Opinion
J-S45007-15 No. 308 MDA 2015
08-07-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. KEVIN JONES, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered February 9, 2015
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0001252-2012
BEFORE: BOWES, WECHT, AND FITZGERALD, JJ. MEMORANDUM BY BOWES, J:
Former Justice specially assigned to the Superior Court.
Kevin Jones appeals from the order entered February 9, 2015, denying his first-counseled post-conviction relief petition filed pursuant to the Post-Conviction Relief Act ("PCRA"). We affirm.
Police charged Appellant with one count each of involuntary deviate sexual intercourse ("IDSI") with a child, IDSI with a person less than sixteen years old, indecent assault of a person under the age of thirteen, indecent assault of a person under the age of sixteen, incest, endangering the welfare of a child ("EWOC"), and corruption of a minor. These charges stemmed from Appellant's sexual abuse of his son while his son was between the ages of ten and sixteen, and included Appellant performing oral sex on his son and directing his son to perform oral sex on him. At trial, Appellant's son testified against him and the Commonwealth presented a videotaped interview by Appellant containing certain admissions. The jury found Appellant guilty of the aforementioned offenses.
The court imposed sentence on January 9, 2013. Specifically, it sentenced Appellant under 42 Pa.C.S. § 9718, the mandatory minimum sentencing provision governing certain enumerated sex offenses. In doing so, the court sentenced Appellant to two consecutive terms of incarceration of ten to twenty years for IDSI of child and IDSI with a person under the age of sixteen based on multiple acts. Appellant filed a direct appeal, but counsel filed an Anders brief and petition to withdraw.
While Appellant's appeal was pending, the United States Supreme Court decided Alleyne v. United States , 133 S.Ct. 2151 (2013), which held that mandatory minimum sentencing statutes that permit a judge to increase a sentence based on facts it determined by a preponderance of the evidence violated the federal constitution's guarantee of the right to a jury trial. The facts in Appellant's case used to increase his sentence, however, were also determined by the jury beyond a reasonable doubt. Hence, no jury trial violation issue was present and counsel did not raise an Alleyne violation after that decision was decided.
This Court did not sua sponte raise the question of severability of the sentencing statute or the legality of Appellant's sentence. After an initial remand, Commonwealth v. Jones , 87 A.3d 884 (Pa.Super. 2014), we affirmed the judgment of sentence and permitted counsel to withdraw. Commonwealth v. Jones , 96 A.3d 1089 (Pa.Super. 2014).
Counsel initially failed to file a petition to withdraw and her Anders brief was deficient.
Appellant filed a timely pro se PCRA petition on April 14, 2014. The court appointed counsel and a hearing was conducted on November 19, 2014. The PCRA court initially denied relief on December 19, 2014. However, after this Court decided Commonwealth v. Wolfe , 106 A.3d 900 (Pa.Super. 2014), a direct appeal matter holding that § 9718 was unconstitutional as a whole, the court vacated its order. The court directed the parties to address the Wolfe decision's impact on Appellant's case. Thereafter, the court denied Appellant relief. This timely appeal ensued. Appellant's sole issue on appeal is "Whether the mandatory sentences imposed upon Defendant are unconstitutional." Appellant's brief at 1.
Initially, Appellant erroneously maintains that Alleyne applies retroactively to his case based on Commonwealth v. Newman , 99 A.3d 86 (Pa.Super. 2014) (en banc). Newman , however, involved a direct appeal from a judgment of sentence. As this Court outlined in Commonwealth v. Watley , 81 A.3d 108 (Pa.Super. 2013) (en banc), a critical distinction exists between retroactivity for purposes of cases on direct appeal and on collateral review. Most recently, in Commonwealth v. Riggle , 2015 PA Super 147, this Court discussed in detail why Alleyne does not apply retroactively during collateral review.
Moreover, it is not the Alleyne decision that would entitle Appellant to relief if it was retroactively applied since the jury in this case did decide the facts essential to Appellant's increased punishment. Rather, it is this Court's extension of Alleyne , with respect to severability, in Commonwealth v. Wolfe , 106 A.3d 800 (Pa.Super. 2014), that would render Appellant's sentence illegal if that case were applied retroactively. Appellant argues that because this Court in Wolfe determined that § 9718 was unconstitutional as a whole and the provision offending Alleyne was not capable of being severed, the Court imposed an illegal sentence herein.
In Wolfe , this Court sua sponte raised and decided that, based on Newman , supra , and Commonwealth v. Valentine , 101 A.3d 801 (Pa.Super. 2014), § 9178 was unconstitutional in its entirety. Accordingly, we held that a sentence under § 9718 was illegal despite the lack of a jury trial right violation. The Wolfe panel further concluded that this Court's en banc Newman decision effectively overruled our earlier decision in Commonwealth v. Matteson , 96 A.3d 1064 (Pa.Super. 2014). In Matteson , a panel of this Court ruled that because the jury determined the age of the victim, which was the triggering fact for § 9718, the sentence therein was not illegal.
This author, joined by Judge Patricia Jenkins, authored a concurring decision in Commonwealth v. Wolfe , 106 A.3d 800 (Pa.Super. 2014), agreeing that we were bound by Commonwealth v. Newman , 99 A.3d 86 (Pa.Super. 2014) (en banc), and Commonwealth v. Valentine , 101 A.3d 801 (Pa.Super. 2014), but disagreeing with those decisions. Subsequently, the Pennsylvania Supreme Court, in a three-to-two decision, with the dissents adopting this author's position, declared that the school zone drug mandatory sentencing statute was unconstitutional in its entirety, essentially affirming this Court's decision in Newman. See Commonwealth v. Hopkins , ___ A.3d ___ (Pa. 2015) (filed June 15, 2015).
Since the severability issue was neither briefed nor argued in Wolfe , we were without effective advocacy on that question. Importantly, there are critical distinctions between the legislative drafting of 42 Pa.C.S. § 9718 and the mandatory sentencing statute struck down in Newman and our Supreme Court's later decision in Commonwealth v. Hopkins , ___ A.3d ___ (Pa. 2015) (filed June 15, 2015). Specifically, although 42 Pa.C.S. § 9718 currently contains the offending section deemed essential to passage of the mandatory sentencing statutes at issue in Newman and Hopkins , § 9718 did not originally contain that proviso. See 2006, Nov. 29, P.L. 1567, No. 178, § 4 (adding offending clause).
Indeed, that section was not added to the statute until 2006 and did not become effective until 2007. Similarly, 42 Pa.C.S. § 9717 still does not contain a burden of proof provision. Thus, in at least two instances, it is not only legally erroneous, but factually incorrect, to maintain that the legislature would not have enacted mandatory sentencing statutes without the burden of proof section. These facts were not raised or considered in Hopkins , Newman , or even Wolfe. It is beyond cavil that the legislature did pass § 9718 without the preponderance of evidence and non-element language deemed integral to the legislature's enactment of other mandatory sentencing statutes by Newman and Hopkins.
More importantly for our purposes, for similar reasons outlined in Riggle as to why Alleyne is not retroactive, Wolfe does not apply retroactively to petitioners during PCRA review. In Riggle , we recognized that "[t]he seminal test in determining whether a constitutional rule is new and warrants retroactive application during collateral review was delineated in Teague v. Lane , 489 U.S. 288 (1989) (plurality)[.]" Riggle , supra at *4. We further acknowledged, quoting Commonwealth v. Cunningham , 81 A.3d 1, 8 (Pa. 2013), that the Teague formulation "'is subject to potential refinement' and 'is not necessarily a natural model for retroactivity jurisprudence as applied at the state level.'" Riggle , supra at *4.
Nonetheless, we reasoned that Teague has been the settled retroactivity construct used by Pennsylvania courts in PCRA appeals. In Teague , the United States Supreme Court opined that, "a case announces a new rule when it breaks new ground or impose a new obligation on the States or the Federal Government." Teague , supra at 301. Teague further held that a new constitutional rule generally applies to cases still on direct review, but only applies retroactively to matters in a collateral proceeding if the rule is substantive or a watershed criminal procedural rule. See Riggle , supra (discussing Teague ).
Even assuming arguendo that Wolfe would qualify as a new constitutional rule, it does not meet the criteria of creating a substantive rule or a watershed procedural rule under the retroactivity paradigm. "Substantive rules are those that decriminalize conduct or prohibit punishment against a class of persons." Riggle , supra at *6. In contrast, a watershed procedural rule is one that "is necessary to prevent an impermissibly large risk of an inaccurate conviction and alters the understanding of the bedrock procedural elements essential to the fairness of a proceeding. Id. Wolfe does not decriminalize Appellant's conduct or categorically prohibit mandatory sentences against sex offenders. Therefore, it is not a substantive rule.
Further, Wolfe does not announce a watershed procedural rule, but merely applied severability precedent in construing legislative intent. In addition, the question of the age of the victim was already submitted to the jury and determined beyond a reasonable doubt, regardless of the status of the mandatory sentencing statute. The fundamental fairness of Appellant's trial and sentencing was not undermined by the Wolfe decision, which only did away with the mandatory sentencing statute. Appellant could have received an identical sentence without regard to the existence of that statute. Appellant is entitled to no relief.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2015