J-S33025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

JOSEPH MICHAEL MCQUADE, JR.

                         Appellant                 No. 1413 WDA 2015


                   Appeal from the Order August 20, 2015
              In the Court of Common Pleas of Jefferson County
             Criminal Division at No(s): CP-33-CR-0000235-2013


BEFORE: GANTMAN, P.J., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                              FILED MAY 24, 2016

      Appellant, Joseph Michael McQuade, Jr., appeals from the order

entered on August 20, 2015, which dismissed his first petition filed pursuant

to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.     We

vacate the PCRA court’s order and remand.

      On June 25, 2013, the Commonwealth filed its information against

Appellant.   The information declared that, between January 1, 2013 and

April 23, 2013, Appellant committed multiple sexual crimes against a 13-

year-old victim.     Commonwealth’s Information, 6/23/13, at 1.          The

Commonwealth charged Appellant with 28 separate counts, including four

counts of aggravated indecent assault under 18 Pa.C.S.A. § 3125(a)(1). In

relevant part, this statute declares:

        (a) Offenses defined.-- . . . a person who engages in
        penetration, however slight, of the genitals or anus of a

*Former Justice specially assigned to the Superior Court.
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        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:

            (1) the person does so without the complainant’s
            consent[.]

18 Pa.C.S.A. § 3125(a)(1).

      Following trial, the jury found Appellant guilty of 24 of the 28 charges,

including all four counts of aggravated indecent assault under 18 Pa.C.S.A.

§ 3125(a)(1).

      On November 25, 2013, the trial court sentenced Appellant to serve an

aggregate term of 48 to 148 years in prison.           Appellant’s aggregate

sentencing term included four five-year mandatory minimum sentencing

terms for his 18 Pa.C.S.A. § 3125(a)(1) convictions.          The mandatory

minimum sentences were imposed pursuant 42 Pa.C.S.A. § 9718, which

declared, in relevant part:

        (a) Mandatory sentence.--

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

                                     ...

            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

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        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.

        (d) Authority of court in sentencing.--There shall be no
        authority in any court to impose on an offender to which
        this section is applicable any lesser sentence than provided
        for in subsection (a) or to place the offender on probation or
        to suspend sentence. Nothing in this section shall prevent
        the sentencing court from imposing a sentence greater than
        that provided in this section. Sentencing guidelines
        promulgated      by   the    Pennsylvania Commission       on
        Sentencing shall not supersede the mandatory sentences
        provided in this section.

        (e) Appeal by Commonwealth.--If a sentencing court
        refuses to apply this section where applicable, the
        Commonwealth shall have the right to appellate review of
        the action of the sentencing court. The appellate court shall
        vacate the sentence and remand the case to the sentencing
        court for imposition of a sentence in accordance with this
        section if it finds that the sentence was imposed in violation
        of this section.

42 Pa.C.S.A. § 9718 (effective January 1, 2007 to August 17, 2014).

     Appellant filed a notice of appeal from his judgment of sentence and,

on October 20, 2014, this Court affirmed Appellant’s judgment of sentence.

Commonwealth       v.   McQuade,     108    A.3d   118   (Pa.   Super.    2014)

(unpublished memorandum) at 1-8.        Appellant did not file a petition for

allowance of appeal with the Pennsylvania Supreme Court.

     On February 17, 2015, Appellant filed a timely, pro se petition under

the PCRA. The PCRA court appointed counsel and counsel filed an amended


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petition on Appellant’s behalf. Within the amended petition, Appellant raised

the following two claims:

        [1.] The [trial] court entered illegal sentences by sentencing
        me on November 25, 2013, to the mandatory five [] year
        minimum sentences on each of the four counts of []
        aggravated        indecent     assault[]     (18     Pa.C.S.A.
        [§] 3125(a)(1)), pursuant to the mandatory minimum
        sentencing provisions of [42 Pa.C.S.A. § 9718(a)(1)]. Said
        sentences are illegal as said mandatory minimum
        sentenc[ing] statute was then unconstitutional and its
        provisions unseverable. [Alleyne v. United States, ___
        U.S.    ___,     133    S.Ct.   2151     (2013);   see    also
        Commonwealth v. Miller, 102 A.3d 988 (Pa. Super.
        2014); Commonwealth v. Mundy, 78 A.3d 661 (Pa.
        Super. 2013); Commonwealth v. Watley, 81 A.3d 108
        (Pa. Super. 2013); Commonwealth v. Newman, 99 A.3d
        86 (Pa. Super. 2014)].

                                       ...

        [2.] My trial counsel was ineffective for not objecting at the
        time I was sentenced by the [trial] court on November 25,
        2013, to the mandatory five [] year minimum sentences on
        each of the four counts of [] aggravated indecent assault[]
        [(18 Pa.C.S.A. § 3125(a)(1))], pursuant to the mandatory
        minimum      sentencing    provisions    of   [42    Pa.C.S.A.
        § 9718(a)(1)]. Said sentences are illegal as said mandatory
        minimum sentenc[ing] statute was then unconstitutional. . .
        .

Appellant’s   Amended       PCRA   Petition,   5/4/15,   at   1   (some   internal

capitalization omitted).

      The PCRA court scheduled a hearing on Appellant’s PCRA petition and,

on August 20, 2015, the PCRA court denied Appellant post-conviction




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collateral relief.1 Appellant filed a timely notice of appeal and Appellant now

raises two claims to this Court:

          [1.] Did the trial court enter illegal sentences, entitling
          [Appellant] to a remand for re-sentencing, by sentencing
          [Appellant] . . . to the mandatory five [] year minimum
          sentences on each of the four [] counts of [] aggravated
          indecent assault[] [(18 Pa.C.S.A. § 3125(a)(1))], pursuant
          to the mandatory minimum sentenc[ing] provisions of [42
          Pa.C.S.A. § 9718(a)(1)], where said mandatory minimum
          sentenc[ing] statute has been found to be unconstitutional
          and its provisions un-severable?

          [2.] Was [Appellant’s] trial attorney ineffective, and
          [Appellant] thereby prejudiced, such that [Appellant] is
          entitled to a remand for re-sentencing, for not objecting at
          the time [Appellant] was sentenced by the trial court . . . to
          the mandatory five [] year minimum sentences on each of
          the four [] counts of [] aggravated indecent assault[] [(18
          Pa.C.S.A. § 3125(a)(1))], pursuant to the mandatory
          minimum sentenc[ing] provisions of [42 Pa.C.S.A.
          § 9718(a)(1)],    where      said    mandatory     minimum
          sentenc[ing] statute is unconstitutional?

Appellant’s Brief at 4 (some internal capitalization omitted).2

        Appellant’s first claim entitles him to relief. We therefore vacate the

order dismissing Appellant’s petition, vacate Appellant’s judgment of

sentence, and remand this matter for re-sentencing.3



____________________________________________


1
    The certified record does not contain a PCRA hearing transcript.
2
    For ease of discussion, we have re-numbered Appellant’s claims on appeal.
3
  Given our disposition, we will not discuss Appellant’s second numbered
claim on appeal.



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     This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported by evidence of record and is free of legal error. Commonwealth

v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will

not be disturbed unless there is no support for the findings in the certified

record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

We apply a de novo standard of review and a plenary scope of review to

challenges involving questions of law. Commonwealth v. Rykard, 55 A.3d

117, 1183-1184 (Pa. Super. 2012), appeal denied, 64 A.3d 631 (Pa. 2013).

     In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States

Supreme Court held: “[o]ther than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” Apprendi, 530 U.S. at 489. Further, in Alleyne, the United States

Supreme Court expanded “Apprendi’s basic jury-determination rule to

mandatory minimum sentences.”      Alleyne, ___ U.S. at ___, 133 S.Ct. at

2167 (Breyer, J., concurring).   Specifically, the Alleyne Court held that,

where an “aggravating fact” increases a mandatory minimum sentence, “the

fact is an element of a distinct and aggravated crime.     [The fact] must,

therefore, be submitted to the jury and found beyond a reasonable doubt.”

Alleyne, 133 S.Ct. at 2162-2163.

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

Court held that a version of 42 Pa.C.S.A. § 9718 – which is the identical

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version of Section 9718 that is implicated in the current appeal – was

unconstitutional under Alleyne. Id. at 805.

      In the case at bar, Appellant was found guilty of four counts of

aggravated indecent assault under 18 Pa.C.S.A. § 3125(a)(1).              Appellant

was then sentenced to four five-year mandatory minimum sentencing terms

for his Section 3125(a)(1) convictions, under the same version of 42

Pa.C.S.A. § 9718 that this Court held was facially unconstitutional in Wolfe.

Moreover,   the   mandatory   minimum      sentencing     statute   under    which

Appellant was sentenced contained an element that was not included in

Section 3125(a)(1) and that was, therefore, not submitted to the jury or

proven beyond a reasonable doubt at trial – this being the victim’s age. See

42 Pa.C.S.A. § 9718(a)(1) (“[a] person convicted of the following offenses

when the victim is under 16 years of age shall be sentenced to a mandatory

term of imprisonment as follows: . . . 18 Pa.C.S. § 3125(a)(1) through (6)

(relating to aggravated indecent assault)--not less than five years”).

      Hence, Appellant’s sentence is illegal under the plain terms of Alleyne

(as he was subjected to a mandatory minimum sentence based upon a fact

that was not submitted to the jury or proven beyond a reasonable doubt at

trial) and under the plain terms of Wolfe (as he was sentenced under a

mandatory     minimum     statute   that   this   Court     held    was     facially




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unconstitutional).4 Accordingly, we vacate the order dismissing Appellant’s

petition, vacate Appellant’s judgment of sentence, and remand this matter

for re-sentencing.

       Order vacated.      Judgment of sentence vacated.   Case remanded for

further proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2016




____________________________________________


4
   This Court has held that Alleyne does not apply retroactively to cases on
post-conviction review. Commonwealth v. Riggle, 119 A.3d 1058 (Pa.
Super. 2015). However, Alleyne was decided on June 17, 2013 and
Appellant was not sentenced until November 25, 2013. Therefore, Appellant
is entitled to the application of Alleyne and the conclusion that, at the time
he was sentenced, Alleyne had rendered the mandatory minimum
sentencing statute at 42 Pa.C.S.A. § 9718 facially unconstitutional and
Appellant’s sentence illegal. Commonwealth v. Ruiz, 131 A.3d 54, 60 (Pa.
Super. 2015) (holding that a PCRA petitioner was entitled to the application
of Alleyne and was entitled to relief because the petitioner “raised his
[illegal sentencing] claim in a timely PCRA petition [and the petitioner’s]
judgment of sentence was ‘still pending on direct review’ when Alleyne was
decided”).



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