J-S58035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                    Appellee               :
                                           :
              v.                           :
                                           :
PHILLIP D. COLTON                          :
                                           :
                    Appellant              :          No. 151 MDA 2017

           Appeal from the Judgment of Sentence November 9, 2016
                In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-CR-0000454-2013


BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                        FILED DECEMBER 28, 2017

        Appellant, Philip D. Colton, appeals from the amended judgment of

sentence, imposed in the Centre County Court of Common Pleas, following

remand for resentencing on Appellant’s convictions for numerous sex

offenses    committed    against   the   mentally   disabled   granddaughter   of

Appellant’s paramour. We affirm.

        The trial court opinion fully and correctly set forth the relevant facts

and procedural history of this case. Therefore, we have no reason to restate

them.

        Appellant raises one issue on appeal:

           DID THE SENTENCING COURT ERR IN IMPOSING TWO
           SEPARATE SENTENCES ON CENTRE COUNTY CRIMINAL
           INFORMATION NO. CP-14-CR-454-2013, COUNT 1, RAPE,
           MENTALLY DISABLED PERSON, 18 PA.C.S.A. § 3121(A)(5),
           AND COUNT 2, RAPE OF A CHILD, 18 PA.C.S.A. § 3121(C),
           FOR ONE SINGLE ACT OF RAPE?
J-S58035-17



(Appellant’s Brief at 9).

      Appellant argues he should not be subject to two separate sentences

at Centre County Criminal Information No. CP-14-CR-454-2013, Count 1,

Rape, Mentally Disabled Person at 18 Pa.C.S.A. § 3121(A)(5), and Count 2,

Rape of a Child at 18 PA.C.S.A. § 3121(C), for one single act of rape.

Appellant contends the Commonwealth charged only a single act of rape,

which cannot support a separate sentence for violating two subsections of

the same statute, despite the fact that the evidence supports both

convictions.   Appellant claims the court’s imposition of more than one

punishment for a single offense conflicts with the fundamental principles of

double jeopardy prohibition against multiple punishments for the same

offense.    Appellant concludes this Court should vacate the judgment of

sentence on Count 2 at Criminal Information No. 0454-2013, because it is

merely an alternative for the same Rape offense punished in Count 1. We

disagree.

      Whether crimes merge for sentencing purposes implicates the legality

of the sentence.       Commonwealth v. Tanner, 61 A.3d 1043, 1046

(Pa.Super. 2013).     Therefore, our standard of review is de novo and our

scope of review is plenary. Id. Merger of sentences is governed generally

by Section 9765 of the Sentencing Code, which provides:

           § 9765. Merger of sentences




                                    -2-
J-S58035-17


         No crimes shall merge for sentencing purposes unless the
         crimes arise from a single criminal act and all of the
         statutory elements of one 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.A. § 9765. “[T]he language of the legislature is clear. The only

way two crimes merge for sentencing is if all elements of the lesser offense

are included within the greater offense.”       Commonwealth v. Coppedge,

984 A.2d 562, 564 (Pa.Super. 2009) (stating cases decided before effective

date of Section 9765 are not instructive in merger analysis; regardless of

whether facts of particular case comprise both crimes; if elements of crimes

differ, i.e., if one offense can be committed without committing other

offense, crimes do not merge under legislative mandate of Section 9765).

      The Crimes Code defines the offenses of rape of a child and rape of a

mentally disabled person, in relevant part, as follows:

         § 3121. Rape

         (a)      Offense defined.−A person commits a felony of
         the first degree when the person engages in sexual
         intercourse with a complainant:

                                  *    *    *

            (5) Who suffers from a mental disability         which
            renders the complainant incapable of consent.

                                  *    *    *

            (c) Rape of a child.−A person commits the offense
         of rape of a child, a felony of the first degree, when the
         person engages in sexual intercourse with a complainant
         who is less than 13 years of age.

                                      -3-
J-S58035-17



18 Pa.C.S.A. § 3121(a)(5), (c).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Katherine V.

Oliver, we conclude Appellant’s issue merits no relief.      The Trial Court

opinion fully discusses and properly disposes of the question presented.

(See Trial Court Opinion, filed April 10, 2017, at 3-6) (finding: merger of

offenses on Counts 1 and 2 at Criminal Information No. 0454-2013 for

sentencing is prohibited, unless offenses arose from single criminal act and

all statutory elements of one offense are included in other; although single

criminal act gave rise to Counts 1 and 2 at Criminal Information No. 0454-

2013, each offense includes element other does not; Count 1, rape of

mentally disabled person, includes element that victim was mentally

disabled, which is not element of offense of rape of child; Count 2, rape of

child, includes element that victim was child less than 13 years of age, which

is not element of rape of mentally disabled person; merger of sentences for

Counts 1 and 2 is therefore prohibited; imposing separate sentences for

each offense did not violate double jeopardy guarantees under state or

federal constitution).   The criminal conduct at issue involved a single

criminal act, but the charges at Counts 1 and 2 each include an element that

the other does not. Thus, merger for sentencing was unwarranted; and the

separate sentences imposed must stand. Accordingly, we affirm.

      Judgment of sentence affirmed.

                                    -4-
J-S58035-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/28/17




                          -5-
                                                                            IIIII IMllll!ll�I
                                                                               Circulated 11/27/2017 02:59 PM
                                                                                             OOD0tlTT9     ctGPR0lD1812




     IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA
                       CRIMINAL ACTION-LAW


COMMONWEALTH OF PENNSYLVANIA                         )
                                                     )
                   v.                                )       No. CP-14-CR-454-2013
                                                     )       No. CP-14-CR-531-2014
PHILLIP D. COL TON                                   )
                                                     )
               Defendant                             )

Attorneyfor the Commonwealth:                                Stacy Parks Miller, Esq.
Attorneyfor Defendant:                                       Deborah Lux, Esq.

Oliver, J.
                                        1925(a) OPINION

        Defendant Phillip Colton appeals from a sentence imposed on November 9, 2016.
Defendant was sentenced on that date at Centre County Criminal Information No.'s 454-2013
and 531-2014. In his appeal, Defendant contends that the Court's sentences imposed at Counts 1
and 2 oflnformation No. 454-2013 violate Defendant's double jeopardy rights under the federal
and state constitutions.

        Defendant filed a post-sentence motion on November 18, 2016, which was denied after

argument on December 30, 2016. Defendant filed a notice of appeal and a timely.1925(b)
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statement pursuant to this Court's 1925(b) Order. The Court issues this Opinion put�µ�t toe;
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        Following a jury trial on July 1, 2014, Defendant Phillip Colton was convi.§letf of
numerous sex crimes stemming from sexual offenses committed over a three year period against
his paramour's granddaughter, a mentally disabled minor.

        Defendant was first sentenced on September 23, 2014 by the Honorable Bradley P.
Lunsford. The aggregate state prison sentence imposed by Judge Lunsford was 30 to 60 years.
Defendant challenged his sentence on appeal, arguing that the mandatory minimum sentences

 imposed by the Court pursuant to 42 Pa.C.S. §9718 were illegal under Alleyne v. United States,


lo DRDDS
133 S. Ct. 2151 (2013). The Superior Court agreed that the mandatory minimum sentences were
illegal. Finding that vacating these sentences upset the overall sentencing scheme, the Superior
Court vacated Defendant's judgment of sentence in its entirety and remanded the matter for re-
sentencing.' (Superior Ct. Opin. and Order, Feb. 5, 2016).

        Following remand, a sentencing hearing was conducted on November 9, 2016. At the
hearing, the Court noted the intent to follow the general principle that a greater aggregate
sentence should not be imposed on resentencing after a successful appeal so as not to punish
Defendant for exercising his appeal rights. (See Tr. Nov. 9, 2016 Hr'g, at p. 28). The Court also
expressed the belief that a lesser sentence was not warranted in this case, and noted that, in
devising the overall sentence, the Court had attempted to attach periods of incarceration to the
various different incidents and crimes while staying within the 30 to 60 year aggregate. (Id. p.
29).

        In re-sentencing, the Court imposed an aggregate incarceration sentence of 30 to 60
years, broken down as follows:

Information No. 454-2013

        Count 1, Rape of a Mentally Disabled Person ( 18 Pa. C. S. §3121 (a)( 5)): 4 - 8 years

        Count 2, Rape ofa Child (18 Pa. C.S.A. § 3121(c)): 6 -12 years

Sentences of incarceration for Counts 7 and 8 were concurrent to Count 2. There was no
separate sentence for Counts 3-6. Count 10 merged for purposes of sentencing. Count 9 was no!
prossed at the direction of the Commonwealth.

Information No. 531-2014

        Count 1, Rape of a Mentally Disabled Person (18 Pa.C.S. §3121(a)(5)): 5-10 years

         Count 2, Rape of a Mentally Disabled Person (18 Pa.C.S. §312l(a)(5)): 5-10 years

         Count 3, Rape of a Mentally Disabled Person (18 Pa.C.S. §3121(a)(5)): 5-10 years


 Defendant was not successful on all of the issues pursued on appeal to the Superior Court, and filed a Petition for
 I

Allowance of Appeal to the Pennsylvania Supreme Court. Defendant's Petition was denied by Order dated July 27,
2016.

                                                          2
          Count 22, Aggravated Indecent Assault of a Child (18 Pa.C.S. § 3125(b)): 5-10 years

Sentences of incarceration at Counts 24, 37-40, 48, 51, 59 and 62 were imposed as concurrent
sentences.'

          The conduct giving rise to the various charges against Defendant in the two Informations
involved twelve incidents. The conduct giving rise to the charges at Information No. 454-2013
involved two separate incidents. The charges at Counts 1 and 2, however, arose from a single
incident of rape. In his appeal, Defendant contends that the Court erred by imposing two
separate sentences for the rape charges at Counts 1 and 2 ofinformation No. 454-2013, both
violations of 18 Pa. C. S. § 3121 albeit different subsections of that statute, because there was only
one underlying act ofrape. (See Def's, Post-Sentence Mot., at 17-18). Specifically, Defendant
contends that imposing separate punishments for violations of more than one subsection of the
same criminal statute violates fundamental principles of double jeopardy when the underlying
conduct involves but one act. (See id.). Defendant requests that his sentence at Count 2 of
Information No. 454-2013 be vacated.

                                                   Discussion

          Resolution of Defendant's sentencing challenge is governed by 42 Pa.C.S. § 9765,
Pennsylvania's statutory mandate pertaining to merger of sentences. Pursuant to section 9765:

                   No crimes shall merge for sentencing purposes unless the crimes
                   arise from a single criminal act and all of the statutory elements of
                   one 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. The Pennsylvania Supreme Court has interpreted section 9765 as prohibiting
merger unless: (1) the crimes at issue arise from a single criminal act, and (2) all statutory
elements of one of the offenses are included in the statutory elements of the other.
Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009). In Baldwin, the Court characterized
section 9765 as a clear expression of the legislature's intent with respect to merger and the ability
to punish separate offenses arising from the same conduct so long as each offense includes an
element that the other does not. See Baldwin, 985 A.2d at 834-83 7. The Court also determined

2   Defendant was convicted on numerous other Counts for which incarceration sentences were not imposed.

                                                          3
that, in the context of this clear legislative intent, double jeopardy is not implicated. Id. at 837.
After reviewing the history of double jeopardy jurisprudence and the merger doctrine, the
Baldwin Court stated:

                [W]e reject Appellant's claim that the legislature's decision to
                impose an elements test for merger of sentence violates double
                jeopardy protections. Indeed, the [United States Supreme] Court
                has explained: "[T]he Fifth Amendment double jeopardy
                guarantee serves principally as a restraint on courts and
                prosecutors. The legislature remains free under the Double
                Jeopardy Clause to define crimes and fix punishments .... "

Id. at 836. The crimes at issue in Baldwin were violations of 18 Pa.C.S. § 6106 and§ 6108,
carrying a firearm without a license and carrying a firearm on public streets or property of
Philadelphia. Both violations were based on a single criminal act. Based on the analysis
discussed above, the Baldwin Court concluded that the offenses did not merge, and that the
imposition of separate sentences did not violate the double jeopardy clause under the federal
constitution. Id. at 83 7.

        In Commonwealth v. Wade, 33 A.3d 108 (Pa. Super. 2011), appeal denied, 51 A.3d 839
(Pa. 2012), the Pennsylvania Superior Court extended the Baldwin analysis to double jeopardy
challenges under the Pennsylvania constitution. In that case, the defendant was convicted and
sentenced for the crimes of robbery-threat of serious bodily injury and robbery of a motor
vehicle. Id. at 113. Both convictions resulted from a single criminal act when the defendant
threatened the owner of a vehicle while in the process of stealing it. Id. at 117-18. The
defendant in Wade argued that the robbery offenses were cognate offenses, that the facts
underlying his convictions for each were identical, and that merger statute (section 9765), as
applied in his case, violated the Pennsylvania Constitution's bar against double jeopardy. Id. at
116-17. The Superior Court disagreed, finding that the United States Supreme Court has rejected
double jeopardy challenges under the federal constitution in similar circumstances, and that there
is an absence of authority to suggest that the Pennsylvania Constitution's double jeopardy clause
affords greater protection in the context of merger than does the federal constitution. The Court
ultimately concluded that "the framers of the Pennsylvania Constitution never intended to restrict
the legislature, via our double jeopardy clause, from defining merger of sentence issues." Id. at
 121.

                                                    4
       In the case at bar, Defendant argues that imposition of separate sentences at Information
No. 454-2013 for Counts 1 and 2, Rape of a Mentally Disabled Person and Rape of a Child, ran
afoul of the double jeopardy clauses in the federal and state constitutions and, thus, resulted in an
illegal sentence. (See Def's Concise Statem., at 12). Based on the authorities discussed above,
the Court concludes that Defendant's double jeopardy challenge lacks merit. As recognized in
Baldwin, the intent of the legislature that separate punishments be permissible for violations of
these two statutory provisions is clearly expressed in Pennsylvania's merger statute, 42 Pa.C.S. §
9765. Merger of offenses for sentencing is prohibited unless the offenses arise from a single
criminal act and all statutory elements of one offense are included in the other. Id. at 833.

        In the instant case, although the criminal conduct giving rise to the rape charges at
Information No. 454-2013 involved a single criminal act, the rape of the victim, the crimes
charged at Counts 1 and 2 each include an element that the other does not. Count 1, Rape of a
Mentally Disabled Person, includes the element that the victim was mentally disabled, an
element not included in the offense of Rape of a Child. On the flip side, the elements of Rape of
a Child include the element that the victim was a child less than 13 years of age, an element not
included in the offense of Rape of a Mentally Disabled Person. (See 18 Pa.C.S. §3121(a)(5), (c);
Pa. Standard Crim. Jury Instructions, 15.3121B, D). Thus, section 9765 prohibits merger, and
imposing separate sentences for each offense was not a violation of the double jeopardy
guarantees under the state or federal constitution.

        Defense counsel cites to Commonwealth v. Dobbs, 682 A.2d 388 (Pa. Super. 1996) and
Commonwealth v. Rhoads, 636 A.2d 1166 (Pa. Super. 1994) as supporting the argument that
double jeopardy prohibits separate sentences for Counts 1 and 2. These cases, which were
decided before the enactment of Pennsylvania's merger statute, 42 Pa.C.S. § 9765, are
inapposite.

        Finally, the Court also notes that, during argument on Defendant's post-sentence motion,
Defendant took the position that, because he was challenging only the sentences at Counts 1 and
2 oflnformation No. 454-2013, if the Court were to accept his challenge, the Court would be
limited in re-sentencing to vacating the sentence at Count 2 of Information No. 454-2013. (See
Tr. Dec. 30, 2016 Hr' g at p. 10). Assuming arguendo, the imposition of separate sentences at
Counts 1 and 2 violates double jeopardy as Defendant contends, the Court believes that re-

                                                  5
sentencing on all of the Counts at Information No.'s 454-2013 and 531-2014 would be the only
appropriate remedy, as the Court expressly stated during sentencing that the assignment of
incarceration sentences to particular Counts was part of an overall sentencing scheme with a 30-
60 year aggregate, and vacating the sentence as to only certain of the Counts would be disruptive
of that entire scheme. See Commonwealth v. Sutton, 583 A.2d 500 (Pa. Super. 1990), appeal
denied, 536 A.2d 156 (Pa. 1991).

                                                     BY THE COURT:



Date:   l/-/Qr I     '7                               t.�
                                                     Katherine V. Oliver, Judge              ....___




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