Opinion
No. 2128 WDA 2002.
Filed: January 12, 2005.
Appeal from the Judgment of Sentence June 5, 2002, In the Court of Common Pleas of Jefferson County Criminal at No. CR No. 2000-00569.
Before: JOYCE, BENDER AND BOWES, JJ.:
¶ 1 Paul Len Schaffer ("Appellant") appeals from the judgment of sentence imposed on June 5, 2002, following his convictions on one count each of rape, involuntary deviate sexual intercourse (IDSI), corruption of minors, endangering the welfare of children, statutory sexual assault, indecent assault, criminal attempt to commit rape, and criminal intent to commit IDSI. We vacate the judgment of sentence and remand for resentencing.
¶ 2 The relevant history of this case is as follows. On February 6, 2001, the Commonwealth filed a criminal information against Appellant, alleging the commission of 45 separate instances of various sexual crimes related to Appellant's sexual molestation of his paramour's daughter. The victim was 9 to 11 years old at the time Appellant committed the crimes, all of which occurred over an approximately two-year period. On January 22, 2002, the Commonwealth amended the information to allege one count of each of the crimes listed above (with the exception of two counts of IDSI), because it could not set forth the specific dates and details of each separate incident but, rather, could only allege that numerous instances of molestation occurred over the two-year time period. Appellant was tried before a jury on March 8, 2002, and the jury convicted Appellant on one count of each of the sexual offenses listed above.
¶ 3 On March 8, 2002, the trial court ordered Appellant to submit himself to the Pennsylvania Sexual Offender Assessment Board (SOAB) for assessment under Megan's Law, 42 Pa.C.S. §§ 9791- 9799.7. Additionally, the court ordered the preparation of a presentence report. On May 28, 2002, the trial court held a hearing to determine whether Appellant should be classified as a sexually violent predator under Megan's Law.
¶ 4 Notably, Appellant testified at trial and denied culpability for the crimes of which he was convicted. See N.T. Trial, 3/8/02, at 132, 144. Nevertheless, during his presentence investigation, he admitted to Crystal R. Cochran of the Jefferson County Adult Probation Department that the crimes "might have happened, I drank a lot and I don't remember it happening." See Presentence Investigation Report, 4/8/02, at 4. See also Trial Court Findings of Fact, 6/3/02, at ¶ 5. Later, during Appellant's initial interview with SOAB investigator Paul Everett ("Everett"), Appellant allegedly admitted to Everett that, in the distant past, he had sexual contact with his younger niece and nephew. See Megan's Law Hearing, 5/28/02, at 19. Everett reported this admission to SOAB psychologist William Allenbaugh ("Allenbaugh"), who composed the SOAB report. At the Megan's Law hearing, Allenbaugh testified, from information provided by Everett, that the incidents involving the niece and nephew occurred when Appellant was 21 years old and the niece and nephew were approximately 9 to 10 years old. See id.; Findings of Fact at ¶ 6. Appellant denied making the admission to Everett. In any event, the trial court determined that Appellant was a sexually violent predator under Megan's Law.
¶ 5 On June 5, 2002, the trial court sentenced Appellant as follows: 10 to 20 years' imprisonment for rape, 2 ½ to 5 years for corruption of minors, 3 ½ to 7 years for endangering the welfare of children, and 10 to 20 years for criminal attempt at rape. No further sentence was imposed for the remaining convictions because they merged with other offenses. The trial court ordered the sentences to run consecutively, resulting in an aggregate sentence of 26 to 52 years' imprisonment.
Additionally, Appellant pled guilty to a DUI charge at Docket No. 129-2002 and the trial court sentenced Appellant on a DUI conviction to 15 days to 1 year imprisonment. Although this conviction is not relevant here and not included in the total aggregate sentence calculated above, it is worth noting that the court ordered that it run consecutively to the sentences imposed in this case.
¶ 6 Appellant filed post trial motions challenging, inter alia, the length of his sentence and the constitutionality of Megan's Law. The court entered an order denying these motions. The order was docketed on November 1, 2002. Appellant filed a timely notice of appeal on December 2, 2002.
December 1, 2002 fell on a Sunday.
¶ 7 Appellant raises the following issues in this appeal:
1. Whether, by recalling the jury prematurely and instructing them to consider matters unrelated to the evidence presented, the trial court violated Mr. Schaffer's fundamental rights to a fair trial as guaranteed by Article I, § 9 of the Pennsylvania Constitution and the Sixth and Fourteenth Amendments to the United States Constitution.
2. Whether the court abused its discretion by deviating from the Sentencing Guidelines to aggravate appellant's sentence based upon its consideration of uncharged, unproven misconduct, an impermissible factor not related to the charges contained in the criminal information.
3. Whether, under the federal and state constitutions, the notice requirement of Megan's Law, 42 Pa.C.S.A. § 9791 et seq., is ex post facto as applied to conduct occurring before its passage, and whether the statute violates due process on grounds that it does not require proof beyond a reasonable doubt that an accused is a "sexually violent predator[.]"
Appellant's brief at 1.
¶ 8 In his first issue, Appellant challenges the supplemental charge given by the trial judge in response to an inquiry received from the jury during their deliberations. After the jury had been deliberating for approximately three hours, they sent a note to the judge asking "[h]ow long do we have to deliberate before it's considered a hung jury?" See Order, 5/13/03. After receiving this note, the judge called the jury back into the courtroom and gave them the following instructions:
Since the note was misplaced and is not in the record, the trial court issued an order in accordance with Pa.R.A.P. 1926 ("Correction or Modification of the Record"), correcting this omission and stating, as a fact, that the jury note said substantially what is indicated above.
THE COURT: Members of the jury, you have now had this case for three hours approximately. Obviously, you are having some difficulty in resolving the issues in this case. On the one hand, this difficulty is the indication of the sincerity and objectivity of which you have approached your duties. On the other hand, it may be the result of confusion in your minds about the instruction I gave you on the law and about the application to the facts of this case.
Speaking through your foreperson, would you please stand.
[Foreperson], does the jury require any additional or clarifying instructions on the laws that apply to this case?
[FOREPERSON]: No. I don't think so, no.
THE COURT: In your judgment is there a reasonable probability of the jury reaching a unanimous verdict?
[FOREPERSON]: It was because of lack of evidence.
THE COURT: Okay. And in your judgment is there reasonable probability that the jury could reach a unanimous verdict?
[FOREPERSON]: I don't think so.
THE COURT: Have a seat for a moment. And I want to explain this as you know, and I already went through my instructions, I will not go back through all those again. But, as I said, during the case this is certainly important to both the Commonwealth and the defendant. I appreciate all of you being here to this late hour of the night, but because the matter is of such importance and because we have spent a substantial amount of your time as well as the time of both the attorneys and witnesses I'm going to give you some further instructions and ask you to reconsider this in the jury room. Obviously, it's not only important to the Commonwealth and defendant, but the county and for yourselves. If the matter were to go to hung jury this matter could be retried or would face other disposition that the county and possibly other jurors would have to be in your same place hearing the same evidence, the families, witnesses would have to travel back to the courtroom and possibly go through this exercise again. Now, I'm going to say that you realize, of course, any verdict you return must be a unanimous verdict and if we get past that point you still do have a duty to consult with one another and deliberate with a view to reaching an agreement if it can be done without violence to your own individual judgment. Each juror must decide the case for himself or herself but only after impartial consideration of the evidence with the other jurors. A juror should not hesitate to reexamine his or her own views and change his or her views if that person thinks they are erroneous. But no juror should surrender their honest convictions, the weight or effect of the evidence because of the opinion of his or her fellow jurors or for the mere purpose of returning a verdict.
Keeping those instructions in mind — and these were approximately the last instructions I gave you — because of the time already that you have invested along with everyone else I am going to send you back to the deliberation room to give further consideration to these charges that are before you. Now, if the Court can give you any assistance — again, I tell you if you have questions on the law, if there is a specific point regarding anything that I gave you before, we can consider that and reinstruct on that part. So if the Court can be of any assistance certainly write the question down and I will be more than happy to take a look at that and clarify any points of law. Just simply ask that you take some further time, examine each of your own consciences, examine the evidence in line with your own opinion and see if it is possible that you might reach a verdict on each of these.
Now, there is another possibility. If there are some that you can agree on but some you cannot I would ask that you look at each charge individually and if there is some that you believe, in fair consideration of all of your own beliefs, you can unanimously agree on one or two up to seven or eight of the individual charges, please mark those that are unanimous. If we can't reach it on others, we will reconsider that at a later time. But again, because I don't want to delay anymore, because of what I just told you about the importance and I know you are all taking this very serious[ly] from the time you have put in, I would ask you to go back, give some more consideration to your own thoughts and to each other's thoughts on each individual charge and see if there are any and maybe all that you can reach a unanimous verdict on.
. . .
(Whereupon the jury was dismissed for further deliberation.)
N.T. Charge of the Court, 3/8/02, at 106-110. Following further deliberations, the jury convicted Appellant on all but one of the counts charged.
¶ 9 Appellant now argues that the trial court prematurely recalled the jury and improperly provided the above quoted supplemental charge, which, in Appellant's opinion, coerced an otherwise deadlocked jury into returning a guilty verdict by instructing them to consider matters other than the evidence presented at trial ( e.g., cost of retrial). Appellant argues that this error violated his federal and state constitutional right to a fair trial by an impartial jury because it coerced a guilty verdict from the jury. See U.S. CONST. amend. VI; PA. CONST. art. 1, § 9.
¶ 10 When reviewing challenges to jury instructions, we note the following:
Our standard of review of a jury charge is well settled. We will not rigidly inspect a jury charge, finding reversible error for every technical inaccuracy . . . rather [we] evaluat[e] whether the charge sufficiently and accurately apprises a lay jury of the law it must consider in rendering its decision. [W]e must review the charge as a whole. Error cannot be predicated on isolated excerpts of the charge . . . it is the general effect of the charge that controls. An instruction will be upheld if it clearly, adequately and accurately reflects the law. The trial court may use its own form of expression to explain difficult legal concepts to the jury, as long as the trial court's instruction accurately conveys the law. A verdict will not be set aside if the instructions of the trial court, taken as a whole, and in context, accurately set forth the applicable law.
Commonwealth v. Jones, 2004 PA Super 331, 3 (filed August 25, 2004) (citations and quotation marks omitted). The question of whether a supplemental charge, like the one at issue here, had a coercive effect on the verdict is reviewed under an abuse of discretion standard. Commonwealth v. Santiago, 424 A.2d 870 (Pa. 1981).
¶ 11 Former practice allowed provision of a so-called " Allen" charge, sometimes also referred to as a dynamite charge because its purpose is "to blast a hung jury into a verdict." United States v. Fioravanti, 412 F.2d 407, 419 (3d Cir. 1969). However, in Commonwealth v. Spencer, 275 A.2d 299 (Pa. 1971), our state Supreme Court expressly forbade the use of the Allen charge, citing its potential for a coercive effect on the jury. Indeed, it is "well-established that a verdict brought about by judicial coercion is a legal nullity." Commonwealth v. Montgomery, 687 A.2d 1131, 1136 (Pa.Super. 1996) (quoting Commonwealth v. Chester, 587 A.2d 1367, 1380 (Pa. 1991)).
Allen v. United States, 164 U.S. 492 (1896).
¶ 12 In Spencer, the jury deliberated for more than five hours when the foreman reported hopeless deadlock. Spencer, 275 A.2d at 302. The Commonwealth requested that the judge give the jury an Allen charge. The charge in Allen read substantially as follows:
[A]lthough the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor, and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced to each other's arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority were for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority.
Spencer, 275 A.2d at 302 n. 4 (citing Allen, 164 U.S. at 501-502) (emphasis added). For purposes of this opinion, we refer to this type of charge herein as an " Allen charge." See United States v. Eastern Med. Billing, Inc., 230 F.3d 600, 602 n. 1 (defining " Allen charge" as a charge that "direct[s] the minority jurors to reconsider their views in light of their disagreement with the majority").
¶ 13 The trial court in Spencer gave substantially the same charge that was at issue in Allen. Spencer, 275 A.2d at 303. In analyzing the propriety of the Allen charge, our Supreme Court concluded that it improperly instructed a jury that: "(1) a minority juror should yield to the majority; and (2) those with no reasonable doubt, i.e., the majority, need not re-examine their position despite the existence of a reasonable doubt in the mind of a minority juror." Id. at 303-304 (footnote omitted). These problems are apparently derived from the language emphasized in the Allen charge reproduced above. Additionally, the Spencer Court noted that an Allen charge is in conflict with the principal that a defendant has a right to a unanimous verdict. Id. at 304 n. 6. Given these problems with the Allen charge, the Court concluded:
It cannot be overemphasized that each notion [ i.e., the two problems noted above] is contrary to the hallowed tradition of trial by jury secured by both our federal and state constitutions . . . [.] [T]he Allen charge contains these potential abuses. [T]he Allen charge should not be employed by the trial judges of this Commonwealth. . . .
Id. at 304 (citations omitted). Similarly, the Third Circuit disapproved the use of the Allen charge, stating that "a juror should not be subjected to judicial pressure to vote contrary to his honest best judgment because a large majority of his fellow jurors have reached a conclusion to which he is not persuaded." United States v. Burley, 460 F.2d 998, 999 (3d Cir. 1972) (citing Fioravanti, supra).
In Eastern Med. Billing, Inc., the Third Circuit stated that the Allen charge was improper because it: (1) "tends to endow the majority of jurors with the imprimatur of the court[;]" (2) "serve[s] to replace the give and take of group deliberation necessary to support the requirement of jury unanimity with the influence of an early jury poll[;]" and (3) "threaten[s] to undermine the reasonable doubt standard because a minority vote changed to guilty by the coercive effect of the instruction would result in a verdict representing less than the collective view of each juror separately applying the reasonable doubt standard." Eastern Med. Billing, Inc., 230 F.3d at 608 (citing Fioravanti, 412 F.2d at 417-419).
¶ 14 Instead, the Spencer Court recommended that a standard promulgated by the American Bar Association (ABA) be used in lieu of the Allen charge in the case of a deadlocked jury. The relevant ABA standard, Standard 15-5.4, is reproduced here:
Standard 15-5.4. Length of deliberations; deadlocked jury
(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:
(1) that in order to return a verdict, each juror must agree thereto;
(2) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
(3) that each juror must decide the case for himself or herself but only after an impartial consideration of the evidence with the other jurors;
(4) that in the course of deliberations, a juror should not hesitate to reexamine his or her own views and change an opinion if the juror is convinced it is erroneous; and
(5) that no juror should surrender his or her honest belief as to the weight or effect of the evidence solely because of the opinion of the other jurors, or for the mere purpose of returning a verdict.
(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in section (a). The court should not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
(c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.
American Bar Association, ABA Standards for Criminal Justice: Discovery and Trial by Jury, Standard 15-5.4, (3d ed. 1996), available at http://www.abanet.org/crimjust/standards/jurytrial_toc.html. This is essentially the same ABA standard that existed in 1971, when Spencer was decided. Indeed, we shall refer to this type of charge, i.e., one that comports with Standard 15-5.4, as a Spencer charge.
We shall also refer to the Spencer charge given in this case as the "supplemental charge" because it was the trial court's instruction following a period of deliberation. See Eastern Med. Billing, Inc., 230 F.3d at 602 n. 1.
¶ 15 In Spencer, our Supreme Court recommended that our trial courts rely upon this ABA standard when juries are deadlocked. Spencer, 275 A.2d at 304. Of course, whether to give this charge or not is, in the first place, within the sound discretion of the trial court. Sanitago, 424 A.2d at 873. Moreover, "[t]he trial court may properly consider whether an instruction of further deliberations might have a coercive effect upon the verdict." Id. (concluding trial court did not abuse discretion by refusing defense counsel's request to give Spencer charge, where jury had already deliberated for 30 hours, retired to deliberate more than once, and still remained deadlocked — trial court indicated that at that point, Spencer charge may have been coercive).
¶ 16 We conclude initially that the trial court gave a permissible Spencer charge at an appropriate time and, therefore, did not abuse its discretion. "In order to assess the propriety of the trial judge's statements, this Court must review the instructions as a whole to determine if any improper judicial wrangling occurred." Montgomery, 687 A.2d at 1136. In doing so, we find that the problems appurtenant to the Allen charge, as outlined in Spencer, do not exist here. The charge in the instant case did not in any way instruct the minority jurors to yield to the majority nor did the charge instruct that "those with no reasonable doubt, i.e., the majority, need not re-examine their position despite the existence of a reasonable doubt in the mind of a minority juror." Spencer, 275 A.2d at 303-304.
¶ 17 Rather, the charge was right in line with ABA Standard 15-5.4. Specifically, the charge encouraged the jurors to, inter alia, "consult with one another and deliberate with a view to reaching an agreement if it can be done without violence to [each juror's] own individual judgment." N.T. Charge of the Court, 3/8/02, at 108. The court stressed that "[e]ach juror must decide the case for himself or herself but only after impartial consideration of the evidence with the other jurors." Id. The court told the jury that they should be open to reexamining his or her own views and change that view if they honestly believe it to be erroneous. Id. The court emphasized that "no juror should surrender their honest convictions" or disregard the "weight or effect of the evidence because of the opinion of his or her fellow jurors or for the mere purpose of returning a verdict." Id. The court concluded the charge by asking the jury to continue deliberating and "give some more consideration to your own thoughts and to each other's thoughts on each individual charge and see if there are any and maybe all that you can reach a unanimous verdict on." Id. at 110. Nothing in the charge suggests that a juror disregard his own views or opinion. Rather, it merely asks each juror to be open to the other jurors' opinions and arguments, without doing violence to each juror's own convictions. The charge, when read as a whole, neither qualifies as an impermissible Allen charge nor provides any evidence of judicial coercion.
¶ 18 In addition to arguing that the charge in the instant case constituted an impermissible Allen charge, Appellant also argues that we should consider other factors attendant to the trial court's reading of the supplemental charge. Appellant argues that the chronology of the deliberations suggests that the jury was coerced into swiftly rendering a guilty verdict after receiving the supplemental charge. Appellant contends that, after receiving the supplemental charge, the jury returned to deliberate and returned to the courtroom with their verdict in less than forty-five minutes. He also contends that the court prematurely recalled the jury and read the supplemental charge after only three hours of deliberation, thereby coercing or rushing the jury to a guilty verdict. Appellant also states that the jury foreperson's comment indicating that the jury was deadlocked because of "lack of evidence" provides further proof of coercion when the supplemental charge was thereafter read. With regard to these contentions, we are reminded that: "[T]he length of the deliberation of a jury is wisely left to the sound discretion of the trial Judge, and we reverse only if we find . . . abuse of discretion, or that the verdict was the product of coercion or of an overworked and fatigued jury." Commonwealth v. Gartner, 381 A.2d 114, 124 (Pa. 1977) (citation and internal quotation marks omitted).
¶ 19 The chronology of events in the instant case and the foreperson's comment do not convince us that there was any coercion by the court imposed upon the jury to reach a verdict. Unlike Santiago, where the Spencer charge was given after thirty hours of deliberation, the charge in this case was given after three hours of deliberation. In Montgomery, a case in which a Spencer charge was given after less than two hours of deliberation, we stated that the Spencer charge "is especially appropriate in cases such as this when the jury had been deliberating for such a short period of time prior to informing the court that it was at an impasse." Montgomery, 687 A.2d at 1136. The amount of time spent deliberating in the instant case before the Spencer charge was given, was more akin to the amount of time spent in Montgomery. We follow Montgomery and conclude that the instruction was not given prematurely.
¶ 20 The other factors that Appellant argues presented evidence of coercion, i.e., the foreperson's comment and the fact that the jury rendered a verdict a short time after the Spencer charge, also do not convince us that the trial court abused its discretion in reading the Spencer charge. We found no abuse of discretion when the jury in Montgomery, after receiving the Spencer charge, deliberated for a half hour before rendering their verdict. We emphasized that the Spencer charge itself was not coercive and the judge never forbade the jury from returning a hung verdict. Montgomery, 687 A.2d at 1136. Similarly, in the instant case, although the jury's deliberations after receiving the Spencer charge were brief, the Spencer charge itself was not coercive and, in fact, it expressly informed the jury that they need not reach consensus on all counts. Consideration of the attendant circumstances does not change our conclusion that there was no abuse of discretion by the court in giving the supplemental charge.
¶ 21 In his second issue, Appellant argues that his total sentence was excessive and that the sentences for each crime greatly exceeded the aggravated range recommended in the sentencing guidelines. He argues that the court did not state sufficient reasons on the record for imposing this sentence and improperly relied upon impermissible factors such as uncharged conduct in imposing aggravated sentences. These issues challenge the discretionary aspects of Appellant's sentence.
¶ 22 Matters relating to the discretionary aspects of sentencing are not appealable as of right. Commonwealth v. Fremd, 2004 PA Super 361, 24 (filed Sept. 15, 2004). Our Rules of Appellate Procedure require an appellant to set forth in his brief to this Court a concise statement of reasons relied upon in support of granting allowance of appeal with respect to the discretionary aspects of the sentence. Pa.R.A.P. 2119(f). Additionally, Appellant's concise statement "must show that there is a substantial question that the sentence imposed was not appropriate under the Sentencing Code" in order for us to grant allowance of appeal on the discretionary sentencing issues. Fremd, 2004 PA Super 361, 24 (citing 42 Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987). A substantial question exists where the statement sets forth a plausible argument that the sentence violates a particular provision of the Sentencing Code or is contrary to the fundamental norms underlying the sentencing scheme." Commonwealth v. McNabb, 819 A.2d 54, 56 (Pa. 2003).
¶ 23 In the instant case, Appellant has included in his brief a concise statement in compliance with Rule 2119(f). In this statement, he argues that the trial court failed to adequately state its reasons on the record for imposing an aggravated sentence and considered impermissible factors when fashioning the sentence. Such allegations raise a substantial question. See id. at 56-57; Commonwealth v. Mickell, 598 A.2d 1003, 1007 (Pa.Super. 1991). Therefore, we grant allowance of appeal with regard to Appellant's challenge to the discretionary aspects of his sentence.
¶ 24 Our standard of review with regard to sentencing issues is well-settled:
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. An abuse of discretion is more than just an error in judgment and, on 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, bias or ill-will.
Commonwealth v. Reyes, 853 A.2d 1052, 1055 (Pa.Super. 2004) (citation omitted). The broad discretion granted to a sentencing court is based on the perception that it "is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it." Commonwealth v. Mouzon, 812 A.2d 617, 620 (Pa. 2002) (citation omitted). However, as noted in Commonwealth v. Walls, 846 A.2d 152, 157 (Pa.Super. 2004):
[the] deference paid to the trial court does not necessitate a rubber stamped approval of the sentences imposed by the sentencing court. Appellate review of sentencing matters would become a mockery and a sham if all sentences were routinely affirmed under the guise of discretion of the trial court. Further, it must be considered our function to review sentences in a more detached manner so that we can ensure not only a fair and impartial sentence under the circumstances, but also to protect against grossly disparate treatment of like offenders throughout the Commonwealth.
Id. (quoting Commonwealth v. Smart, 564 A.2d 512, 514 (Pa.Super. 1989)).
¶ 25 When fashioning a sentence, in addition to considering the gravity of the offense in relation to the impact on the victim and the community, the protection of the public, and the defendant's need for rehabilitation, the sentencing court must also consider the sentencing guidelines found at 204 Pa. Code §§ 303.1-303.18. 42 Pa.C.S. § 9721(b); Walls, 846 A.2d at 157-158. Although the sentencing guidelines are considered advisory, Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa.Super. 2002), the sentencing court is still charged with considering them and determining whether to apply them or whether circumstances of the individual case require departure from them, Walls, 846 A.2d at 158. When a sentencing court decides to deviate from the guidelines, it "shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and resentencing the defendant." 42 Pa.C.S. § 9721(b). The reasons for imposing a sentence outside of the guidelines "shall be recorded on the Guideline Sentence Form. . . ." 204 Pa. Code § 303.1(d).
¶ 26 In the instant case, the "contemporaneous written statement" required to substantiate the court's departure from the guidelines appears on the Guideline Sentence Form wherein the court wrote: "This was a continuous course of conduct violating parental duties. He threatened to kill himself." However, as noted above, at the Megan's Law Hearing, Allenbaugh testified that Appellant admitted to Everett (the individual who conducted the initial interview with Appellant for the SOAB assessment) that he molested his niece and nephew years before the time the incidents occurred in the instant case. Subsequently, at sentencing, the court used this information from the SOAB investigation and stated that this information "uncover[ed] that there were nephews and nieces that you sexually abused, that the statue [sic] of limitations had run, which leaves in essence three victims [ i.e., the victim in the instant case and the niece and nephew]." N.T. Sentencing, 6/5/02, at 19, 20. Accordingly, the court announced: " The reason for applying that maximum sentence is that I believe because there were two other victims of statutory limitations had run [sic] and because of your problems that you are a danger to society." Id. at 23 (emphasis added).
The statement "he threatened to kill himself" is based on the victim's testimony that Appellant told her that he would commit suicide if anyone ever discovered his actions.
¶ 27 In Commonwealth v. Chase, 530 A.2d 458, 460 (Pa.Super. 1987), we considered the question of whether the trial court considered an impermissible factor in sentencing a defendant convicted of terroristic threats. In that case, it was alleged that, following the verdict, the defendant made a threatening phone call to the jury foreperson. We concluded that the trial court primarily considered this allegation in imposing sentence and that that consideration was improper because it was premised on uncharged conduct. We held: "It is reasonable to assume . . . that the court considered conduct similar to the one for which appellant was convicted, but for which he was not charged. We have held that such action on the part of a sentencing judge is inappropriate." Id. at 461. In reaching this conclusion, we relied on, inter alia, Commonwealth v. Sypin, 491 A.2d 1371 (Pa.Super. 1985). In Sypin,
we vacated the sentence and remanded in a case where the appellant had been charged with deviate sexual intercourse and corruption of a nine year old boy. In sentencing, the trial court had referred to the disappearance or death of children for which the appellant not been charged. In our review of that sentencing procedure we stated:
These statements require that the judgment of sentence be vacated and the case remanded for resentencing. Appellant was not charged in connection with the disappearance or death of any child.
Chase, 530 A.2d at 461-62 (quoting Sypin, 491 A.2d at 1372).
¶ 28 In the instant case, in announcing the fact that the statute of limitations had run on the allegations with regard to the niece and nephew and, by deeming them additional victims, the court improperly considered uncharged conduct as an aggravating factor for sentencing purposes and, as a result, improperly imposed punishment for such conduct. Accordingly, we must vacate the judgment of sentence and remand for resentencing. See Chase, 530 A.2d at 460 ("Consideration of an improper factor does not make the sentence illegal, although it would render the sentence invalid and require that the sentence be vacated and the case remanded for resentencing.").
¶ 29 Moreover, we note that "[o]ur Supreme Court has held that 'the correct inquiry in such a case as this is not whether the trial court considered legitimate factors in fixing sentence, but whether it considered only such factors. . . . Thus, a sentence based in part on an impermissible consideration is not made proper simply because the sentencing judge considers other permissible factors as well.'" Id. at 463 (quoting Commonwealth v. Bethea, 379 A.2d 102, 106 (Pa. 1977)). Thus, the extent to which the court in the instant case considered permissible factors has no impact on our conclusion that we must remand for resentencing because the aggravated sentence was clearly predicated on an impermissible factor of uncharged conduct.
We state no opinion herein with regard to the effect, if any, of Blakely v. Washington, 124 S.Ct. 2531 (2004), on the instant case. We note that our Court has recently granted en banc review in the case of Commonwealth v. Kleincke, No. 986 MDA 2003, and we expect that the effect of Blakely on sentencing in Pennsylvania will be considered in that case.
¶ 30 We further note that the purpose of the Megan's Law assessment, from which the information about the niece and nephew was gleaned, is not for collecting evidence of potential aggravating factors to be used in sentencing but, rather, to determine if a convicted sex offender should be classified as a sexually violent predator. The information involving Appellant's niece and nephew was obtained through the SOAB process. Megan's Law provides that "[i]n all cases where the [SOAB] has performed an assessment pursuant to this section, copies of the report shall be provided to the agency preparing the presentence investigation." 42 Pa.C.S. § 9795.4(f). This provision contemplates that information gleaned from an SOAB assessment can be used in the presentence investigation. Apparently, given the absence of information pertaining to the allegations involving the niece and nephew in the presentence report, the presentence investigator did not have the benefit of the SOAB report. Nevertheless, the sentencing court considered this information, which was only provided to the court through the SOAB report and through the testimony of SOAB investigator Allenbaugh. We mention this issue only to voice our concern that the purpose of Megan's Law can be undermined, and the potential for a chilling effect on SOAB assessments is a real concern, if convicted sex offenders cannot be forthright during the SOAB assessments for fear that any information they offer may be used against them later to enhance their sentences.
The question of whether this testimony constituted hearsay is not necessary to consider, since we are remanding on the basis that the sentencing court considered an impermissible factor.
¶ 31 In his third issue, Appellant argues that Megan's Law is punitive or penal in nature and, therefore, violates the constitutional provision against ex post facto laws because the crimes in this case took place before the effective date of the revised statute that became effective in 2000. Appellant's brief at 26. He also argues that Megan's Law violates "procedural due process, even after the 2000 amendments, for failing to require the Commonwealth to meet a 'proof beyond a reasonable doubt' standard before imposing 'sexually violent predator' status on an accused." Id.
¶ 32 Challenges to the constitutionality of a statute involve questions of law, of which our scope of review is plenary. Commonwealth v. Howe, 842 A.2d 436, 441 (Pa.Super. 2004). Our standard of review is whether the trial court committed an error of law. Commonwealth v. Benner, 853 A.2d 1068 (Pa.Super. 2004). "A statute is presumed to be constitutional and will not be declared unconstitutional unless it clearly, palpably, and plainly violates the constitution." Howe, 842 A.2d at 441.
¶ 33 The constitutional challenges Appellant presents here have been addressed by our state appellate courts. The registration, notification, and counseling provisions of the revised version of Megan's Law that became effective in 2000, i.e., the current version that was applied in this case, are not punitive in nature. Commonwealth v. Williams, 832 A.2d 962, 984 (Pa. 2003) (holding that registration, notification, and counseling provisions were not unconstitutional, but determining that penalty provisions for failure to register or verify residence were manifestly excessive and unconstitutional; however, the provision deemed unconstitutional was severed from the remainder of the statute and, in any event, is not at issue in the instant case). The Court in Commonwealth v. Maldonado, 838 A.2d 710, 718 (Pa. 2003), dealt with the same due process argument presented here and concluded that the clear and convincing evidence standard (instead of the proof beyond a reasonable doubt standard) used to determine if a convicted person is a sexually violent predator for purposes of the registration, notification, and counseling provisions of Megan's Law does not offend due process guarantees. See also Commonwealth v. Kopicz, 840 A.2d 342, 348 (Pa.Super. 2003); Commonwealth v. Rhoads, 836 A.2d 159, 162 (Pa.Super. 2003).
¶ 34 Also, in Commonwealth v. Fleming, 801 A.2d 1234, 1238 (Pa.Super. 2002), we concluded that "there is no violation of any ex post facto provision in requiring registration when the acts underlying an individual's conviction occurred prior to the effective date of the registration requirements." See also Benner, 853 A.2d at 1071. (indicating that "existence of some punitive element is a prerequisite to any determination that a law is ex post facto" and registration, notification, and counseling requirements are not punitive). We rely on Fleming and the other cases cited above to conclude that Appellant's constitutional challenges to Megan's Law are without merit.
¶ 35 For the foregoing reasons, we vacate the judgment of sentence and remand for resentencing.
¶ 36 Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction relinquished.
¶ 37 Judge Bowes files a dissenting opinion.
¶ 1 As I believe that the trial court gave legally sufficient reasons for its decision to sentence outside of the guidelines, I dissent from the portion of the majority's decision that remands for resentencing.
¶ 2 The limited question before this Court is set forth in Appellant's brief. "A sentencing court abuses [its] discretion by sentencing outside the range established by the Pennsylvania sentencing guidelines in reliance on uncharged misconduct, which is an impermissible sentencing factor." Appellant's brief at 21. My departure from the majority rests on my belief that when a defendant admits that he has committed criminal acts, those acts are proper considerations in the sentencing process.
As Appellant raises no allegation that reliance on information gleaned through a sexually violent predator assessment by the Sexual Offenders Assessment Board is improper, I believe the majority's discussion of this question at pages twenty-two and twenty-three of its decision violates the holding of Heath v. Workers' Compensation Appeal Board, ___ Pa. ___, ___, 860 A.2d 25, 30 (2004) (issue not raised in appellate briefs of the parties should play "no part" in appellate review process).
¶ 3 Initially, there is no precedent that provides that "uncharged criminal conduct" cannot be used during sentencing. What is undoubtedly true is that uncharged criminal conduct may not be used for sentencing purposes when there is no proof that the defendant committed such conduct. Commonwealth v. Chase, 530 A.2d 458 (Pa.Super. 1987); Commonwealth v. Sypin, 491 A.2d 1371 (Pa.Super. 1985). It also is fundamental that when a defendant has been exonerated in the legal system with respect to a criminal act, that act cannot be used to enhance a sentence. Commonwealth v. Calbert, 463 Pa. 211, 344 A.2d 797 (1975); Commonwealth v. Smithton, 631 A.2d 1053 (Pa.Super. 1993). In this case, however, Appellant admitted that he sexually abused two other victims. Proof of the commission of these acts has been provided through Appellant's own statements.
Appellant raised a hearsay objection as to the manner of introduction of his admissions regarding the two other victims but has not raised this question on appeal.
¶ 4 Our Sentencing Code actually requires a sentencing court to consider the protection of the public when imposing a sentence, 42 Pa.C.S. § 9721(b). Herein, the public is placed at more risk by the fact that Appellant has abused two additional victims.
¶ 5 It is settled that the sentencing court, guided by valid reasons, is permitted to impose a sentence outside the guidelines.
[I]n exercising its discretion, the sentencing court may deviate from the guidelines, if necessary, to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offenses as it relates to the impact on the life of the victim and the community, so long as he also states of record "the factual basis and specific reasons which compelled him to deviate from the guideline range." The sentencing guidelines are merely advisory and the sentencing court may sentence a defendant outside of the guidelines so long as it places its reasons for the deviation on the record.
Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa.Super. 2002) (citation omitted). The legislature has provided that an appellate court shall vacate a sentence and remand to the sentencing court if "the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable." 42 Pa.C.S. § 9781(c)(3). That section also provides that "in all other cases the appellate court shall affirm the sentence imposed by the sentencing court." 42 Pa.C.S. § 9781(c). The factors that should be weighed when we review a sentence include:
(1) The nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission. 42 Pa.C.S. § 9781(d). Clearly, the fact that Appellant admittedly abused two other children relates to his characteristics and history in addition to impacting on society's future protection.
¶ 6 Our Supreme Court has indicated that if the sentencing court proffers valid reasons supporting its decision to depart from the guidelines, we must affirm that sentence. Commonwealth v. Smith, 543 Pa. 566, 673 A.2d 893 (1996); see also Commonwealth v. Griffin, 804 A.2d 1 (Pa.Super. 2002). That rationale certainly applies herein.
¶ 7 It also must be remembered that there are other reasons for sentencing in excess of the guidelines in this case. Appellant sexually abused his victim weekly for two years, beginning when she was ten years old. He was convicted of only one count of rape, two counts of involuntary deviate sexual intercourse, and one count each of corruption of a minor, endangering the welfare of a child, statutory sexual assault, indecent assault, attempted rape and attempted IDSI. As the sentencing court noted, the impact on the victim of this ongoing sexual abuse has been substantial; the crime's impact on the victim is a valid sentencing consideration.
¶ 8 Appellant has received a sentence that is authorized by the legislature. Valid reasons were articulated of record by the sentencing court in justification of the sentence imposed. Hence, the sentence should stand and I, respectfully, dissent.