Opinion
J-S35006-17 No. 1042 WDA 2016
07-07-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. PAUL DAVID WEIMER Appellant
Appeal from the PCRA Order July 12, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011522-2010, CP-02-CR-0011523-2010, CP-02-CR-0011535-2010 BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E. OPINION BY LAZARUS, J.:
Former Justice specially assigned to the Superior Court.
Paul David Weimer appeals from the trial court's order dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. In 2011, Weimer was found guilty by a jury of 21 criminal counts relating to his sexual abuse of three adolescent boys, R.Z., M.G., and J.D. After careful review, we reverse the PCRA order, vacate the judgments of sentence for all three victims, and remand for resentencing.
See No. CC 201022522 (R.Z.); No. CC201011523 (M.G.); and No. CC 201011535 (J.D.).
A prior panel of this Court aptly set forth the procedural history of this case as follows:
[Weimer, who was forty years old,] was arrested on [August 5, 2010] and eventually charged, regarding [victim, J.D.] at 11535-2010, with involuntary deviate sexual intercourse ("IDSI"), unlawful contact with the minor, statutory sexual assault, indecent assault, furnishing liquor to minors, and two counts of corruption of minors; he was charged regarding [victim, J.C.] at 11524-2010, with unlawful contact with a minor, corruption of minors and open lewdness; regarding [victim, R.Z.], he was charged at 11522-2010 with two counts of rape, IDSI, unlawful contact with a minor, two counts of statutory sexual assault, endangering the welfare of children, corruption of minors, and furnishing liquor to minors; [and] regarding [victim, M.G.], he was charged at 11523-2010 with IDSI, indecent assault, endangering the welfare of children, and corruption of minors.Commonwealth v. Weimer , 133 WDA 2012 (Pa. Super. unpublished memorandum filed 8/1/13).
[* * *].
At the conclusion of the jury trial, [Weimer] was acquitted of all charges regarding [J.C.]; regarding [J.D.], he was convicted of furnishing liquor to minors, unlawful contact with a minor and two counts of corruption of minors, and acquitted of IDSI, statutory sexual assault and indecent assault; regarding [R.Z.], he was convicted of IDSI, unlawful contact with a minor, two counts of statutory sexual assault, endangering the welfare of children, corruption of minors, furnishing alcohol to minors, and acquitted of two counts of rape; regarding [M.G.], he was convicted of IDSI, indecent assault, endangering the welfare of children, and corruption of minors.
The Commonwealth gave notice of its intent to seek imposition of the 10-year mandatory minimum sentence for the IDSI convictions, pursuant to 42 Pa.C.S. § 9718(a). Prior to sentencing, the court held a hearing where it determined that Weimer met the criteria to be classified as a Sexually Violent Predator (SVP) under this Commonwealth's version of Megan's Law. On March 13, 2012, Weimer was sentenced to an aggregate term of imprisonment of 25-50 years. Specifically, the court sentenced Weimer to: consecutive sentences of 10-20 years of incarceration on each count of IDSI with regard to R.Z. and M.G., and a consecutive term of 5-10 years of incarceration for unlawful contact with a minor with regard to J.D. Weimer filed post-trial motions that were denied on August 2, 2012, save for the court granting Weimer two days of credit. Weimer filed a timely direct appeal; our Court affirmed his judgment of sentence on August 1, 2013. On November 27, 2013, the Pennsylvania Supreme Court denied Weimer's petition for allowance of appeal.
See 42 Pa.C.S.A. §§ 9791-9799.9. On December 20, 2011, the legislature enacted the Sex Offender Registration and Notification Act (SORNA), effective in one year, or December 20, 2012. Thus, at the time Weimer was sentenced, SORNA was not yet in effect. However, under SORNA he is now classified as a Tier III offender who will be a lifetime registrant. See 42 Pa.C.S.A. §§ 9799.14(d)(4), 9799.15(a)(3).
No further penalty was imposed on the remaining charges for which Weimer was convicted.
On April 7, 2014, Weimer filed a pro se PCRA petition. On April 14, 2014, the court appointed PCRA Counsel, Thomas Farrell, Esquire. On May 28, 2014, the court granted counsel's petition to appoint an investigator. On February 25, 2015, the trial court gave Weimer Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a hearing. On June 16, 2015, Attorney Farrell filed an amended PCRA petition on behalf of Weimer. On July 12, 2016, the court dismissed Weimer's petition. This timely collateral appeal follows. On appeal, Weimer presents the following issues for our consideration:
(1) Whether trial counsel gave ineffective assistance for failing to file a motion to withdraw, when there was a conflict of interest?
(2) Whether trial counsel gave ineffective assistance for failing to suppress evidence under the Fourth Amendment and Article I, Section 8[,] of the Pennsylvania Constitution?
(3) Whether trial counsel gave ineffective assistance for failing to object to the trial court's instruction that the Commonwealth did not have to prove beyond a reasonable doubt the date of the crime when the date of the crime was significant as to the age of the victim?
(4) Whether the trial court imposed an illegal sentence for the charges of involuntary deviate sexual intercourse when the trial court imposed mandatory sentences of ten to twenty years pursuant to 42 Pa.C.S. § 9718, which has been held to be facially unconstitutional?
(5) Whether the trial court imposed an illegal sentence of five to ten years of incarceration for unlawful contact with a minor?
(6) Whether the notice of intent to dismiss that was issued by the PCRA Court violated Rule 907(1) of the Pennsylvania Rules of Criminal Procedure?
The standard of review of an order dismissing a PCRA petition is whether that determination 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 the findings in the certified record. Commonwealth v. Johnston , 42 A.3d 1120, 1126 (Pa. Super. 2012).
We rely upon the opinion, authored by the Honorable Donna Jo McDaniel, to affirm issues one through three on appeal. First, Weimer has failed to show how either Attorney Collins or Attorney Allman "actively represented conflicting interests." Cuyler v. Sullivan , 446 U.S. 335 (1980). Moreover, to the extent that Weimer alleges Attorney Collins was ineffective in failing to file a motion to withdraw, we note that Weimer suffered no prejudice from this alleged misstep, where the trial court specifically concluded that it would not have granted such motion and where Attorney Allman adequately represented Weimer at trial. Second, Weimer cannot demonstrate that he was prejudiced by counsel's failure to seek to suppress a printout of an email exchange between himself and victim, J.C., which was introduced on J.C.'s redirect examination. The defense had, in fact, introduced the contents of that same email exchange, including a picture of a man later identified as J.C.'s friend, during cross-examination and also had it entered as a defense exhibit at trial. Third, the trial court did not need to charge the jury that it was required to determine, beyond a reasonable doubt, the exact date that the incidents occurred where the jury was instructed that, for purposes of the charged offenses, it did need to find that victims were under the age of sixteen when considering the IDSI offenses.
In his fourth issue on appeal, Weimer contends that his mandatory minimum sentences, imposed pursuant to 42 Pa.C.S. § 9718(a), are illegal "where the mandatory sentencing structure [of section 9718] is facially unconstitutional." Appellant's Brief, at 46.
Our Supreme Court has held section 9718 "irremediably unconstitutional on its face, non-severable, and void" under the principles espoused in Alleyne. See Commonwealth v. Wolfe , 140 A.3d 651, 663 (Pa. 2016). Moreover, because Weimer's judgment of sentence became final after Alleyne was decided, he is entitled to relief on his timely filed PCRA petition. See Commonwealth v. Ruiz , 131 A.3d 54, 59-60 (Pa. Super. 2015) (defendant can raise Alleyne challenge in timely PCRA petition so long as judgment of sentence not yet final when Alleyne decided on June 17, 2013); but see Commonwealth v. Washington , 142 A.3d 810, 820 (Pa. 2016) (Supreme Court has also held that Alleyne does not apply retroactively to cases pending on collateral review where judgment of sentence became final before Alleyne decided). Accordingly, the judgments of sentence as to offenses committed against R.Z. and M.G. (CC 201011522 and CC 201011523, respectively) must be vacated and remanded to the trial court for resentencing without application of the mandatory minimum sentence under section 9718.
Alleyne v. United States , 133 S. Ct. 2151, 2155 (2013) (holding that "[a]ny fact that, by law, increases the penalty for a crime is an 'element' that must be submitted to the jury and found beyond a reasonable doubt.").
We note that the trial court incorrectly cites to Commonwealth v. Matteson , 96 A.3d 1064 (Pa. Super. 2014), to conclude that section 9718 does not violate Alleyne principles. In Wolfe , supra , our Supreme Court held that "[ Commonwealth v.] Newman abrogated this Court's decision in Matteson " and that a sentence applying section 9718 is illegal. Id. 140 A.3d at 806.
Although we recognize the apparent viability of Commonwealth v. Ruiz , 131 A.3d 54 (Pa. Super. 2015), which held that a defendant could succeed on an Alleyne challenge in a timely PCRA petition if the defendant's judgment of sentence was not final at the time Alleyne was decided, the viability of that decision is currently under review. See Commonwealth v. Dimatteo , 2017 Pa. LEXIS 378 (filed 2/15/17) (granting petition for allowance of appeal, in case applying Ruiz , and denoting issue as whether decision conflicts with Washington and whether the panel "ordered inappropriate relief, in that, the panel vacated that portion of the plea defendant challenged and remanded for resentencing" and noted that "defendant . . . is not [entitled to relief].").
In his next issue, Weimer contends that the trial court imposed an illegal sentence of 5-10 years of imprisonment on the unlawful contact with a minor conviction with regard to victim J.D. Specifically, Weimer argues that because the jury was never instructed as to what crime(s) Weimer committed for purposes of engaging in the unlawful conduct under section 6318, the lowest graded offense of which he was acquitted (indecent assault (M-2)) must be assumed and the grading of the offense under section 6318(b)(2) should be no more than a third-degree felony.
We note that the proper grading of an offense is a challenge to the legality of a sentence. Commonwealth v. Tustin , 888 A.2d 843 (Pa. Super. 2005).
Unlawful contact with a minor is defined as:
(a) Offense defined. — A person commits an offense if he is intentionally in contact with a minor, or a law enforcement officer acting in the performance of his duties who has assumed
the identity of a minor, for the purpose of engaging in an activity prohibited under any of the following, and either the person initiating the contact or the person being contacted is within this Commonwealth:
18 Pa.C.S. § 6318(a). See Commonwealth v. Felder , 75 A.3d 513, 517 (Pa. Super. 2013) (subsection 6318(a) sets forth specific crimes that may constitute forms of unlawful contact). A section 6318 offense is graded as follows:(1) Any of the offenses enumerated in Chapter 31 (relating to sexual offenses).
(2) Open lewdness as defined in section 5901 (relating to open lewdness).
(3) Prostitution as defined in section 5902 (relating to prostitution and related offenses).
(4) Obscene and other sexual materials and performances as defined in section 5903 (relating to obscene and other sexual materials and performances).
(5) Sexual abuse of children as defined in section 6312 (relating to sexual abuse of children).
(6) Sexual exploitation of children as defined in section 6320 (relating to sexual exploitation of children).
(b) Grading. — A violation of subsection (a) is:
18 Pa.C.S. § 6318(b).(1) an offense of the same grade and degree as the most serious underlying offense in subsection (a) for which the defendant contacted the minor; or
(2) a felony of the third degree; whichever is greater.
In order to be convicted under section 6318, a defendant does not have to be convicted of the underlying offense for which he contacted the minor. Commonwealth v. Reed , 9 A.3d 1138 (Pa. 2010). In other words, the offenses designated in sections 6318(a)(1)-(6) are not predicate offenses for the offense of unlawful contact with a minor. Id. Rather, a defendant is guilty under section 6318 if he or she contacts the minor for the purpose of engaging in the prohibited behaviors criminalized in Chapter 31 and 18 Pa.C.S §§ 5901, 5902, 5903, 6312, and 6320 of the Crimes Code. In fact, the Commonwealth need not even separately charge a defendant with an underlying offense set forth in sections 6318(a)(1)-(6). However, if the Commonwealth does charge a defendant with an offense under sections 6318(a)(1)-(6), an acquittal is relevant for purposes of grading the section 6318 offense at sentencing under subsection 6318(b). Id.
Instantly, the trial court charged the jury, regarding the unlawful contact conviction as follows:
The defendant is charged with three counts of unlawful contact with a minor. The alleged victims are [J.C.], [J.D.] and [R.Z.]. In order to find the defendant guilty of this offense, you must find that each of the following elements has been proven beyond a reasonable doubt. First, that the defendant was intentionally in contact with a minor. Second, that the contact was for the purposes of engaging in an unlawful act; that is, the crimes listed in the information. And, third, that either the defendant or the person being contacted is within this Commonwealth.N.T. Jury Trial, 8/18/11, at 721-22 (emphasis added). See Commonwealth v. Reed , 9 A.3d 1138 (Pa. 2010) (tying grading of section 6318 conviction to how Commonwealth charges and presents its case to jury).
Contact is any direct or indirect communication by any means. A minor is an individual under the age of 18.
Here, the bill of information, which is relevant to how the jury was to determine Weimer's guilt regarding the crime of unlawful contact, states:
Notably, in the criminal complaint, the Commonwealth charged Weimer with unlawful contact with a minor under a different subsection, as follows:
18 [Pa.C.S. §] 6318[(a)(1)] UNLAWFUL CONTACT WITH MINOR - FELONY 1 OFFENSE ENUMERATED IN CHAPTER 31 Fl 1 COUNT
The actor intentionally contacted a minor namely, A KNOWN 14 YEAR-OLD MALE for the purpose of engaging in the activity of INVOLUNTARY DEVIATE SEXUAL INTERCOURSE in violation of 18 [§]Pa.C.S. §6318(a)(1).
The District Attorney of ALLEGHENY County, by this information charges that on (or about) Wednesday, the 1st day of March, 2006, through on (or about) Tuesday, the 17th day of August, 2010 in the said County of ALLEGHENY, PAUL DAVID WEIMER hereinafter called actor, did commit the crime or crimes indicated herein, that is
Count 2 UNLAWFUL CONTACT WITH MINOR Felony 2
The actor intentionally contacted a minor namely, John Doe, age 14 for the purpose of arranging actual or simulated sexual activity or nudity for the purpose of sexual stimulation or gratification of another person as defined in section 6320 namely, Involuntary
Criminal Information, 10/14/10, at 1 (emphasis added).Deviate Sexual Intercourse, in violation of Section 6318(a)(6) of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.C.S. §6318 (a)(6), as amended[.]
Section 6320 delineates the crime of "sexual exploitation of children," not involuntary deviate sexual intercourse, which is found at 18 Pa.C.S. § 3123(a)(1). Sexual exploitation of children is defined as:
(a) Offense defined. — A person commits the offense of sexual exploitation of children if he procures for another person a child under 18 years of age for the purpose of sexual exploitation."Sexual exploitation." —Actual or simulated sexual activity or nudity arranged for the purpose of sexual stimulation or gratification of any person.
(b) Penalty. — An offense under this section is a felony of the second degree.
(c) Definitions. — As used in this section, the following words and phrases shall have the meanings given to them in this subsection:
"Procure." —To obtain or make available for sexual exploitation.
In Commonwealth v. Aikens , 139 A.3d 244 (Pa. Super. 2016), our Court recently addressed a similar grading issue with regard to the defendant's unlawful contact with a minor conviction under section 6318(a)(1). In Aikens , the Commonwealth filed its information charging the defendant with: unlawful contact with a minor, corruption of minors, IDSI, statutory sexual assault, and indecent exposure. The defendant was found guilty of the unlawful contact and corruption charges; the jury acquitted him of IDSI and the remaining charges were nolle prossed. The trial court graded the defendant's section 6318 conviction as a first-degree felony, based on its charge to the jury, which stated:
We note that the Pennsylvania Supreme Court recently granted allowance of appeal in Aikens limited to the issue of whether "the court illegally sentence[d] Aikens on unlawful contact with a minor graded as an F-1 when it should have been graded as an F-3"? See Commonwealth v. Aikens , 268 EAL 2016 (Pa. filed 11/2/16).
[Defendant] has been charged with unlawful contact with a minor. To find [Defendant] guilty of this offense, you must find that each of the following elements has been proven beyond a reasonable doubt: First, that [Defendant] was intentionally in contact for the purpose of engaging in an unlawful act - and in this case, that unlawful act is alleged to be [IDSI], the crime that we just discussed, that I just defined for you[.]Id. at 247-48 (emphasis in original). The Court concluded that because the trial court's charge made it clear to the jury that the defendant was only accused of contacting the minor for one specific offense, IDSI, when the jury returned a verdict of guilt under section 6318, "it must have concluded, as a matter of fact, that [Defendant] contacted the victim for the purpose of engaging in IDSI." Id. at 248. Accordingly, the Court affirmed the grading of the section 6318 offense as a first-degree felony where "the jury did find that a first-degree felony was the 'most serious underlying offense . . . for which the defendant contacted the minor.'" Id.
Unlike the case in Aikens , here the trial court did not charge the jury with regard to the specific offense for which Weimer was accused of contacting the victim for purposes of section 6318. Therefore, we do not know the "most serious underlying offense . . . for which Weimer contacted the minor" for purposes of grading the offense under section 6318(b). See Felder , supra at 517 ("language of section 6318 expressly requires a factual determination of the crime 'for which the defendant contacted the minor' in order to determine proper grading."). Because of this, the trial court would have had to have guessed what crime Weimer sought to commit when he contacted the minor. This is neither permitted nor intended under the statute. Reed , supra ; Aikens , supra.
Based on these facts, we conclude that the section 6318(b)(2) default third-degree felony grading should have been applied where Weimer was acquitted of all charged section 6318(a) offenses, Reed , supra , and where the court's charge to the jury did not make it clear for which section 6318(a) offense Weimer was accused of contacting the minor. See Aikens , supra at 644 (where sentencing court would have to guess at which offense defendant sought to commit under section 6318, "[w]e cannot countenance that result."). Thus, the court's 5-10 year sentence of imprisonment for Weimer's unlawful contact conviction with regard to victim J.D. is illegal where a third-degree felony under section 6318(b)(2) carries a statutory maximum sentence of seven years' imprisonment. Accordingly, we vacate the judgment of sentence as it relates to victim J.D. (CC 201011535) and remand for resentencing.
Moreover, even if the jury had read the information for purposes of determining what, if any, of the crimes listed in it may have constituted the underlying offense for which Weimer contacted J.D., our decision about grading the offense would not change. The discrepancies in the Commonwealth's bill of information create further confusion with regard to exactly which subsection of section 6318, and its delineated crimes, the Commonwealth intended to use as the "underlying offense." While the information states that Weimer contacted J.D. for "the purpose of arranging actual or simulated sexual activity or nudity for the purpose of sexual stimulation or gratification of another person as defined in section 6320," the information later states that the underlying offense is the crime of IDSI, found at section 3123. See supra nn.9-10. These crimes not only have differing elements, but are also graded differently.
In his final issue on appeal, Weimer contends that he is entitled to relief due to the court's defective Rule 907 notice of its intent to dismiss his PCRA petition without a hearing. Specifically, Weimer asserts that because the court's notice failed to explain the reasons for the intended dismissal and what defects, if any, were in his petition, he has effectively been denied his right to file an amended petition to correct any defects under Pa.R.Crim.P. 905(a).
Weimer is correct in asserting that a Rule 907 pre-dismissal notice affords a petitioner the opportunity to seek leave to amend his petition and correct any material defects. Commonwealth v. Rykard , 55 A.3d 1177, 1189 (Pa. Super. 2012) (citing Commonwealth v. Williams , 782 A.2d 517, 526 (Pa. 2001)). The ultimate goal of this process is to permit merit review by the PCRA court of potentially arguable claims. Id.
While the trial court's Rule 907 notice did not specifically list the court's reasons for its intent to dismiss Weimer's petition or any perceived defects in Weimer's petition, we recognize that the court had previously granted counsel the opportunity to amend Weimer's pro se petition and also granted Weimer leave to submit pro se supplements to his petition. Moreover, in the four and one-half months that elapsed between the Rule 907 notice and the order dismissing Weimer's petition, the court accepted numerous filings submitted on Weimer's behalf, including a supplemental petition certifying witnesses, pro se and counseled responses and objections to the Rule 907 notice, and a supplemental PCRA petition. The court acknowledged that it considered "the responses filed to [its] notice of intention to dismiss." Order Dismissing Post Conviction Petition without a Hearing, 7/12/16. Under these circumstances, we find no merit to this issue on appeal. See Commonwealth v. Albrecht , 720 A.2d 693 (Pa. 1998) (under Pa.R.Crim.P. 1507(a), predecessor to Rule 907, Supreme Court found no defect in notice of intent to dismiss PCRA petition without hearing where petitioner could not demonstrate violation of rule because he was afforded both further proceedings and opportunity to present arguments in support of petition, which is all rule requires).
To the extent that Weimer filed pro se supplemental petitions in the court below, we note that the record reflects that he was still represented by Attorney Farrell. Although counsel filed a motion to withdraw, the trial court never granted that motion. In fact, Attorney Farrell remains listed as counsel on appeal. See Pa.R.Crim.P. 576(a)(4) (pro se filings of represented litigants); Commonwealth v. Ellis , 626 A.2d 1137 (Pa. 1993).
Order reversed. Judgments of sentence vacated. Case remanded for resentencing consistent with this opinion. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/7/2017
We instruct the parties to attach a copy of Judge McDaniel's opinion in the event of further proceedings in the matter.
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