at 16.

¶ 14 We begin by noting that there is a strong presumption in law that legislative enactments are constitutional. Commonwealth v. Barud, 545 Pa. 297, 304, 681 A.2d 162, 165 (1996). There is a heavy burden of persuasion upon one who challenges the constitutionality of a statute. Id. A statute will only be found unconstitutional if it clearly, palpably and plainly violates the Constitution. Id. As generally stated, the void for vagueness doctrine requires that the penal statute define a criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Id. Due process requirements are satisfied if the statute provides reasonable standards by which a person may gauge his or her future conduct. Id. at 305, 681 A.2d at 165.

¶ 15 A law is void on its face and violative of due process if it is so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application. Commonwealth v. Savich, 716 A.2d 1251, 1255 (Pa.Super.1998), appeal denied, 738 A.2d 457, 1999 Pa. Lexis 784 (1999). The constitutional prohibition against vagueness does not invalidate every statute that could have been drafted with greater precision, but we must consider the essential fairness of the law and the impracticability of drafting the legislation with greater specificity. Id. Due process simply requires that the statute be drafted with sufficient definiteness that it is not susceptible to arbitrary and discriminatory enforcement. Id.

¶ 16 In the present case, Appellant claims that the phrase “protect the public safety” is vague and, therefore, the statute is unconstitutional. We disagree. We find the language in section 9714 to be analogous to the language in section 9721(b), which states specifically that the court shall impose confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. 42 Pa.C.S.A. § 9721(b) (emphasis added). We find that section 9714 is in pari materia with section 9721. Statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things. See 1 Pa.C.S.A. § 1932. Statutes in pari materia shall be construed together, if possible, as one statute. Id. We find that the same phraseology is used in each of these statutes. Thus, the same construction must necessarily be given to both sections.

¶ 17 Courts routinely sentence defendants under section 9721. A review of relevant caselaw reveals that case after case employs the phrase “protection of the public,” without further explanation. See Commonwealth v. Jones, 433 Pa.Super. 266, 640 A.2d 914, 917 (1994) (only constraints placed on sentencing court’s discretion are that sentence imposed must be within statutory limits, that record must show consideration of sentencing guidelines in fight of public protection, gravity of offense, and rehabilitative needs of defendant); Commonwealth v. Munson, 419 Pa.Super. 238, 615 A.2d 343, 345 (1992) (sentencing court must impose sentence consistent with protection of public, gravity of offense as it relates to impact on fife of victim and community, and rehabilitative needs of defendant); Commonwealth v. Lawson, 437 Pa.Super. 521, 650 A.2d 876, 881 (1994), appeal denied, 540 Pa. 596, 655 A.2d 985 (sentence imposed should be consistent with need to protect public and rehabilitative needs of defendant). A judge is required each day to employ his or her discretion in sentencing offenders. We believe that the language at issue in section 9714 requires no more “fine drawing” than is commonly required of a fact-finder in any lawsuit. Accordingly, trial courts can exercise their discretion and sentence defendants under section 9714. The language in section 9714 is not so vague that persons of ordinary intelligence must necessarily guess at its meaning or differ as to its application. The phrase “protection of the public” and what is “insufficient to protect the public safety” are phrases commonly understood. We conclude that the language at issue is drafted with sufficient definiteness and that it is not susceptible to arbitrary and discriminatory enforcement. Accordingly, we find this argument to be without merit.

¶ 18 Appellant next argues that section 9714 violates due process by failing to define the burden of proof necessary to determine what is “insufficient to protect the public safety.” However, our review of Appellant’s brief reveals that Appellant neither cites any authority in support of his claim nor develops it in his argument. This Court has held that the argument section of an appellant’s brief must include a relevant discussion of points raised along with citations to pertinent authorities. Commonwealth v. Zewe, 444 Pa.Super. 17, 663 A.2d 195, 196 (1995), appeal denied, 544 Pa. 629, 675 A.2d 1248 (1996). See also Pa.R.A.P. 2119(a) (argument shall be followed by such discussion and citation of authorities as are deemed pertinent). Accordingly, we find that Appellant has waived this claim. Commonwealth v. Luktisch, 451 Pa.Super. 500, 680 A.2d 877 (1996) (finding issue waived where defendant failed to develop it in argument and cited no authority).

¶ 19 In his next allegation of error, Appellant asserts that the statute violates due process by requiring the Commonwealth to prove the existence of predicate offenses by a preponderance of the evidence. In Commonwealth v. Allen, the Supreme Court of Pennsylvania held that “the preponderance standard prescribed in section 9714 satisfies the minimum requirements of due process.” Commonwealth v. Allen, 508 Pa. 114, 121, 494 A.2d 1067, 1071 (1985). In Allen, the Court rejected the notion that due process requires a higher standard of proof than a preponderance of the evidence in mandatory sentencing proceedings. Id. The Supreme Court reasoned that, in assessing the constitutionality of the preponderance standard, it must weigh the liberty interest of the defendant against the Commonwealth’s interest in imposing a mandatory sentence and determine how the risk of error should be distributed between those two parties in the sentencing proceeding. Id. (citations omitted). The Court went on to state, “[t]he Commonwealth’s interest in protecting the public, punishing violent repeat offenders and deterring violent crime is at least as great as the convicted defendant’s interest in leniency. The risk of error, moreover, is minimal. The existence of a pri- or conviction is a simple historical fact which may be ascertained through official documents.” Id. See also Commonwealth v. Freeman, 356 Pa.Super. 332, 514 A.2d 884 (1986), appeal denied, 514 Pa. 642, 523 A.2d 1130 (1987) (holding that defendant’s due process rights were not violated by application of the Mandatory Sentencing Act). As such, no relief is due on this claim.

¶20 Lastly, we address Appellant’s contention that the imposition of two consecutive life sentences was excessive and unduly harsh and constituted an abuse of discretion by the trial court. This issue presents a challenge to the discretionary aspects of sentence rather than the legality of sentence. See Commonwealth v. Nelson, 446 Pa.Super. 240, 666 A.2d 714, 720 (1995), appeal denied, 544 Pa. 605, 674 A.2d 1069 (1996) (regarding claim of exces-siveness of sentence as a challenge to the discretionary aspects of sentence). The right to appeal a discretionary aspect of sentence is not absolute. Commonwealth v. Barzyk, 692 A.2d 211, 216 (Pa.Super.1997). Rather, a party who desires to raise such matters must petition this court for permission to appeal and demonstrate that there is a substantial question that the sentence is inappropriate. 42 Pa. C.S.A. § 9781(b); Commonwealth v. Cappellini, 456 Pa.Super. 498, 690 A.2d 1220, 1227 (1997).

¶ 21 The determination of whether a particular issue constitutes a substantial question as to the appropriateness of sentence must be evaluated on a case-by-case basis. Barzyk, 692 A.2d at 216. It is only where an aggrieved party can articulate clear reasons why the sentence imposed by the trial court compromises the sentencing scheme as a whole that we will find a substantial question and review the decision of the trial court. Id. We will grant an appeal only when the appellant advances a colorable argument that the sentencing judge’s actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process. Barzyk and Cappellini, supra.

¶ 22 In fulfilling this requirement, the party seeking to appeal must include in his or her brief a concise statement of the reasons relied upon in support of the petition for allowance of appeal. Pa.R.A.P. Rule 2119(f), 42 Pa.C.S.A.; Commonwealth v. Saranchak, 544 Pa. 158, 176, 675 A.2d 268, 277 (1996), cert. denied, 519 U.S. 1061, 117 S.Ct. 695, 136 L.Ed.2d 617 (1997). Appellant has complied with this requirement.

¶23 We first note that this Court has held that a claim of excessiveness of sentence does not raise a substantial question where the sentence is within the statutory limits. Nelson, 666 A.2d at 720. In this case, the sentence imposed was within the statutory limits. Further, an allegation that a sentencing court failed to consider certain factors does not raise a substantial question. Id.

¶ 24 However, Appellant also contends that the court failed to place its reasons on the record for imposing the sentence. An allegation that the sentencing court did not adequately set forth its reasons on the record does present a substantial question. Commonwealth v. Jones, 418 Pa.Super. 93, 613 A.2d 587, 590 (1992) (en banc), appeal denied, 535 Pa. 615, 629 A.2d 1377 (1993). Accordingly, we will address this claim.

¶25 The Supreme Court of Pennsylvania has outlined the standard which governs whether a sentencing court has properly stated its reasons for imposing sentence and stated:

Where pre-sentence reports exist, we shall continue to presume that the sentencing judge was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors. A pre-sentence report constitutes the record and speaks for itself.... Having been fully informed by the pre-sentence report, the sentencing court’s discretion should not be disturbed.

Commonwealth v. Devers, 519 Pa. 88, 101-102, 546 A.2d 12, 18 (1988). Therefore, this requirement is met if the court states on the record that it has consulted a pre-sentence report. Id.

The standard of review in sentencing matters is well settled. Imposition of a sentence is vested in the discretion of the sentencing court[, whose decision] will not be disturbed absent a manifest abuse of discretion. An abuse of discretion is more than just an error in judgment.... [0]n appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Smith, 543 Pa. 566, 570-571, 673 A.2d 893, 895 (1996) (citations omitted). Moreover, when reviewing sentencing matters, we must accord the sentencing court great weight as it is in the best position to view the defendant’s character, displays of remorse, defiance or indifference, and the overall effect and nature of the crime. Commonwealth v. Clever, 395 Pa.Super. 192, 576 A.2d 1108, 1110 (1990). Where the court’s sentencing colloquy “shows consideration of the defendant’s circumstances, prior criminal record, personal characteristics and rehabilitative potential, and the record indicates that the court had the benefit of the presentence report, an adequate statement of the reasons for the sentence imposed has been given.” Commonwealth v. Phillips, 411 Pa.Super. 329, 601 A.2d 816, 823-24 (1992) (citations omitted).

¶ 26 In the present case, the trial court met the requirements as set forth in Dev-ers. The trial court stated on the record that the presentence investigation report was to be made a part of the record. N.T. Sentencing 9/24/97, at 8. The judge stated specifically that the presentence report “[has] a direct impact on the ultimate issue as to sentencing on which this Court continued to rely.” Id. The trial court went on to discuss its reasons for the sentence imposed. Id. at 9-14. The court indicated that it had struggled with the sentence in this case and that sentence would not be lightly imposed. Id. at 13. The judge stated that he did not feel that jail time would serve or cure Appellant’s problem. Id. The judge took into consideration Appellant’s mindset and his antisocial behavior. Id. The judge noted the emotion displayed in the victim impact statements as well as Appellant’s own comments. Id. After considering all these facts, the trial court concluded that a sentence of 25 to 50 years would be insufficient to protect the public safety.

¶27 In the present case, a sentence of life imprisonment without parole is only to be imposed upon a finding that “25 years of total confinement is insufficient to protect the public safety.” 42 Pa.C.S.A. § 9714(a)(2). The trial judge found that 25 to 50 years would be insufficient to protect the public safety. N.T. Sentencing, 9/24/97, at 13-14. We find that the judge placed sufficient reasons on the record for imposition of the first life sentence. However, we further find that the trial judge did not provide sufficient justification on the record as to the reasons a second life sentence would be necessary. Once the court imposed the first life sentence, it then needed to explain on the record why a second consecutive life sentence was necessary to protect the public safety. As such, upon remand for resen-tencing, the trial court is free to impose any sentence it deems appropriate so long as the trial court sufficiently justifies its reasons on the record for the sentences imposed.

¶ 28 Judgment of sentence vacated. Remanded for resentencing. Jurisdiction relinquished.

¶ 29 DEL SOLE, J. files Concurring and Dissenting Opinion. ¶ 30 JOHNSON, J. files Concurring and Dissenting Opinion, in which CAVANAUGH, J. and MUSMANNO, J. join. ¶ 31 ORIE MELVIN, J. files Concurring Statement.

1 . See Commonwealth v. Chamberlain, 442 Pa.Super. 12, 658 A.2d 395, 397 (1995), appeal quashed, 543 Pa. 6, 669 A.2d 877 (1995) and Pa.R.Crim.P. 1410 and comment thereto (providing that a judgment of sentence becomes final for purposes of appeal when the trial court disposes of post-sentencing motions).

2 . 18 Pa.C.S.A. § 3121.

3 . 18 Pa.C.S.A. § 901 (criminal attempt) and § 3121 (rape).

4 . 18 Pa.C.S.A. § 2902.

5 . 18 Pa.C.S.A. § 3502.

6 . At the sentencing hearing, the Commonwealth introduced certified copies of official records proving Appellant’s prior convictions. The documents showed that Appellant had two prior convictions for attempted rape, arising out of separate transactions.

7 . Specifically, the trial judge sentenced Appellant to the following: life imprisonment without parole for rape; not less than two (2) years nor more than five (5) years for unlawful restraint, to run concurrent; life without parole for criminal attempt rape, to run consecutive; and not less than five (5) years nor more than ten (10) years for burglary, to run concurrent.

8 .Following issuance of the Supreme Court of Pennsylvania’s decisions in Commonwealth v. Williams, 557 Pa. 285, 733 A.2d 593 (1999), and Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616 (1999), this Court ordered the parties to file supplemental briefs addressing the effect of these cases on the issues presented in this appeal.

9 . We note that the Halye decision was filed October 6, 1998.

10 . We note that Appellant repeatedly refers to this section as "the three strikes legislation.” For clarity and ease of discussion, we will use the proper name of the section in this opinion.