J. S48021/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                        :       IN THE SUPERIOR COURT OF
                                                    :            PENNSYLVANIA
                                                    :
                     v.                             :
                                                    :
FRANK D. CLEMENT                                    :
                                                    :
                             Appellant              :
                                                    :       No. 1534 WDA 2015

          Appeal from the Judgment of Sentence September 18, 2015
                 In the Court of Common Pleas of Erie County
              Criminal Division No(s): CP-25-CR-0002345-2014


BEFORE: BOWES, DUBOW, and MUSMANNO, JJ.

MEMORANDUM BY DUBOW, J.:                                         FILED AUGUST 31, 2016

        Appellant, Frank D. Clement, appeals from the Judgment of Sentence

entered on September 18, 2015, in the Court of Common Pleas in Erie

County     after   his    convictions    for   20       counts    of   Possession   of   Child

Pornography.1       After careful review, we find Appellant’s proportionality

challenge to the constitutionality of his sentence based on Article I, Section

13 of the Pennsylvania Constitution undeveloped and, therefore, waived.

Accordingly, we affirm.




1
    18 Pa.C.S. § 6312(d).



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        In 2002, Appellant pled guilty to federal charges of Possession of

Material Depicting Sexual Exploitation of a Minor.2           On May 7, 2015,

Appellant pled guilty to 20 counts of Possession of Child Pornography.

Because of his prior federal child pornography conviction, Appellant was

sentenced under 42 Pa.C.S. § 9718.2, which provides a mandatory minimum

sentence of 25 years for recidivist offenders.3 On September 18, 2015, the

trial court sentenced Appellant to concurrent sentences on each of the

twenty convictions, resulting in an aggregate sentence of 25 years’ to 50

years’ incarceration.




2
    18 U.S.C. § 2252.
3
    The sentencing statue at issue provides, in relevant part:

        (a)   Mandatory sentence. –

        (1)   Any person who is convicted in any court of this
              Commonwealth of an offense set forth in section 9799.14
              (relating to sexual offenses and tier system) shall, if at the
              time of the commission of the current offense the person
              had previously been convicted of an offense set forth in
              section 9799.14 or an equivalent crime under the laws of
              this Commonwealth in effect at the time of the commission
              of that offense or an equivalent crime in another
              jurisdiction, be sentenced to a minimum sentence of at
              least 25 years of total confinement, notwithstanding any
              other provision of this title or other statute to the contrary.

42 Pa.C.S. § 9718.2(a)(1).

     Appellant was previously convicted of 18 U.S.C. § 2252, one of the
crimes enumerated in 42 Pa.C.S. § 9799.14(b)(12).



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      After the denial of his Motion for Reconsideration, Appellant timely

appealed.   Both Appellant and the trial court satisfied the requirements of

Pa.R.A.P. 1925.

      Appellant raises the following issues on appeal:

      1. The sentence imposed in this case under 42 Pa.C.S. § 9718.2
         and the Statute itself is unconstitutional because they violate
         the prohibition on cruel and unusual punishments contained
         in Article I, § 13 of the Pennsylvania Constitution and state
         substantive due process.

      2. The sentence imposed is unconstitutional because it violates
         the proportionality requirement of Article I, § 13 and
         substantive due process under the Pennsylvania Constitution.

Appellant’s Brief at 1.

      Appellant’s challenge to the constitutionality of his sentence is a pure

question of law. Brown v. Levy, 73 A.3d 514, 517 (Pa. 2013). Therefore,

our scope of review is plenary and our standard of review is de novo. Id.

      In addressing constitutional challenges, we are mindful that

      there is a strong presumption that legislative enactments are
      constitutional. Commonwealth v. Barud, [ ] 681 A.2d 162,
      165 (Pa. 1996). For an act to be declared unconstitutional,
      appellant must prove that the act “clearly, palpably and plainly”
      violates the constitution. Id. (citation omitted). All doubts are to
      be resolved in favor of sustaining a statute; thus an appellant
      has the heavy burden of persuasion when challenging the
      constitutionality of a statute. Pennsylvania School Boards
      Association, Inc. v. Commonwealth Association of School
      Administrators, [ ] 805 A.2d 476, 479 (2002).

Commonwealth v. Nguyen, 834 A.2d 1205, 1208 (Pa. Super. 2003)

      Appellant bases both of his issues on a contention that because

Pennsylvania’s Constitution “is more stringent regarding the issue of Cruel


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and Unusual Punishment than is the United States Constitution,” the

mandatory minimum contained in 42 Pa.C.S. § 9718.2(a)(1) violates Article

I, Section 13 of the Pennsylvania Constitution prohibiting the infliction of

cruel punishment.     Appellant’s Brief at 4 (without citation to authority).

Appellant states that the decision in Alleyne v. United States, 133 S.Ct.

2151 (U.S. 2013), “based on the 5th and 6th Amendments to the Federal

Constitution as interpreted in Apprendi v. N.J., 530 U.S. 466 (2000), …

implies that ’cookie cutter’ mandatory minimum sentencing schemes, such

as the one at hand, should be highly scrutinized.” Appellant’s Brief at 5. He

further argues that the application of Section 9718.2 resulted in an

impermissibly disproportionate sentence because he “never committed a

hands-on sex offense,” and he received “a greater punishment than many

who   perpetuate    actual,   physical,   sexual   offenses   against   children.”

Appellant’s Brief at 6-7.

      This Court will address only those issues properly presented and

developed in an appellant’s brief as required by our rules of appellate

procedure, Pa.R.A.P. 2101-2119. “Appellate arguments which fail to adhere

to these rules may be considered waived, and arguments which are not

appropriately developed are waived.” This includes issues of a constitutional

dimension. Coulter v. Ramsden, 94 A.3d 1080, 1089 (Pa. Super. 2014),

appeal denied, 110 A.3d 998 (Pa. 2014).




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      We conclude that Appellant waived his issues for failing to develop

them as required by our rules of appellate procedure.           Pa.R.A.P. 2119(a)

provides that an appellant is required to cite to pertinent authority to

support particular points within his argument. Appellant provides no citation

to relevant authority to support his averment that Article 1, Section 13 of

the   Pennsylvania    Constitution   is    “more   stringent”   than   the   Eighth

Amendment of the U.S. Constitution. Appellant’s Brief at 4. Rather he cites

Alleyne and Apprendi, cases based on the Fifth and Sixth Amendments to

the U.S. Constitution.   We, thus, conclude he has waived his issues. See

Coulter, supra.      See also Commonwealth v. Kane, 10 A.3d 327, 331

(Pa. Super. 2010) (“This Court will not act as counsel and will not develop

arguments on behalf of an appellant.” (citation and quotation marks

omitted)).4

      Even if Appellant’s issues were not waived, we would conclude that

they are without merit.      Appellant urges this Court to “scrutinize” the

constitutionality of the mandatory minimum provided in 42 Pa.C.S. § 9718.2


4
  Additionally, Appellant has not provided an analysis of the factors required
by Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), to support his
argument. The Edmunds Court held that litigants must brief and analyze at
least the following four factors in order to present a challenge implicating the
Pennsylvania Constitution: “1) text of the Pennsylvania constitutional
provision; 2) history of the provision, including Pennsylvania case-law; 3)
related case-law from other states; and 4) policy considerations, including
unique issues of state and local concern, and applicability within modern
Pennsylvania jurisprudence.” Id. at 895.




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by considering that the sentence he received is disproportionate to the

crimes he committed because he never had actual physical contact with a

child. He avers that his crimes of possession of child pornography were not

so grave as to deserve a 25-year minimum sentence, particularly in light of

his “addiction to pornography.”     See Appellant’s Brief at 6-7 (citing

Robinson v. California, 370 U.S. 660 (1962)).5

      Our Supreme Court has already thoroughly scrutinized and squarely

rejected the exact same argument of disproportionality Appellant has

presented here. See Commonwealth v. Baker, 78 A.3d 1044, 1052 (Pa.

2013).6    Baker and the instant case are essentially procedurally and

factually identical.   Appellant has not made a compelling argument to

persuade us that the disposition of his case would be any different from our

Supreme Court’s disposition in Baker.

      In light of Appellant’s failure to develop his state constitutional

challenge, we conclude Appellant waived the issues raised on appeal.


5
  In Robinson, the U.S. Supreme Court held that a statute criminalizing the
disease of drug addiction “inflicts a cruel and unusual punishment in
violation of the Fourteenth Amendment.” Id., 370 U.S. at 667.
6
   In Baker, our Supreme Court analyzed the same disproportionality
argument within the framework of the Eighth Amendment to the U.S.
Constitution before rejecting Baker’s argument that because he only had
pictures, and had not himself engaged in any sexual abuse or exploitation of
children, his crimes did not warrant a 25-year mandatory minimum sentence
which he characterized as “grossly disproportionate.” Id., 78 A.3d at 1051-
52.




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     Judgment of Sentence affirmed.

     Judge Musmanno joins the memorandum.
     Judges Bowes Concurs in Result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2016




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