J-S32029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                              Appellee

                        v.

JOEL ADCOCK A/K/A JOEL MICHAEL
ADCOCK,

                              Appellant                No. 1894 WDA 2014


          Appeal from the Judgment of Sentence of October 28, 2014
              In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0001197-2014 and
                           CP-02-CR-0005846-2013


BEFORE: SHOGAN, OLSON AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                                 FILED JULY 24, 2015

        Appellant, Joel Adcock, a/k/a Joel Michael Adcock, appeals from the

judgment of sentence entered on October 28, 2014, as made final by the

denial of Appellant’s post-sentence motion on November 6, 2014.             We

affirm.

        On August 4, 2014, Appellant pleaded guilty to one count of

aggravated assault, two counts of simple assault, and one count of

terroristic threats.1        During the guilty plea colloquy, the Commonwealth

recited the factual basis for Appellant’s plea:

          Had the Commonwealth proceeded to trial on [docket
          number CP-02-CR-0005846-2013,] the Commonwealth
____________________________________________


1
    18 Pa.C.S.A. §§ 2702(a)(1), 2701(a)(1), and 2706(a)(1), respectively.
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       would have called Detective Rich Usner, [] Detective Scott
       Holzwarth, [] both from the Allegheny County Police
       Department, as well as [L.S.] and [J.A.], who would have
       testified that on March 28[,] 2013, the victim, [L.S.], who
       was 62 at the time, was in her [own] apartment. It should
       be noted that [Appellant] and his girlfriend lived above the
       victim, Your Honor.

       [L.S.] had her friend, [J.A.], visiting her from California.
       While [J.A.] was staying with [L.S.], [L.S.] told the police
       that on the morning of March 27, 2013, she complained to
       her landlord that the neighbors were making too much noise
       at odd hours. [L.S.] also told [Appellant’s] girlfriend, and
       the girlfriend had told [L.S.] that she would talk to
       [Appellant] and everything would be okay.

       On the evening of March 27, 2013, [L.S.] would have
       testified[, she] heard a loud knock on her door, opened the
       door and that [Appellant] came in and grabbed her by the
       throat, choked her and pulled her hair out, telling her that
       he was angry and was going to kill her for telling on him.

       [J.A.] would have testified that she tried to help her friend
       and was struck several times and fell to the floor by
       [Appellant]. [J.A.] was able to call 911 for help, and the
       police did arrive, but [Appellant] was gone at that time.
       [L.S.] was treated at UPMC Mercy Hospital, which she did
       suffer significant injuries, which we would have provided the
       hospital records from Mercy Hospital.

                                   ...

       As to [docket number CP-02-CR-0001197-2014,] we would
       again have called Detective Holzwarth and Detective Usner
       from the Allegheny Police Department as well as Officer
       Price and Officer Kidder from the McKees Rocks [P]olice
       [D]epartment and [V.L.], who would have testified that on
       January 10[, 2014, Appellant] was staying with [V.L.] while
       he was on electronic monitoring awaiting his cases on the
       [CP-02-CR-0005846-2013] case. They had been longtime
       friends.

       While [Appellant] was staying with [V.L.], he was angered
       by one of her three children that had shot him with a toy

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        dart. He became angry and screamed at her child. When
        [V.L.] confronted [Appellant] about yelling at her child, she
        told police he became enraged, yelled[ “d]on’t talk to me
        like that,” picked her up, choked her and threw her down on
        a wooden floor in the dining room.

        [V.L.] then was able to call 911, and [Appellant] left during
        this time. [V.L.] would have testified that she did get
        medical treatment and did suffer minor injuries.

N.T. Guilty Plea, 8/4/14, at 5-7 and 8-9.

      Following   Appellant’s   guilty    plea,   the   Commonwealth    provided

Appellant with notice that, in accordance with 42 Pa.C.S.A. § 9717, it

intended to seek the mandatory minimum sentence of two years’ total

confinement for Appellant’s aggravated assault conviction, as the victim of

the crime was more than 60 years of age (and Appellant was under 60 years

of age) at the time of the offense. Commonwealth’s Notice, 8/4/14, at 1;

see also 42 Pa.C.S.A. § 9717(a). In relevant part, Section 9717 declares:

        § 9717.     Sentences      for     offenses     against   elderly
        persons

        (a) Mandatory sentence.--A person under 60 years of
        age convicted of the following offenses when the victim is
        over 60 years of age and not a police officer shall be
        sentenced to a mandatory term of imprisonment as follows:

            18 Pa.C.S.A. § 2702(a)(1) and (4) (relating                to
            aggravated assault)--not less than two years.

                                         ...

        (b) Eligibility for parole.--Parole shall not be granted
        until the minimum term of imprisonment has been served.

42 Pa.C.S.A. § 9717.




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        Appellant proceeded to sentencing on October 28, 2014 and, during

the sentencing hearing, the Commonwealth requested that the trial court

impose the two-year mandatory minimum sentence, pursuant to Section

9717.     See N.T. Sentencing, 10/28/14, at 17-18.            However, during the

sentencing hearing, the trial court provided absolutely no indication that it

felt itself bound by the Commonwealth’s mandatory minimum request or

even that it took the statutory mandatory minimum sentencing term into

account as a factor in sentencing Appellant. Rather, during the hearing, the

trial court orally noted that the standard sentencing range for Appellant’s

aggravated assault conviction was 48 to 66 months in prison.                   N.T.

Sentencing, 10/28/14, at 3. The trial court then considered the sentencing

factors on the record and, after doing so, the trial court imposed upon

Appellant a standard-range sentence of five to ten years in prison for the

aggravated assault conviction.2          Specifically, the trial court stated on the

record at sentencing:

          The court notes the presentence report has detailed
          [Appellant’s] criminal history. He has a prior record score of
          [two] out of four misdemeanor convictions. There are
          summaries in his criminal activity – criminal history in the
          presentence report.
____________________________________________


2
  For Appellant’s two simple assault convictions and one terroristic threats
conviction, the trial court sentenced Appellant to serve three consecutive
terms of six to 12 months in prison, with the terms running consecutively to
the aggravated assault sentence. Thus, the trial court sentenced Appellant
to serve an aggregate term of six-and-a-half to 13 years in prison for the
four convictions.



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       [The assistant district attorney] referenced [an earlier]
       assault [Appellant committed] in 2007. It was eerily similar
       to what occurred on this date where [Appellant] attacked
       his girlfriend, grabbed her by the hair and threw her to the
       floor and kicked her in the face and the back after the
       victim had talked to her mother about [Appellant’s]
       treatment of her. But, in any event, not exactly on all four
       squares but, again, possessing similarities to the attack that
       occurred here.

                                     ...

       [T]he court undertakes, consistent with Title 42, a review
       and consideration of [Appellant’s] background, which is not
       necessarily a pleasant one and is detailed in the
       presentence report, referred to in his letter to the court;
       also the court made note of it in terms of him being abused
       as a child and subject to an environment filled with alcohol
       and physical assault.

       This court also notes his mental health diagnosis and some
       necessity for treatment within the health system, whether
       that’s in a state penitentiary or at some point in time when
       he’s released. The court again is taking those factors into
       consideration, his statement of remorse and accountability,
       incorporated by [Appellant’s attorney] today, expressed by
       him in his letter.

       The court is taking into account the statements made by
       [the assistant district attorney] on behalf of the two victims
       who are not here. The court notes that the second assault
       – that is, the assault on [V.L.] – was one that occurred after
       he was arrested and charged with the assaults on [L.S.] and
       [J.A.]. In fact, taking him into the home with [V.L.], he
       betrayed her confidence and trust in him.

       The court notes the long-standing significant injuries to
       [L.S.], detailed in the presentence report, repeated by her
       today; and, of course, the psychological and emotional
       impact of an unprovoked attack in which she could not
       defend herself by virtue of her lack of physical prowess as
       well as the surprise of that attack, similar in nature to [J.A.]
       and [V.L.].

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        The court is struck by the similarity of the 2007 attack in
        which [Appellant] was sentenced and had ample
        opportunity, at a minimum, to reflect upon that and change
        his behavior on his own volition or resources of the court
        system or the community. He never did that. In fact, [it
        has] repeated itself and almost resulted in the death of
        [L.S.] in this case in March of 2013.

        The court again is taking into account the rehabilitative
        needs of [Appellant], his history. The court also notes a
        statutory obligation as to the impact of the crime on the
        victims, the danger he may present to the community and
        protection of the community. The court must place great
        weight on the protection [of] the community and the danger
        that he presents to the community.

        Again, I’ve considered all factors in this matter, but in this
        regard, the court believes that he is a danger to the
        community and especially women in the community who he
        has contact with, whether under the influence of alcohol or
        not.

        Consequently, the court will sentence him as follows: at the
        aggravated assault as to [L.S.], he will be sentenced to a
        period of incarceration of [five to ten] years. At the count
        of simple assault as to [J.A.], he’ll be sentenced to a
        consecutive period of incarceration of [six] to 12 months.
        At the count of terroristic threats, he’ll be sentenced to a
        consecutive period of incarceration of [six] to 12 months.
        The aggregate sentence at that information, thus, is [six] to
        12 years.

        At the count of simple assault as to [V.L.], he’ll be
        sentenced to a period of incarceration of [six] to 12 months
        which will run consecutive to the period of incarceration
        imposed at the earlier information. Thus, the aggregate
        sentence on both informations is [six-and-a-half] to 13
        years.

N.T. Sentencing, 10/28/14, at 18-23 (some internal capitalization omitted).




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      On November 6, 2014, the trial court denied Appellant’s timely post-

sentence motion to withdraw his guilty plea and, on November 18, 2014,

Appellant filed a timely notice of appeal.      Appellant raises one claim on

appeal:

          Whether [Appellant’s] sentence is illegal where – in violation
          of his right to jury trial under Article I, Section 9 of the
          Pennsylvania Constitution and/or the Sixth and Fourteenth
          Amendments to the United States Constitution – the
          mandatory minimum sentence provision of 42 [Pa.C.S.A.]
          § 9717 was applied at Count 2 at CP-02-CR-0005846-2013
          irrespective of any stipulation to a factual predicate
          triggering application of said provision?

Appellant’s Brief at 4.

      Stated another way, Appellant claims that the trial court sentenced

him to the mandatory minimum term of two years in prison for aggravated

assault, pursuant to the mandatory minimum sentencing statute at 42

Pa.C.S.A. § 9717. Appellant claims that his sentence for aggravated assault

is thus illegal, in accordance with the United States Supreme Court’s opinion

in Alleyne v. United States, ___ U.S. ___, ___ 133 S.Ct. 2151 (2013).

Appellant’s claim fails, as the trial court clearly did not sentence Appellant

under Section 9717.        Therefore, since Section 9717 is inapplicable to

Appellant’s case, Appellant’s claim cannot succeed.

      “Legality of sentence questions are not waivable and may be raised

sua sponte by this Court.” Commonwealth v. Watley, 81 A.3d 108, 118

(Pa. Super. 2013) (en banc). Further, “[i]ssues relating to the legality of a

sentence are questions of law. Our standard of review over such questions


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is de novo and our scope of review is plenary.” Commonwealth v. Ali, 112

A.3d 1210, 1225 (Pa. Super. 2015) (internal corrections omitted).

      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.

      Therefore,   under   Alleyne,    Pennsylvania’s   mandatory   minimum

sentencing statutes were generally rendered unconstitutional insofar as the

statutes provided that:    the “aggravating facts” contained in the statutes

were not elements of the crime; notice of either the “aggravating facts” or of

the applicability of the mandatory minimum sentencing statute was not

required prior to conviction; the applicability of the mandatory minimum

statute was to be determined at sentencing; the Commonwealth need only

prove the “aggravating facts” by a preponderance of the evidence; a judge –

and not a jury – was to act as the fact-finder for purposes of determining the

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“aggravated facts;” and, if the “sentencing court refuses to apply [the

mandatory minimum sentence] where applicable, the Commonwealth shall

have the right to appellate review of the actions of the sentencing court.”

See, e.g., 18 Pa.C.S.A. § 7508(b) and (d).3

       In the case at bar, however, the trial court did not sentence Appellant

to the mandatory minimum sentence contained in 42 Pa.C.S.A. § 9717.

Certainly, as has been noted above, the trial court did not reference the

mandatory minimum statute once during the sentencing hearing and the

trial court did not declare that it believed it was required to sentence

Appellant to a mandatory minimum term.4 Instead, during the hearing, the
____________________________________________


3
  We note that 42 Pa.C.S.A. § 9717 is written differently than the mandatory
minimum sentencing statutes that this Court construed and held
unconstitutional in cases such as Commonwealth v. Newman, 99 A.3d 86
(Pa. Super. 2014) (en banc), Commonwealth v. Valentine, 101 A.3d 801
(Pa. Super. 2014), and Commonwealth v. Wolfe, 106 A.3d 800 (Pa.
Super. 2014) and that our Supreme Court interpreted and held
unconstitutional in Commonwealth v. Hopkins, ___ A.3d ___, 98 MAP
2013 (Pa. 2015). Specifically, Section 9717 does not contain any provision
explicitly declaring that: the “aggravating facts” contained in the statutes
were not elements of the crime; notice of either the “aggravating facts” or of
the applicability of the mandatory minimum sentencing statute was not
required prior to conviction; the applicability of the mandatory minimum
statute was to be determined at sentencing; the Commonwealth need only
prove the “aggravating facts” by a preponderance of the evidence; a judge –
and not a jury – was to act as the fact-finder for purposes of determining the
“aggravated facts;” and, if the “sentencing court refuses to apply [the
mandatory minimum sentence] where applicable, the Commonwealth shall
have the right to appellate review of the actions of the sentencing court.”
See, e.g., 18 Pa.C.S.A. § 7508(b) and (d).
4
 Appellant’s sentencing hearing took place on October 28, 2014 – over one
month after this Court decided Commonwealth v. Newman, 99 A.3d 86
(Footnote Continued Next Page)


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trial court orally summarized the totality of facts that led it to sentence

Appellant to a standard-range term of five to ten years in prison. Further,

we observe that: the trial court’s written sentencing order does not declare

that it imposed a mandatory minimum sentence; the written sentencing

guideline form declares that the trial court imposed a “standard range”

sentence and, in the box where the court is required to specify the

defendant’s “mandatory minimum” sentence, the court left the box blank

(thus indicating that the trial court did not impose a mandatory minimum

sentence); and, Appellant’s commitment papers specifically declare that

Appellant did not receive a mandatory minimum sentence.                 Sentencing

Order, 10/28/14, at 1; Sentencing Guideline Form, 10/28/14, at 1; Court

Commitment, 11/4/14, at 1.            Moreover, within the trial court’s opinion to

this Court, the trial court specifically stated that the mandatory minimum

sentencing term contained in Section 9717 was not considered even as a




                       _______________________
(Footnote Continued)

(Pa. Super. 2014) (en banc) (filed August 20, 2014). In Newman, an en
banc panel of this Court considered the mandatory minimum sentencing
statute at 42 Pa.C.S.A. § 9712.1 and held that the unconstitutional portions
of the statute were not severable from the remainder of the statute.
Therefore, Newman held that Section 9712.1 was unconstitutional in its
entirety. We note that, given our holding in Newman, the trial court might
have refused to apply 42 Pa.C.S.A. § 9717 because it believed that the
statute was also unconstitutional in its entirety. However, as a result of our
current holding, we express no opinion on the constitutionality of Section
9717.




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J-S32029-15



sentencing factor when the trial court constructed Appellant’s sentence.5

Trial Court Opinion, 3/5/15, at 10. As the trial court explained:

         The trial court considered the sentencing guidelines, the
         presentence report, a letter from Appellant detailing
         remorse and accountability for his actions, Appellant’s
         childhood, Appellant’s mental health diagnosis and necessity
         for treatment, testimony from the victim, photographs of
         the victim taken at the emergency room immediately
         following the assault, the victim’s inability to defend herself
         against the unprovoked attack, the victim’s long-standing
         significant injuries, the similarities to an attack by Appellant
         against his girlfriend in 2007, and Appellant’s failure to
         rehabilitate himself after being sentenced on the 2007
         assault.    After reviewing these factors, the trial court
         imposed a sentence of five to ten years because “the court
         believes that he is a danger to the community and
         especially women in the community who he was contact
         with, whether under the influence of alcohol or not.”

Trial Court Opinion, 3/5/15, at 12 (some internal capitalization omitted).

       Finally, in Commonwealth v. Zeigler, this Court explicitly held that –

where a mandatory minimum sentencing statute exists for a crime, but

where the sentencing court exceeds the mandatory minimum term by


____________________________________________


5
  We note that, even if the trial court viewed Section 9717 as a sentencing
factor (which it did not), Appellant’s sentence would still not be illegal.
Indeed, had the trial court viewed Section 9717 as a sentencing factor, the
application would merely implicate the discretionary aspects of Appellant’s
sentence. See Commonwealth v. Rhodes, 990 A.2d 732, 744 (Pa. Super.
2009) (holding: a claim that the trial court relied upon impermissible factors
at sentencing is a challenge to the discretionary aspects of a sentence).
However, Appellant has not raised a discretionary aspects of sentencing
claim on appeal. As such, even if the trial court relied upon Section 9717 as
a sentencing factor in this case, Appellant’s current claim on appeal (wherein
Appellant claims only that his sentence is illegal) would still fail.



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applying a standard guideline range sentence – the trial court has not

“sentence[d] the defendant based on the mandatory statute, and [the

defendant’s] sentence is not illegal on that ground.”     Commonwealth v.

Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015). Specifically, in Zeigler, we

held:

          we are aware that a mandatory minimum statute exists for
          [the defendant’s] aggravated assault crime since he
          admitted to visibly possessing a firearm during its
          commission. 42 Pa.C.S.A. § 9712. Based on decisions from
          this Court, imposing such a mandatory is illegal. However,
          the sentencing court exceeded the mandatory
          minimum sentence when it applied the standard
          guideline range sentence where a deadly weapon was
          used.      Hence, the court did not sentence the
          defendant based on the mandatory statute, and his
          sentence is not illegal on that ground.

Id. (emphasis added).

        Therefore, since the trial court did not impose a mandatory minimum

sentence in this case, Appellant’s claim that his sentence is illegal is

baseless. The claim thus fails.

        Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2015




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