J-S58007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

WILLIAM SHANNON TRIVETT,

                             Appellant                No. 485 MDA 2015


              Appeal from the Judgment of Sentence May 1, 2014
               in the Court of Common Pleas of Lancaster County
               Criminal Division at No.: CP-36-CR-0001281-2013

BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 19, 2015

        Appellant, William Shannon Trivett, appeals nunc pro tunc from the

judgment of sentence entered on May 1, 2014.               On appeal, Appellant

challenges the validity of his guilty plea and the legality of his sentence. For

the reasons discussed below, we affirm as to the guilty plea. However, we

are constrained to vacate the sentence, and remand for resentencing.

        We take the underlying facts and procedural history in this matter

from the trial court’s April 28, 2015 opinion and our independent review of

the certified record.

        On February 1, 2013, the police arrested Appellant and charged him

with involuntary deviate sexual intercourse (IDSI) with a child, aggravated

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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indecent assault of a child, two counts of indecent assault, four counts of

unlawful contact with a minor, and corruption of minors.1 The charges arose

from Appellant’s inappropriate sexual contact with his girlfriend’s minor child

(who was born in August 2000) between 2008 and 2010.

        A jury trial on the aforementioned charges began on April 30, 2014,

with jury selection and empanelment. On May 1, 2014, prior to the start of

testimony, Appellant elected to enter an open guilty plea to the charges of

IDSI with a child, aggravated indecent assault, two counts of indecent

assault, unlawful contact with a minor and corruption of minors. (See N.T.

Plea Hearing, 5/01/14, at 2-3).           In return, the Commonwealth withdrew

three counts of unlawful contact with a minor.         During the plea colloquy,

Appellant admitted that the minor was under age thirteen at the time of the

incidents. (See id. at 11-12). Appellant waived his right to a presentence

investigation and a presentence Sexual Offenders Assessment Board

determination. (See id. at 4, 13). The trial court immediately sentenced

Appellant to an aggregate mandatory minimum sentence2 of not less than

ten nor more than twenty years of incarceration to be followed by a five-

year term of probation.


____________________________________________


1
  18 Pa.C.S.A. §§ 3123(b), 3125(a)(7), 3126(a)(7), 6318(A)(1), and
6301(a)(1), respectively.
2
    See 42 Pa.C.S.A. § 9718.



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        On May 9, 2014, Appellant filed a motion to withdraw his guilty plea.

The trial court denied the motion on May 12, 2014.        On June 12, 2014,

Appellant filed a notice of appeal. On June 13, 2014, the trial court directed

Appellant to file a concise statement of errors complained of on appeal. See

Pa.R.A.P. 1925(b).     Appellant filed a Rule 1925(b) statement on July 3,

2014.     On August 11, 2014, this Court quashed Appellant’s appeal as

untimely.

        On October 6, 2014, without permission of court, Appellant filed a

notice of appeal nunc pro tunc.     On October 10, 2014, Appellant filed a

motion for leave to appeal nunc pro tunc. The trial court granted the motion

on October 14, 2014.         On December 23, 2014, this Court quashed

Appellant’s appeal.

        Prior to this Court’s quashal of Appellant’s October 2014 appeal, on

November 21, 2014, Appellant, without leave of court, filed another notice of

appeal nunc pro tunc. The trial court did not take any action. On February

10, 2015, this Court quashed the appeal as untimely.

        On February 13, 2015, Appellant filed a counseled petition under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, seeking, yet

again, restoration of his direct appeal rights. The PCRA court granted the

PCRA petition and restored Appellant’s direct appeal rights. The PCRA court

also granted counsel’s request to withdraw.    On March 6, 2015, the PCRA

court appointed new counsel.


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        On March 13, 2015, Appellant filed a notice of appeal nunc pro tunc.3

On March 30, 2015, Appellant filed a concise statement of errors complained

of on appeal.        See Pa.R.A.P. 1925(b).      In his Rule 1925(b) statement,

Appellant challenged the legality of his sentence. (See Concise Statement of

[Errors] Raised on Appeal, 3/30/15, at 1). On April 28, 2015, the trial court

issued an opinion. See Pa.R.A.P. 1925(a).

        On appeal, Appellant raises the following questions for our review:4

        A. Whether the [trial c]ourt erred in denying Appellant’s motion
           to withdraw his guilty plea?

        B. Whether it was unlawful to subject Appellant to mandatory
           minimum sentences pursuant to 42 [Pa. C.S.A. §] 9718 in the
           wake of Alleyne v. United States [, 133 S.Ct. 2151 (2013),]
           and Commonwealth v. Newman [, 99 A.3d 86 (Pa. Super.
           2014), appeal denied, 2015 WL 4960608 (Pa. August 7,
           2015),] and similar precedents?

(Appellant’s Brief, at 4).

        In the first issue, Appellant claims that the trial court erred in denying

his motion to withdraw his guilty plea. (See Appellant’s Brief, at 9). For the

reasons discussed below, we find Appellant has waived this issue.

        “[A]   defendant who attempts to withdraw a guilty plea after sentencing

must demonstrate prejudice on the order of manifest injustice before

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3
  This Court received the notice of appeal on March 16, 2015. It is date-
stamped “March 13, 2015” by the Clerk of Courts of Lancaster County. (See
Notice of Appeal, 3/13/15, at 1).
4
    For ease of disposition, we have reordered the issues in Appellant’s appeal.



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withdrawal is justified. A showing of manifest injustice may be established if

the plea was entered into involuntarily, unknowingly, or unintelligently.”

Commonwealth v. Yeomans, 24 A.3d 1044, 1046 (Pa. Super. 2011)

(citation omitted). “The law does not require that appellant be pleased with

the outcome of his decision to enter a plea of guilty[.]” Commonwealth v.

Yager, 685 A.2d 1000, 1004 (Pa. Super. 1996) (en banc), appeal denied,

701 A.2d 577 (Pa. 1997) (citation omitted).

      Further, when a defendant has entered a guilty plea, we presume that

he was aware of what he was doing; it is his burden to prove that the plea

was involuntary.   See Commonwealth v. McCauley, 797 A.2d 920, 922

(Pa. Super. 2001).   Accordingly, where the record clearly shows the court

conducted a guilty plea colloquy and that the defendant understood the

nature of the charges against him, the plea is voluntary. See id.

      The entry of a guilty plea results in a waiver of all defects and

defenses except for those that challenge the jurisdiction of the court, the

validity of the guilty plea, or the legality of the sentence.             See

Commonwealth v. Syno, 791 A.2d 363, 365 (Pa. Super. 2002). Because

Appellant filed his challenge to the validity of his guilty plea following the

imposition of sentence, he must make a showing of manifest injustice. See

Commonwealth v. Gunter, 771 A.2d 767, 771 (Pa. 2001).

      Here, Appellant did not raise this claim in his Rule 1925(b) statement.

(See Concise Statement of Matters Raised on Appeal, 3/30/15, at 1).        As


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amended in 2007, Pennsylvania Rule of Appellate Procedure 1925 provides

that issues that are not included in the Rule 1925(b) statement or raised in

accordance      with    Rule     1925(b)(4)      are   waived.     See    Pa.R.A.P.

1925(b)(4)(vii); see also Commonwealth v. Lord, 719 A.2d 306, 308 (Pa.

1998), superseded by rule on other grounds as stated in Commonwealth v.

Burton, 973 A.2d 428, 431 (Pa. Super. 2009).              Accordingly, we find that

because Appellant did not raise this issue in his Rule 1925(b) statement, he

waived this claim.5

       In the second issue, Appellant challenges the legality of his sentence.

(See Appellant’s Brief, at 8-9).           Specifically, Appellant argues that the

application of the mandatory minimum sentencing provisions set forth at 42

Pa.C.S.A. § 9718 violates the United States Supreme Court’s decision in

Alleyne.      (See id. at 8).         For the reasons set forth below, we are

constrained to agree and remand for a new sentencing hearing.

       “Issues relating to the legality of a sentence are questions of law, as

are claims raising a court’s interpretation of a statute.         Our standard of

review over such questions is de novo and our scope of review is plenary.”
____________________________________________


5
  Moreover, even if Appellant had raised the issue in his Rule 1925(b)
statement, we would still find that he had waived the claim, because his
argument on this issue consists of two sentences. (See Appellant’s Brief, at
9). It is Appellant’s responsibility to develop arguments in his brief; where
he has not done so we will find the claim waived. See Commonwealth v.
Tielsch, 934 A.2d 81, 93-94 (Pa. Super. 2007), appeal denied, 952 A.2d
677 (Pa. 2008), cert. denied, 555 U.S. 1072 (2008) (court will not consider
undeveloped arguments).



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Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa. Super. 2012),

appeal denied, 53 A.3d 756 (Pa. 2012) (citation omitted).

     The statute at issue in the present matter is 42 Pa.C.S.A. § 9718,

which provides in pertinent part:

     (a) Mandatory sentence.—

           (1) A person convicted of the following offenses
           when the victim is less than 16 years of age shall be
           sentenced to a mandatory term of imprisonment as
           follows:

                                    *    *    *

                 18    Pa.C.S.   §   3123    (relating  to
                 involuntary deviate sexual intercourse)—
                 not less than ten years.

                 18 Pa.C.S. § 3125(a)(1) through (6)
                 (relating  to     aggravated     indecent
                 assault)—not less than five years.

                                    *    *    *

     (c) Proof at sentencing.—The provisions of this section shall
     not be an element of the crime, and notice of the provisions of
     this section to the defendant shall not be required prior to
     conviction, but reasonable notice of the Commonwealth’s
     intention to proceed under this section shall be provided after
     conviction and before sentencing.       The applicability of this
     section shall be determined at sentencing. The court shall
     consider any evidence presented at trial and shall afford the
     Commonwealth and the defendant an opportunity to present any
     necessary additional evidence and shall determine, by a
     preponderance of the evidence, if this section is applicable.

42 Pa.C.S.A. § 9718(a)(1), (c).

     In Alleyne, the United States Supreme Court held that “facts that

increase mandatory minimum sentences must be submitted to the jury” and

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must be found beyond a reasonable doubt. Alleyne, supra at 2163. This

Court explained the rationale of Alleyne as follows:

     Alleyne is an extension of the Supreme Court’s line of cases
     beginning with Apprendi v. New Jersey, 530 U.S. 466, 120
     S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Alleyne, the Court
     overruled Harris v. United States, 536 U.S. 545, 122 S.Ct.
     2406, 153 L.Ed.2d 524 (2002), in which the Court had reached
     the opposite conclusion, explaining that there is no constitutional
     distinction between judicial fact finding which raises the
     minimum sentence and that which raises the maximum
     sentence.

                 It is impossible to dissociate the floor of a
           sentencing range from the penalty affixed to the
           crime. Indeed, criminal statutes have long specified
           both the floor and ceiling of sentence ranges, which
           is evidence that both define the legally prescribed
           penalty. This historical practice allowed those who
           violated the law to know, ex ante, the contours of
           the penalty that the legislature affixed to the crime—
           and comports with the obvious truth that the floor of
           a mandatory range is as relevant to wrongdoers as
           the ceiling. A fact that increases a sentencing floor,
           thus, forms an essential ingredient of the offense.

                 Moreover, it is impossible to dispute that facts
           increasing the legally prescribed floor aggravate the
           punishment. Elevating the low-end of a sentencing
           range heightens the loss of liberty associated with
           the crime: the defendant’s expected punishment has
           increased as a result of the narrowed range and the
           prosecution is empowered, by invoking the
           mandatory minimum, to require the judge to impose
           a higher punishment than he might wish. Why else
           would Congress link an increased mandatory
           minimum to a particular aggravating fact other than
           to heighten the consequences for that behavior?
           This reality demonstrates that the core crime and the
           fact triggering the mandatory minimum sentence
           together constitute a new, aggravated crime, each
           element of which must be submitted to the jury.


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      Alleyne, supra at 2160–61 (internal quotation marks and
      citations omitted).

Commonwealth v. Miller, 102 A.3d 988, 994-95 (Pa. Super. 2014).

      In light of Alleyne, this Court has declared unconstitutional those of

Pennsylvania’s mandatory minimum sentencing statutes that permit a trial

court, rather than a jury, to make the critical factual findings for sentencing.

See Commonwealth v. Cardell, 105 A.3d 748, 751 (Pa. Super. 2014),

appeal denied, 121 A.3d 494 (Pa. 2015) (holding mandatory minimum

sentences pursuant to 18 Pa.C.S.A. § 7508, which concern weight of

narcotics possessed by drug dealer, unconstitutional); Commonwealth v.

Valentine, 101 A.3d 801, 810-12 (Pa. Super. 2014) (holding 42 Pa.C.S.A. §

9712, which concerned mandatory minimum sentencing for certain crimes

committed with firearm unconstitutional); Newman, supra at 90 (holding

42 Pa.C.S.A. § 9712.1, which imposes mandatory minimum sentencing for

possessing firearm in close proximity to narcotics unconstitutional).

      In Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014),

appeal granted, 2015 WL 4755651 (Pa. August 12, 2015), this Court

considered the constitutionality of Section 9718, the statute at issue in the

case sub judice.   In light of Alleyne, Newman, and Valentine, we held

that Section 9718 was facially unconstitutional because the elements of the

“proof at sentencing” provision required a trial judge, not a jury, make the

factual findings by a preponderance of the evidence, and not beyond a

reasonable doubt. Id. at 802, 805.

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      Because subsection (a)(1), which the trial court applied in the instant

matter, uses the same “[p]roof at sentencing” provision as in Wolfe, we are

constrained to conclude that its application here was unconstitutional and

the sentence illegal.

      We are sympathetic to the Commonwealth’s argument that, because

of the guilty plea, no Alleyne issue exists. (See Commonwealth’s Brief, at

8-9). However, it is evident from the record that the trial court sentenced

Appellant pursuant to 42 Pa.C.S.A. § 9718.           (See N.T. Plea Hearing,

5/01/14, at 2, 24-25).     In Wolfe, this Court found Section 9718 to be

facially unconstitutional. See Wolfe, supra at 805. That decision is binding

upon this Court.   See Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa.

Super. 2006), appeal denied, 946 A.2d 686 (Pa. 2008), cert. denied, 555

U.S. 881 (2008) (“It is beyond the power of a Superior Court panel to

overrule a prior decision of the Superior Court, except in circumstances

where intervening authority by our Supreme Court calls into question a

previous decision of this Court.”) (citations omitted).

      Thus, because the trial court sentenced Appellant pursuant to an

unconstitutional statute, he must be resentenced.         Therefore, in sum, we

find Appellant waived his claim that the trial court erred in denying his

motion to withdraw his guilty plea but we vacate the judgment of sentence,

and we remand this matter for resentencing without consideration of the

mandatory minimum sentencing provision at issue in this case.


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      Judgment of sentence vacated.    Case remanded.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/2015




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