J-S34010-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

RAY ALLEN HALE

                            Appellant               No. 1222 WDA 2013


            Appeal from the Judgment of Sentence March 14, 2013
                In the Court of Common Pleas of Blair County
             Criminal Division at No(s): CP-07-CR-0002543-2011


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY OTT, J.:                         FILED NOVEMBER 06, 2014

        Ray Allen Hale appeals from the judgment of sentence imposed March

14, 2013, in the Blair County Court of Common Pleas.          The trial court

imposed a mandatory minimum sentence of 25 to 50 years’ imprisonment,

pursuant to the “three strikes” statute for recidivist sexual offenders,1

following Hale’s jury conviction of one count of indecent assault, graded as a

first-degree misdemeanor.2 On appeal, Hale argues the trial court erred in

imposing the mandatory minimum sentence because (1) the Commonwealth

____________________________________________


1
  See 42 Pa.C.S. § 9718.2(a)(1) (mandating sentence of at least 25 years’
imprisonment for conviction of certain sexual offenses when, at the time of
the commission of the offense, the defendant had been previously convicted
of one other sexual offense).
2
    18 Pa.C.S. §§ 3126(a)(7) and (b)(3).
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failed to provide Hale with notice of the applicability of the statute prior to

trial, and (2) the statute violates his constitutional right against cruel and

unusual punishment. For the reasons set forth below, we affirm.

        Hale’s arrest and conviction are predicated upon the minor victim’s

allegation that Hale raped her, in front of another minor child, in March of

2011, just prior to her 12th birthday. After the victim reported the assault,

Hale was charged with rape, statutory sexual assault, aggravated indecent

assault, and indecent assault.3         Prior to the start of trial on July 18, 2012,

the prosecutor informed the trial court that the Commonwealth had made

the following plea offer to Hale, which he had previously rejected – in

exchange for an open guilty plea to the charge of rape, the Commonwealth

would not seek the 25-year mandatory minimum sentence.                         N.T.,

7/18/2012, at 4.       Upon inquiry by the trial court if Hale had changed his

position, defense counsel asked Hale if he was aware of the offer, to which

Hale replied, “Yeah, that’s what he told me at pre-lim.” Id. Counsel then

asked, “Do you have any interest in pursuing that offer?” to which Hale

responded, “No.” Id. The case then proceeded to trial. At the close of the

Commonwealth’s case-in-chief, the trial court dismissed the charge of

aggravated indecent assault.



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3
    18 Pa.C.S. §§ 3121(c), 3122.1, 3125(b), and 3126(a)(7), respectively.




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       On July 19, 2012, the jury returned a verdict of not guilty on the

charges of rape and statutory assault, and a verdict of guilty on the charge

of indecent assault. In a separate question, the jury also determined that

the Commonwealth had “not proven” the indecent contact occurred “by

touching the [victim]’s sexual organs and parts with the sexual organs and

parts of [Hale.]”4 N.T., 7/19/2012, at 356.

       The next day, the Commonwealth provided Hale with written notice of

its intention to seek the mandatory minimum 25-year prison term pursuant

to 42 Pa.C.S. § 9718.2(a)(1), as this was Hale’s second conviction of a

sexual offense.5 On March 8, 2013, the court held a hearing to determine

whether Hale met the criteria for classification as a sexually violent predator

(“SVP”)    pursuant      to   Pennsylvania’s     Sex   Offender   Registration   and

Notification Act (“SORNA”).6 It determined that he did so, and proceeded to
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4
  This question was relevant to the grading of the offense. See 18 Pa.C.S. §
3126(b)(3)(iii) (stating conviction under subsection (a)(7) is graded as a
first degree misdemeanor unless, inter alia, “[t]he indecent assault was
committed by touching the complainant’s sexual or intimate parts with
sexual or intimate parts of the person” in which case it is graded as a third-
degree felony). Therefore, based upon the jury’s finding, Hale’s conviction
of indecent assault was graded as a first-degree misdemeanor.
5
 Specifically, the Commonwealth alleged Hale had been convicted of incest
and indecent assault in 1996. See Commonwealth’s Notice of Mandatory
Sentence, 7/20/2012, at ¶ 3.
6
  We note that SORNA went into effect on December 20, 2012, to replace
Pennsylvania’s Megan’s Law. See 42 Pa.C.S. §§ 9799.10-9799.41 (as
amended 2011, Dec. 20, P.L. 446, No. 111, § 12).




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sentence him to a mandatory minimum 25 to 50 years’ imprisonment

pursuant to Section 9718.2.         Counsel filed a timely post sentence motion,

which the trial court denied on July 2, 2013. This timely appeal followed.7, 8

       Both of the issues raised by Hale on appeal challenge the trial court’s

imposition of the mandatory 25 to 50 year sentence for his conviction of

indecent assault.      We note there appears to be no clear consensus as to

whether such claims challenge the legality or discretionary aspects of

sentencing. See Commonwealth v. Foster, 17 A.3d 332, 345 (Pa. 2011)

(plurality) (challenge to imposition of mandatory minimum raises legality of

sentencing issue) (Per Baer, J., with two justices joining, two justices

concurring only in the judgment, and two justices concurring separately).

Nevertheless, even if such a claim raises a discretionary claim, Hale

preserved his challenges in a post-sentence motion, and we may address

them on appeal.9       See Commonwealth v. Dunphy, 20 A.3d 1215, 1220

(Pa. Super. 2011).
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7
  Hale initially filed a pro se notice of appeal on March 13, 2013. However,
he later asked this Court to dismiss the appeal without prejudice,
presumably because counsel had filed a post-sentence motion. On May 22,
2013, this Court quashed the pro se appeal as premature.
8
  On September 4, 2013, the trial court ordered Hale to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Hale complied with the trial court’s directive and filed a concise statement on
September 20, 2013.
9
  Although Hale neglected to include in his appellate brief the requisite
statement pursuant to Pa.R.A.P. 2119(f), setting forth the reasons relied
(Footnote Continued Next Page)


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      First, Hale contends the trial court erred in imposing the mandatory

minimum “second strike” sentence when he was not provided with notice of

the applicability of the statute before trial.10 At the time Hale was convicted

of the present offense, Section 9718.2 required the Commonwealth to

provide him with notice of its intention to seek the mandatory minimum

sentence before trial. See 42 Pa.C.S. § 9718.2(c) 2006, Nov. 29, P.L. 1567,

No. 178, § 5, effective Jan. 1, 2007. The statute was amended, effective

December 20, 2012, to require notice by the Commonwealth “after

conviction and before sentencing.”               42 Pa.C.S. § 9718.2(c).   Hale argues

that, while he had notice that the Commonwealth intended to invoke the

mandatory minimum “second strike” sentence for the rape charge, “there

was no discussion regarding its application to the other charges or, more

specifically, to a misdemeanor one Indecent Assault charge.” Hale’s Brief at

18. He claims that notice of the Commonwealth’s intention to seek the 25

year mandatory minimum sentence for the indecent assault charge was




                       _______________________
(Footnote Continued)

upon for allowance of appeal, the Commonwealth did not object to this
omission. Therefore, we may overlook the defect. Commonwealth v.
Titus, 816 A.2d 251, 255 (Pa. Super. 2003).
10
   This claim raises a substantial question “that the sentence imposed is …
inconsistent with a specific provision of the Sentencing Code,” that is,
Section 9718.2. Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa.
Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009) (citation omitted).



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provided only after trial.        Accordingly, Hale asserts the trial court was

without authority to impose the mandatory minimum sentence in this case.11

       The trial court addressed this claim in its opinion as follows:

              The current version of 42 Pa.C.S.A. section 9718.2 does
       not contain the notice requirement. The 2011 version does not
       specify what manner of notice is required pre-trial, and
       specifically does not require written notice. In this case, on the
       first day of trial and before the jury was sworn or any testimony
       taken, [Hale] was colloquied on the record as to his
       understanding of the fact that the Commonwealth was making a
       plea agreement offer to him of an open plea to the charge of
       Rape of a Child. The Commonwealth’s position was that the
       Commonwealth would not seek the 25-year mandatory sentence
       for a conviction if he were to plead guilty. The offer would no
       longer be in effect if [Hale] chose to go to trial. … [Hale] was
       questioned on the record as to his understanding of the
       Commonwealth’s position, and he indicated … that he was aware
       of the Commonwealth’s offer, was not interested in it, and chose
       to go to trial.

             The Court finds from the record that the Commonwealth
       had made its position clear before trial that if [Hale] chose to
       plead guilty it would not seek the 25-year mandatory minimum
       at sentencing and that if he went to trial and was convicted they
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11
   We note that Hale’s “second strike” mandatory minimum sentence did not
violate the United States Supreme Court’s recent decision in Alleyne v.
United States, 133 S.Ct. 2151 (2013). This Court has explained that:

       Prior convictions are the remaining exception to Apprendi v.
       New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
       (2000), and Alleyne …, insofar as a fact-finder is not required to
       determine disputed convictions beyond a reasonable doubt to
       comport with the Sixth Amendment jury trial right. See
       Almendarez–Torres v. United States, 523 U.S. 224, 118
       S.Ct. 1219, 140 L.Ed.2d 350 (1998).

Commonwealth v. Hale, 85 A.3d 570, 585 n.13 (Pa. Super. 2014).




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     would seek that penalty. [Hale] was colloquied under oath and
     said he understood and still wanted to go to trial. He is not
     entitled to relief on this claim.

Trial Court Opinion, 10/8/2013, at 5-6 (unnumbered) (record citations

omitted).

     We agree with the reasoning of the trial court.    There is no dispute

that, prior to trial, Hale was aware the Commonwealth intended to seek a

mandatory minimum 25-year sentence pursuant to the sexual offender

recidivist statute, and the Commonwealth had offered to forgo imposition of

the mandatory minimum if he entered a guilty plea to rape of a child. In

fact, Hale acknowledged on the first day of trial that he was informed of the

Commonwealth’s plea offer at his preliminary hearing. N.T., 7/18/2012, at

4.

     What Hale disputes is the specificity of the Commonwealth’s notice.

He contends “[t]here is no mention by the Commonwealth or Court that the

[25] year mandatory would apply to any of the other charges” except rape.

Hale’s Brief at 19.    Our review of the record, however, reveals that

imposition of the mandatory minimum sentence was not specifically tied to

the rape charge. Indeed, there is no indication by the Commonwealth that it

intended to seek the mandatory minimum only with respect to the rape

charge.     Rather, a plain reading of the statute reveals that a person

convicted of any offense “set forth in section 9799.14 (relating to sexual

offenses and tier system)” may be subject to a mandatory minimum 25-year

sentence, “if at the time of the commission of the current offense the person


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had previously been convicted of an offense set forth in section 9799.14 or

an equivalent crime ….” 42 Pa.C.S. § 9718.2(a). Accordingly, we agree with

the trial court’s conclusion that the Commonwealth provided Hale with

sufficient notice before trial of its intention to seek a mandatory minimum

25-year sentence pursuant to Section 9718.2.                 Therefore, no relief is

warranted on his first claim.

       Next, Hale contends the application of the “second strike” recidivist

statute    violated    his   constitutional    right   against   cruel   and   unusual

punishment.12       Specifically, he argues the 25-year mandatory minimum

sentence was “grossly disproportionate” to his crime, a first-degree

misdemeanor. Hale’s Brief at 12.

       Our review of an Eighth Amendment proportionality argument is

guided by a three-prong test which requires us to examine:

       (i) the gravity of the offense and the harshness of the penalty;
       (ii) the sentences imposed on other criminals in the same
       jurisdiction; and (iii) the sentences imposed for commission of
       the same crime in other jurisdictions.

Commonwealth v. Spells, 612 A.2d 458, 462 (Pa. Super. 1992) (en banc),

quoting Solem v. Helm, 463 U.S. 277, 292 (1983). “[A] reviewing court is

not obligated to reach the second and third prongs of the test unless ‘a

threshold comparison of the crime committed and the sentence imposed
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12
   This claim raises a substantial question that the sentence imposed is
“contrary to the fundamental norms underlying the sentencing process.”
Ventura, supra, 975 A.2d at 1133.



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leads to an inference of gross disproportionality.’”         Commonwealth v.

Baker, 78 A.3d 1044, 1047-1048 (Pa. 2013), quoting Spells, supra. Our

Supreme Court has explained:

      The Eighth Amendment does not require strict proportionality
      between crime and sentence. Rather, it forbids only extreme
      sentences which are grossly disproportionate to the crime.

Baker, supra, 78 A.3d at 1047 (quotation omitted).

      With regard to the first prong of the proportionality test, Hale

emphasizes that although the jury “must have believed that there was some

type of touching, grabbing or fondling which occurred[,]” they “clearly

disbelieved the complainant’s claim of sexual intercourse.”        Hale’s Brief at

13.   Further, he states because the statutory maximum for a first degree

misdemeanor is only five years, the 25 to 50 year sentence imposed

represents a “tenfold increase in his potential sentence.”             Id. at 14

Therefore, Hale asserts a comparison of the crime committed, a first degree

misdemeanor for inappropriate touching, with the sentence imposed, 25 to

50 years’ imprisonment, “raises an inference of gross disproportionality”

sufficient to proceed to the second and third prongs of the test. Id. at 13-

14.

      The Supreme Court considered a similar challenge in Baker, supra,

which we find to be instructive. In that case, the defendant was convicted of

29 counts of sexual abuse of children and one count of criminal use of a

communication    facility,   for   his   possession   and   distribution   of   child

pornography.    Because he had been previously convicted of possession of

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child pornography, the defendant was sentenced to a mandatory minimum

term of 25 to 50 years’ imprisonment pursuant to the “second strike”

provision of Section 9718.2. On appeal, he argued his sentence violated the

prohibition against cruel and unusual punishment.              A panel of this Court

affirmed his judgment of sentence, determining that the defendant had

“failed to show that the length of his sentence raised an inference of gross

disproportionality when compared to the gravity of his crime.” Id. at 1047.

Thereafter, the Supreme Court granted allowance of appeal, and affirmed.

      The   Supreme     Court      first    emphasized     that      “successful   [gross

disproportionality]   challenges     are     extremely    rare[,]”    noting   the   only

successful challenge in the United States Supreme Court involved a sentence

of life imprisonment, without the possibility of parole, for a defendant who

was convicted of passing a bad check in the amount of $100.                    Id., citing

Solem, supra. Although the bad check charge was the defendant’s seventh

non-violent conviction, the United States Supreme Court “concluded that the

impossibility of parole was a determinative factor in judging the punishment

to be disproportionate to the crime.”               Id. at 1048.      The Baker Court

recognized, however, that the United States Supreme Court had upheld the

constitutionality of other lengthy sentences for seemingly minor crimes. Id.

at 1049, citing Ewing v. California, 538 U.S. 11 (2003) (“three strikes”

sentence of 25 years to life for theft of three golf clubs was constitutional)

and Hutto v. Davis, 454 U.S. 370 (1982) (sentence of 40 years’




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imprisonment for possession with intent to deliver nine ounces of marijuana

was constitutional).

       With regard to the sentence on appeal, the Baker Court rejected the

argument of the defendant and his amicus13 that his crime involved the

“simple possession of so-called ‘dirty pictures’ where there is no direct

victim.” Id. at 1051. Rather, the Court characterized the defendant’s crime

as “a very serious and grave offense.” Id. at 1052. The Court explained:

       It bears repeating here that Appellant was sentenced under a
       recidivist sentencing scheme. The fact that Appellant is a repeat
       offender certainly goes to the gravity of his instant offense.
       Equally importantly, we cannot view Appellant’s crimes as he
       suggests, in a manner that detaches them from the devastating
       victimization that child pornography produces.          Appellant’s
       participation in the criminal subculture of viewing images of child
       sexual abuse for personal gratification is part and parcel of that
       victimization. Appellant’s crime is his continued participation as
       an enabler of sexual crimes against children via his status as a
       possessor of child pornography. Although Appellant did not
       personally commit the underlying sexual abuse, he was
       certainly a willing voyeuristic participant in its
       commission after the fact, and it is his demand to possess
       images of child sexual abuse which permits and, to an
       extent, causes, the production of child pornography. It is
       unacceptably inaccurate to characterize or label Appellant’s
       crime as the simple possession of “dirty pictures” or the use of
       an outlaw product. His crime is more accurately understood as
       secondary or indirect participation in the sexual abuse and
       exploitation of innocent children for personal gratification. That
       is a very serious and grave offense. It is certainly no less
       grave than receiving $120.75 by false pretenses or
____________________________________________


13
   The Defender Association of Philadelphia filed an amicus brief on the
defendant’s behalf. Id. at 1048.




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      shoplifting three golf clubs, recidivist offenses for which
      lengthier sentences of imprisonment than that imposed
      here were upheld against Eighth Amendment challenges
      by the Supreme Court of the United States.

Id. at 1051-1052 (internal citations and footnote omitted) (emphasis

supplied).

      Finally, the Baker Court noted the sentence, although lengthy, was

“not tantamount to a life sentence without the possibility of parole[,]” such

as the sentence the United States Supreme Court struck down in Solem.

Id. at 1052. The Court explained the defendant would be 56 years old at

the expiration of his minimum term.       Id.   Accordingly, the Baker Court

concluded that “a threshold comparison” of the gravity of the defendant’s

offense against the length of his sentence did not “lead to an inference of

gross disproportionality.”   Id.   See also Commonwealth v. Barnett, 50

A.3d 176 (Pa. Super. 2012) (rejecting 8th Amendment challenge to

mandatory minimum 25-year sentence for recidivist sexual offender of two

victims convicted of two counts each of unlawful contact with a minor,

indecent assault and corruption of minor; finding no inference of gross

disproportionality from the fact that jury acquitted defendant of rape and

aggravated indecent assault, the most serious offense was graded as a third

degree felony, defendant would not be eligible for parole until he was 95

years old, and defendant presented character testimony).

      We find the same reasoning in Baker applicable here.       While Hale

attempts to downplay his culpability by emphasizing the crimes for which he

was acquitted, he cannot escape the fact that the jury convicted him of

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indecent assault against a minor. With respect to this conviction, the jury

determined, beyond a reasonable doubt, that Hale had “indecent contact

with the [victim], cause[d] the [victim] to have indecent contact with [him]

or intentionally cause[d] the [victim] to come into contact with seminal fluid,

urine or feces for the purpose of arousing sexual desire in [himself] or the

[victim]… and the [victim was] less than 13 years of age.”        18 Pa.C.S. §

3126(a)(7). “Indecent contact” is defined as “[a]ny touching of the sexual

or other intimate parts of the person for the purpose of arousing or

gratifying sexual desire, in any person.” 18 Pa.C.S. § 3101. The fact that

his crime was graded as a misdemeanor is not dispositive. Indeed, the jury

found he directly participated in a sexual offense against an innocent

child.

         Furthermore, Hale was sentenced pursuant to a recidivist statute. As

the Supreme Court noted in Baker, “[t]he fact that [Hale] is a repeat

offender certainly goes to the gravity of the instant offense.” Baker, supra,

78 A.3d at 1051. Moreover, Hale was determined to be a sexually violent

predator pursuant to SORNA. While we recognize Hale will be 79 years old

when he is first eligible for parole,14 the court did not impose a life sentence

without the possibility of parole. See Barnett, supra at 202 (finding the


____________________________________________


14
  The record reveals that Hale, who was born in 1957, was incarcerated on
December 1, 2011 for the instant offense, and was unable to post bail.
Therefore, his earliest possible parole date will be in 2036.



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fact that defendant would be 95 years old when first eligible for parole “a

mixed bag of considerations concerning proportionality.”). Certainly, Hale’s

offense is no less grave then the convictions of possession of child

pornography in Baker, and theft of golf clubs in Ewing.

        Therefore, because we conclude Hale’s sentence was not grossly

disproportionate to the crime for which he was convicted, we need not

address the remaining prongs of his proportionality argument,15 and we

agree with the ruling of the trial court that Hale’s sentence was not violative

of his constitutional right against cruel and unusual punishment.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/06/2014




____________________________________________


15
     See Spells, supra.



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