Opinion
J-S18021-16 No. 705 MDA 2015
04-26-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. DONALD JOHN MCCAUSLIN, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order March 30, 2015
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0002304-2011 BEFORE: BOWES, J., LAZARUS, J., and STRASSBURGER, J. MEMORANDUM BY LAZARUS, J.:
Retired Senior Judge assigned to the Superior Court.
Donald John McCauslin, Jr., appeals from the order of the Court of Common Pleas of Cumberland County that denied his petition filed pursuant to the Post-Conviction Relief Act (PCRA). Counsel for McCauslin has filed with this Court a Turner/Finley brief and an application to withdraw as counsel. After our review, we affirm the PCRA court's order based, in significant part, on the opinion of the Honorable Kevin A. Hess, and grant counsel's petition to withdraw.
Commonwealth v. Turner , 544 A.2d 917 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988).
On May 2, 2012, a jury convicted McCauslin of aggravated indecent assault, indecent assault, and corruption of minors. On November 6, 2012, the court sentenced McCauslin to a term of twenty-two to forty-eight months' incarceration and ordered him to register as a sex offender.
McCauslin filed a timely appeal of his judgment of sentence, which this Court affirmed on November 19, 2013. Commonwealth v. McCauslin , 91 A.3d 1289 (Pa. Super. 2013) (unpublished memorandum). McCauslin filed a pro se PCRA petition on September 24, 2014, raising several issues including ineffective assistance of trial counsel. On October 2, 2014, the court ordered the Public Defender's Office to represent McCauslin and directed it to file an amended PCRA petition within thirty days. On December 16, 2014, Deputy Public Defender Michael Halkias filed a motion for a continuance of the PCRA hearing scheduled for January 5, 2015, and sought an extension to file an amended PCRA petition. By order dated December 22, 2015, the court rescheduled the hearing for February 5, 2015, and directed Attorney Halkias to file an amended petition by January 16, 2015.
Attorney Halkias did not file an amended petition. However, at the commencement of the February 5, 2015 hearing, counsel reviewed with McCauslin all of the issues that he raised in his pro se petition. Counsel also gave McCauslin the opportunity to raise additional issues, which included whether the trial court erred in failing to merge aggravated indecent assault, indecent assault, and corruption of minors for purposes of sentencing.
The Commonwealth then presented the testimony of McCauslin's trial counsel, Joseph Caraciolo, Esquire. The court filed an opinion and order denying the PCRA petition on March 30, 2015.
McCauslin filed a timely appeal raising the following issues for our review:
1. Defense counsel was ineffective by failing to provide transcripts to [McCauslin] within a timely manner for the purposes of collateral relief.
2. Defense counsel was ineffective by failing to properly challenge [the] trial court's order that [McCauslin] register for the remainder of his life pursuant to SORNA.
3. Defense counsel was ineffective for not objecting to the number of charges, on the grounds that they should have been reduced to remove redundant and/or merged charges, and further objecting to the sufficiency of charges before and during trial.
4. Defense counsel was ineffective for not properly objecting to and appealing the trial court's jury instructions.
5. Defense counsel was ineffective for failing to interview and call witnesses on [McCauslin's] behalf.
6. Defense counsel was ineffective on appeal because he failed to challenge the suppression of audio recordings.
7. Defense counsel was ineffective for failing to challenge the sufficiency of the evidence in light of the numerous inconsistencies of the alleged victim.
8. Defense counsel was ineffective by convincing McCauslin to admit to having intercourse with the victim.
9. Defense counsel was ineffective by failing to raise evidence demonstrating that [McCauslin] had no prior convictions.
10. Defense counsel was ineffective for failing to introduce evidence that the victim made prior allegations to CYS that were determined to be unfounded.
11. Defense counsel was ineffective for failing to introduce evidence of lack of hue and cry.Turner/Finley Brief, at 5-7.
12. Defense counsel was ineffective for inadequately raising impeachment evidence which would contradict the testimony of [victim] and [victim's mother].
13. Defense counsel was ineffective for failing to object to . . . [the] testimony of Julian Darden [a friend of the victim].
14. Defense counsel was ineffective for failing to object to Commonwealth's exhibit [no.] 1. [victim's school photo from third grade].
15. Defense counsel was ineffective for failing to investigate and search the home of [victim's mother].
16. Defense counsel was ineffective for failing to interview or present Ryan Duntant [a family friend] as a witness.
17. [McCauslin's] constitutional rights were violated when the court erred in failing to maintain a full accurate record of proceedings, including voir dire, opening statements, and closing arguments.
18. The Commonwealth violated the ABA Rules of Professional Conduct by failing to correct the false testimony of a witness.
19. The Commonwealth violated the ABA Rules of Professional Conduct by prosecuting charges for which they have no probable cause.
20. [McCauslin's] sentence was illegal.
The proper mechanism for withdrawal on appeal from the denial of a PCRA petition is to file a no-merit letter. Nevertheless, we will accept the brief in lieu of a letter. See Commonwealth v. Widgens , 29 A.3d 816, 817 n.2 (Pa. Super. 2011).
Our standard of review regarding a PCRA court's order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for those findings in the certified record. Commonwealth v. Garcia , 23 A.3d 1059, 1061 (Pa. Super. 2011) (citing Commonwealth v. Smith , 995 A.2d 1143, 1149 (Pa. 2010)).
First, we determine whether PCRA counsel has complied with the technical requirements of Turner/Finley :
Counsel petitioning to withdraw from PCRA representation must proceed under [ Turner/Finley and] . . . must review the case zealously. Turner/Finley counsel must then submit a "no-merit" letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel's diligent review of the case, listing the issues which petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw. Counsel must also send to the petitioner: (1) a copy of the "no merit" letter/brief; (2) a copy of counsel's petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel. Where counsel submits a petition and no-merit letter that satisfy the technical demands of Turner/Finley , the court — trial court or this Court — must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief.Commonwealth v. Doty , 48 A.3d 451, 454 (Pa. Super. 2012) (citations omitted). If counsel's petition and no-merit letter satisfy Turner/Finley , we then conduct an independent review of the merits of the case. If this Court agrees with counsel that the claims are meritless, we will permit counsel to withdraw and deny relief. Commonwealth v. Wrecks , 931 A.2d 717, 721 (Pa. Super. 2007) (citing Commonwealth v. Mosteller , 633 A.2d 615, 617 (Pa. Super. 1993)).
On November 25, 2015, McCauslin's counsel, Michael Halkias, Esquire, filed with this Court a petition for leave to withdraw as counsel, averring that after numerous conversations with McCauslin, he determined that an appeal would be frivolous. Attached to the motion is a letter to McCauslin informing him of this conclusion as well as McCauslin's right to retain counsel or proceed pro se. Attorney Halkias also provided McCauslin with a copy of the brief, in which he set forth the issues McCauslin wished to raise. Accordingly, counsel has complied with the Turner/Finley requirements.
We have conducted an independent review of the record, and conclude that the opinion authored by President Judge Hess in support of the order denying McCauslin's PCRA petition thoroughly and comprehensively addresses Issues 1-19 raised by McCauslin on appeal.
However, we separately address McCauslin's claim that his sentence was illegal. In denying relief, the PCRA court erroneously determined that the issue was not eligible for relief pursuant to section 9543 because McCauslin failed to allege an error that "was the result of a greater-than-permissible sentence." PCRA Court Opinion, 3/30/15, at 9. Instead, the PCRA court reasoned, McCauslin "provided only vague and generalized allegations of error which have no factual basis or legal reasoning." Id. Attorney Halkias adopted this flawed analysis in his Turner/Finley brief, noting that McCauslin's claim that "[his] sentence was illegal in that [the] charges were not properly merged . . . fail[s] to meet the requirements of 42 Pa.C.S.A. § 9543(a)(2) and therefore may not form the basis for a meritorious PCRA claim." Turner/Finley brief, at 19. While counsel is correct in finding that McCauslin's claim in not meritorious, his eligibility analysis is erroneous.
The fact that the trial court imposed concurrent sentences for each of the three convictions does not render the purported error harmless. Where crimes merge for the purpose of sentencing, a penalty cannot legally be imposed on the lesser-included offense. "An illegal sentence must be vacated." Commonwealth v. Nero , 58 A.3d 802, 806 (Pa. Super. 2012).
Section 9543 provides that in order to be eligible for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence several facts, including, "[t]hat the conviction or sentence resulted from[:] (vii) The imposition of a sentence greater than the lawful maximum." 42 Pa.C.S. § 9543(a)(2)(vii). "A claim that crimes should have merged for sentencing purposes raises a challenge to the legality of the sentence." Commonwealth v. Quintua , 56 A.3d 399, 400 (Pa. Super. 2012). "It is beyond cavil that illegal sentencing claims pertaining to a sentence that exceeds the lawful maximum are cognizable under the PCRA." Commonwealth v. Concordia , 97 A.3d 366, 372 (Pa. Super. 2014).
McCauslin raised the merger issue in his pro se PCRA petition and attempted to establish the claim at the PCRA hearing.
Section 9765 of the Sentencing Code, which governs merger of sentences, provides:
No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of the offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.42 Pa.C.S. § 9765.
Here, McCauslin was convicted of aggravated indecent assault, indecent assault and corruption of minors.
Aggravated indecent assault is defined, in relevant part, as follows:
§ 3125. Aggravated indecent assault
(a) Offenses defined. - [A] person who engages in penetration, however slight, of the genitals or anus of a complainant with a part of the person's body for any purpose other than good faith medical, hygienic or law enforcement procedures commits aggravated indecent assault if:
18 Pa.C.S. § 3125(a)(1).(1) the person does so without the complainant's consent[.]
Indecent assault is defined, in relevant part, as follows:
§ 3126. Indecent assault
(a) Offense defined. - A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purposes of arousing sexual desire in the person or the complainant and:
18 Pa.C.S. § 3126(a)(1). "Indecent contact" is defined as "[a]ny touching of the sexual or intimate parts of the person for the purpose of arousing or gratifying sexual desire, in any person." 18 Pa.C.S. § 3101.(1) the person does so without the complainant's consent[.]
Corruption of minors is defined, in relevant part, as follows:
§ 3101. Corruption of minors18 Pa.C.S. § 6301(a)(1)(i).
(a) Offense defined. -
[W]hoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of any crime, or who knowingly assists or encourages such minor in violating his or her parole or any order of court, commits a misdemeanor of the first degree.
Because the element of corruption of minors includes "any act [that] corrupts or tends to corrupt" and requires neither indecent contact, sexual contact, nor lack of consent, this offense does not merge with either of the remaining convictions for purposes of sentencing. See e.g. Commonwealth v. Leatherby , 116 A.3d 732 (Pa. Super. 2015) (noting that corruption of minors would not merge with indecent assault); Commonwealth v. Fisher , 787 A.2d 992, 995 (Pa. Super. 2011) ("[B]y their statutory elements alone, the offense of corruption of a minor is not necessarily a lesser-included offense of indecent assault."); Commonwealth v. Hitchcock , 565 A.2d 1159, 1162 (Pa. 1989) ("A corruption of minors charge, therefore, encompasses any such act, the consequences of which transcends any specific sex act and is separately punishable."). Therefore, this aspect of MCauslin's merger claim is without merit.
We next consider McCauslin's claim that his convictions for indecent assault and aggravated indecent assault merge. In Commonwealth v. Allen , 856 A.2d 1251 (Pa. Super. 2014), we examined the relationship between indecent assault and aggravated indecent assault in the context of double jeopardy and determined that since each offense required an element that the other did not, neither crime could be considered a lesser-included offense. We reasoned that (1) aggravated indecent assault required penetration of the genitals or anus of the victim, an element that was not required in order to commit indecent assault; and (2) indecent assault required proof of the purpose of arousing sexual desire, which is not an element of aggravated indecent assault. Id. at 1254. As it relates to the instant matter, the Allen Court's finding that indecent assault and aggravated indecent assault were not greater-and-lesser included offenses necessitates the corresponding conclusion that the PCRA Court did not err in failing to merge those offenses for purposes of sentencing.
We affirm the PCRA court's determination that McCauslin is not entitled to relief on his merger claim, albeit for different reasons. With respect to all other issues, we affirm the order of the PCRA court based on President Judge Hess' decision. We direct the parties to attach that decision in the event of further proceedings in the matter.
Order affirmed. Application to withdraw as counsel granted. BOWES, J., joins the memorandum. STRASSBURGER, J., concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/26/2016
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