J-S01033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DONALD CARNES

                            Appellant                  No. 985 WDA 2014


              Appeal from the Judgment of Sentence May 8, 2014
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0001634-2013


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED JANUARY 23, 2015

        Appellant, Donald Carnes, appeals from the judgment of sentence

entered in the Erie County Court of Common Pleas, following his bench trial

convictions for two (2) counts of indecent assault and one (1) count each of

rape of a child, corruption of minors, endangering welfare of children

(“EWOC”), aggravated indecent assault of a child, and indecent exposure.1

We affirm the convictions, vacate the judgment of sentence, remand for

resentencing, and deny counsel’s petition to withdraw.

        The relevant facts and procedural history of this appeal are as follows.

On multiple occasions in 2012, Appellant sexually molested his girlfriend’s

eight-year-old daughter.          Following a bench trial, the court convicted
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1
    18 Pa.C.S.A. §§ 3126, 3121(c), 6301, 4304, 3125(b), 3127, respectively.
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Appellant of two counts of indecent assault and one count each of rape of a

child, corruption of minors, EWOC, aggravated indecent assault of a child,

and indecent exposure. Prior to sentencing, the Commonwealth filed notice

of intent to seek mandatory minimum sentences for Appellant’s rape of a

child and aggravated indecent assault of a child convictions, pursuant to 42

Pa.C.S.A. § 9718 (stating person convicted of rape of child or aggravated

indecent assault of child shall be sentenced to at least ten (10) years’

imprisonment).

       On May 8, 2014, the court conducted Appellant’s sentencing hearing.

Prior to imposing the sentences, the court classified Appellant as a sexually

violent predator. Thereafter, the court sentenced Appellant to two hundred

sixteen (216) to four hundred thirty-two (432) months’ imprisonment for the

rape of a child conviction.        The court imposed a concurrent term of one

hundred twenty (120) to two hundred forty (240) months’ imprisonment for

the aggravated indecent assault of a child conviction.2        Regarding the

convictions for corruption of minors, EWOC, and one count of indecent

assault, the court sentenced Appellant to concurrent terms of twelve (12) to

twenty-four (24) months’ imprisonment. For Appellant’s indecent exposure

conviction, the court sentenced Appellant to a concurrent term of three (3)

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2
   The court imposed a mandatory minimum sentence per 42 Pa.C.S.A. §
9718 for aggravated indecent assault of a child. The court’s sentence for
rape of a child exceeded the Section 9718 mandatory minimum.



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to twenty-four (24) months’ imprisonment.        The final count of indecent

assault merged with the rape conviction for sentencing purposes.          Thus,

Appellant received an aggregate sentence of two hundred sixteen (216) to

four hundred thirty-two (432) months’ imprisonment.

      On Monday, May 19, 2014, Appellant timely filed a post-sentence

motion.   In it, Appellant challenged his sentence as follows: “[Appellant’s]

sentence is violative of the Pennsylvania Sentencing Guidelines and

[Appellant] should be re-sentenced.” (Post-Sentence Motion, filed 5/19/14,

at 1).    Appellant did not elaborate on how his sentence violated the

guidelines.   Also on May 19, 2014, the court denied Appellant’s post-

sentence motion.

      Appellant timely filed a notice of appeal on June 17, 2014. On June

18, 2014, the court ordered Appellant to file a concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(b). On July 8, 2014,

counsel timely filed a statement of intent to file a brief pursuant to Anders

v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      As a preliminary matter, appellate counsel seeks to withdraw her

representation pursuant to Anders and Commonwealth v. Santiago, 602

Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1)

petition the Court for leave to withdraw, certifying that after a thorough

review of the record, counsel has concluded the issues to be raised are

wholly frivolous; 2) file a brief referring to anything in the record that might


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arguably support the appeal; and 3) furnish a copy of the brief to the

appellant and advise him of his right to obtain new counsel or file a pro se

brief to raise any additional points the appellant deems worthy of review.

Santiago, supra at 173-79, 978 A.2d at 358-61.              Substantial compliance

with these requirements is sufficient.             Commonwealth v. Wrecks, 934

A.2d 1287, 1290 (Pa.Super. 2007). “After establishing that the antecedent

requirements have been met, this Court must then make an independent

evaluation of the record to determine whether the appeal is, in fact, wholly

frivolous.”    Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.

2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982

(Pa.Super. 1997)).

       In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

          Neither Anders nor McClendon[3] requires that counsel’s
          brief provide an argument of any sort, let alone the type of
          argument that counsel develops in a merits brief. To
          repeat, what the brief must provide under Anders are
          references to anything in the record that might arguably
          support the appeal.

                                       *       *   *

          Under Anders, the right to counsel is vindicated by
          counsel’s examination and assessment of the record and

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3
    Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).



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         counsel’s references to anything       in the   record that
         arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

         [I]n the Anders brief that accompanies court-appointed
         counsel’s petition to withdraw, counsel must: (1) provide a
         summary of the procedural history and facts, with citations
         to the record; (2) refer to anything in the record that
         counsel believes arguably supports the appeal; (3) set
         forth counsel’s conclusion that the appeal is frivolous; and
         (4) state counsel’s reasons for concluding that the appeal
         is frivolous. Counsel should articulate the relevant facts of
         record, controlling case law, and/or statutes on point that
         have led to the conclusion that the appeal is frivolous.

Id. at 178-79, 978 A.2d at 361.

      Instantly, appellate counsel filed a petition for leave to withdraw. The

petition states counsel performed a conscientious examination of the record

and concluded the appeal would be wholly frivolous. Counsel also supplied

Appellant with a copy of the withdrawal petition, the brief, and a letter

explaining Appellant’s right to proceed pro se or with new privately retained

counsel to raise any additional points Appellant deems worthy of this Court’s

attention.   In her Anders brief, counsel provides a summary of the

procedural history of the case.   Counsel refers to facts in the record that

might arguably support the issue raised on appeal and offers citations to

relevant law. The brief also provides counsel’s conclusion that the appeal is

wholly frivolous.    Thus, counsel has substantially complied with the

requirements of Anders and Santiago.

      As Appellant has filed neither a pro se brief nor a counseled brief with


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new privately retained counsel, we review this appeal on the basis of the

issue raised in the Anders brief:

         WHETHER APPELLANT’S SENTENCE IS MANIFESTLY
         EXCESSIVE,    CLEARLY     UNREASONABLE    AND
         INCONSISTENT  WITH    THE  OBJECTIVES  OF THE
         SENTENCING CODE?

(Anders Brief at 3).

     Appellant contends the sentencing court failed to consider mitigating

factors, including the support he receives from his family, his good

character, volunteer work, educational background, military service, and his

role as a father. Appellant concedes his sentences fall within the standard

range of the sentencing guidelines.         Nevertheless, Appellant “argues that

given his obvious remorse, his rehabilitative potential, and the fact that he

has no prior criminal history, the sentencing court should have...fashioned a

lesser sentence.”    (Appellant’s Brief at 8).     Appellant concludes the court

abused   its   discretion   by   imposing    a   manifestly   excessive   sentence.

Appellant’s challenge is to the discretionary aspects of his sentence.         See

Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim

that sentence is manifestly excessive challenges discretionary aspects of

sentencing).

     Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.     Commonwealth v. Sierra, 752 A.2d

910 (Pa.Super. 2000).        Prior to reaching the merits of a discretionary

sentencing issue:

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           [W]e conduct a four-part analysis to determine: (1)
           whether appellant has filed a timely notice of appeal, see
           Pa.R.A.P. 902 and 903; (2) whether the issue was properly
           preserved at sentencing or in a motion to reconsider and
           modify sentence, see Pa.R.Crim.P. 720; (3) whether
           appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
           (4) whether there is a substantial question that the
           sentence appealed from is not appropriate under the
           Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

Objections to the discretionary aspects of a sentence are generally waived if

they are not raised at the sentencing hearing or raised in a motion to modify

the sentence imposed at that hearing.4            Commonwealth v. Mann, 820

A.2d 788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599

(2003).

       When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating a substantial question as to the

appropriateness       of    the     sentence     under   the   Sentencing   Code.

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.

2119(f).     “The requirement that an appellant separately set forth the

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4
  Here, Appellant failed to raise his specific discretionary aspects claim at the
sentencing hearing or in the post-sentence motion. Due to counsel’s petition
to withdraw, however, we proceed with our analysis of Appellant’s issue.
See Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa.Super. 2009)
(explaining Anders requires review of issues otherwise waived on appeal).



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reasons relied upon for allowance of appeal ‘furthers the purpose evident in

the Sentencing Code as a whole of limiting any challenges to the trial court’s

evaluation of the multitude of factors impinging on the sentencing decision

to exceptional cases.’”   Commonwealth v. Phillips, 946 A.2d 103, 112

(Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d

240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385, 1387

(Pa.Super. 1989) (en banc) (emphasis in original)).

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.     Commonwealth v. Anderson, 830

A.2d 1013 (Pa.Super. 2003). A substantial question exists “only when the

appellant advances a colorable argument that the sentencing judge’s actions

were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the

sentencing process.” Sierra, supra at 912-13 (quoting Commonwealth v.

Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567

Pa. 755, 790 A.2d 1013 (2001)).

      A claim that a sentence is manifestly excessive might raise a

substantial question if the appellant’s Rule 2119(f) statement sufficiently

articulates the manner in which the sentence imposed violates a specific

provision of the Sentencing Code or the norms underlying the sentencing

process.   Mouzon, supra at 435, 812 A.2d at 627.        Nevertheless, “[a]n

allegation that a sentencing court ‘failed to consider’ or ‘did not adequately


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consider’ certain factors does not raise a substantial question that the

sentence was inappropriate.” Commonwealth v. Cruz-Centeno, 668 A.2d

536, 545 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195

(1996) (quoting Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.Super.

1995), appeal denied, 541 Pa. 625, 661 A.2d 873 (1995)).

      Instantly, Appellant’s assertion that the court improperly weighed the

mitigating factors does not raise a substantial question.           See Cruz-

Centeno, supra. Here, the court had the benefit of a PSI report. (See N.T.

Sentencing Hearing, 5/8/14, at 35, 38.)      Therefore, we can presume the

court considered the relevant information and mitigating factors.          See

Commonwealth v. Tirado, 870 A.2d 362, 366 n.6 (Pa.Super. 2005)

(stating where sentencing court had benefit of PSI, law presumes court was

aware of and weighed relevant information regarding defendant’s character

and mitigating factors). Accordingly, Appellant is not entitled to relief on his

challenge to the discretionary aspects of sentencing.

      Regarding the imposition of Section 9718 mandatory minimum

sentences, we are mindful of the United States Supreme Court’s decision in

Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314

(2013), in which the Court expressly held that any fact increasing the

mandatory minimum sentence for a crime is considered an element of the

crime to be submitted to the fact-finder and found beyond a reasonable

doubt.   Here, the court imposed a mandatory minimum sentence under


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Section 9718 (governing sentences for certain offenses committed against

minor victims) for Appellant’s aggravated indecent assault conviction. The

court also imposed a sentence that exceeded the mandatory minimum for

Appellant’s rape of a child conviction. Consequently, we elect sua sponte to

review the legality of Appellant’s sentences for rape of a child and

aggravated indecent assault of a child. See Commonwealth v. Edrington,

780 A.2d 721 (Pa.Super. 2001) (assuming proper jurisdiction, application of

mandatory minimum sentence involves legality of sentence, which this Court

can raise sua sponte).

       Section 9718(a)(3) sets forth mandatory minimum sentences of ten

(10) years’ imprisonment where a defendant is convicted of rape of a child

or aggravated indecent assault of a child.         42 Pa.C.S.A. § 9718(a)(3).

Section 9718(c) states that the statutory provisions shall not be an element

of the crime and applicability of the statute shall be determined at

sentencing by a preponderance of the evidence.        42 Pa.C.S.A. § 9718(c).

Recently, in Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en

banc), this Court addressed the constitutionality of a similar statute, 42

Pa.C.S.A. § 9712.1, in light of the United States Supreme Court’s decision in

Alleyne, supra.5 Relying on Alleyne, Newman held that Section 9712.1

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5
  This Court also made clear that Alleyne is subject to limited retroactivity;
in other words, Alleyne is applicable to all criminal cases still pending on
direct review. Id. at 90. Because Newman’s case was still pending on direct
(Footnote Continued Next Page)


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can no longer pass constitutional muster as it “permits the trial court, as

opposed to the jury, to increase a defendant’s minimum sentence based

upon a preponderance of the evidence that the defendant was dealing drugs

and possessed a firearm, or that a firearm was in close proximity to the

drugs.” Newman, supra at 98. Thus, this Court vacated Newman’s PWID

sentence    and   remanded         for   resentencing   without   imposition   of   the

mandatory minimum under Section 9712.1. See also Commonwealth v.

Valentine, 101 A.3d 801 (Pa.Super. 2014) (involving appeal of sentence

arising from jury trial; extending logic of Alleyne and Newman to Sections

42 Pa.C.S.A. §§ 9712, 9713 and holding those sections are likewise

unconstitutional insofar as they permit automatic increase of defendant’s

sentence based on preponderance of evidence standard).

      Subsequently, this Court directly addressed the constitutionality of

Section 9718 in Commonwealth v. Wolfe, ___ A.3d ___, 2014 PA Super

288 (filed December 24, 2014). In Wolfe, a jury convicted the defendant of

sex crimes committed against a minor victim, including two counts of

involuntary deviate sexual intercourse (“IDSI”).6           The court imposed ten-


                       _______________________
(Footnote Continued)

appeal, the holding in Alleyne applied to Newman’s case, as it also does
here in this direct appeal.
6
  The relevant portion of the IDSI statute provides: “A person commits a
felony of the first degree when the person engages in deviate sexual
intercourse with a complainant…who is less than 16 years of age and the
(Footnote Continued Next Page)


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year mandatory minimum sentences for each IDSI conviction, pursuant to

Section 9718(a)(1).        On appeal, this Court emphasized that Section 9718

“contains the same format” as the unconstitutional statutes at issue in

Newman and Valentine. Id. at *5. Consequently, this Court held Section

9718 is also facially unconstitutional. Moreover, this Court noted:

          We recognize that this specific case is unique insofar that
          the additional fact triggering the mandatory sentence is
          also contained as an element within the subsection of the
          IDSI statute under which [the defendant] was convicted.
          Therefore, in order to convict [the defendant] of IDSI, the
          Commonwealth was already required to prove beyond a
          reasonable doubt that the victim was less than 16 years
          old.

          However, we are not concerned with [the defendant’s]
          conviction in this appeal, only the imposition of the
          mandatory minimum sentence.

                                        *        *   *

          [I]n this case, although the jury was required to find that
          the victim was less than 16 years of age in order to convict
          [the defendant], we cannot ignore the binding precedent
          from an en banc decision of this Court. Newman stands
          for the proposition that mandatory minimum sentence
          statutes in Pennsylvania of this format are void in their
          entirety. As Section 9718 is indistinguishable from the
          statutes struck down in Newman and Valentine, we are
          constrained to conclude that Section 9718 is also facially
          void. As a result, we conclude the trial court erred in
          imposing the ten-year mandatory minimum.

Id. at 5-6 (internal citations omitted).
                       _______________________
(Footnote Continued)

person is four or more years older than the complainant and the complainant
and person are not married to each other.” 18 Pa.C.S.A. § 3123(a)(7).



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      Instantly, the court conducted a bench trial and convicted Appellant of

multiple sex offenses. At the sentencing hearing, the court applied Section

9718 to Appellant’s rape of a child and aggravated indecent assault of a child

convictions.   (See Guideline Sentence forms, filed 5/9/14, at 1-3.)      Given

this Court’s decisions in Newman, Valentine, and Wolfe, however, we

must vacate and remand for resentencing.              Accordingly, we affirm

Appellant’s convictions, but we vacate the judgment of sentence, remand for

resentencing without imposition of mandatory minimum sentences, and

deny counsel’s petition to withdraw.

      Judgment of sentence vacated; case remanded for resentencing;

counsel’s petition to withdraw is denied. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2015




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