J-S25012-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

SETH M. CRITTENDEN

                            Appellant               No. 1372 MDA 2013


                    Appeal from the Sentencing July 1, 2013
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0002913-2012


BEFORE: OTT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                         FILED DECEMBER 23, 2014

       Seth M. Crittenden appeals from the judgment of sentence imposed on

July 1, 2013, in the Court of Common Pleas of Berks County. On March 5,

2013, a jury found Crittenden guilty of two counts of indecent assault 1 and

one count of indecent exposure.2 The court sentenced Crittenden to a term

of six to 23 months’ imprisonment plus four years of probation. On appeal,

Crittenden raises the following two issues: (1) the court erred in grading the

indecent assault (complainant less than 13 years of age) as a third-degree

felony instead of a first-degree misdemeanor; and (2) counsel was

ineffective in failing to conduct a reasonable investigation and present the
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1
    18 Pa.C.S. §§ 3126(a)(1) and (a)(7).
2
    18 Pa.C.S. § 3127(a).
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testimony of witnesses who would have testified about positive and friendly

interaction between Crittenden and the victim after the dates of the

offenses.   After a thorough review of the submissions by the parties, the

certified record, and relevant law, we affirm in part and vacate in part.

      The trial court set forth the facts as follows:

            The complainant in this case is a juvenile referred to
      herein as “K.R.” In November 2011, officials were alerted by
      school personnel that K.R. reported having been sexually abused
      several years earlier. An investigation ensued, in which K.R.
      reported that [Crittenden] had on several occasions touched and
      fondled her genitals and otherwise engaged in sexual contact
      with her, at her family’s home in Amity Township, Berks County,
      Pennsylvania.

             These incidents began when K.R. was seven years old.
      K.R. described four distinct incidents. She testified that the first
      took place in her bedroom while the families were gathered at
      her home to watch a NASCAR race. She testified that she and
      [Crittenden] were alone playing video games when [Crittenden]
      told her that if she wanted to play the game, she had to allow
      him to put his hands in her pants. [K.R.] could not remember
      the exact date this occurred, only that it was one of her earliest
      memories and that age 7 was the earliest age she could think
      back to.

            The second incident K.R. testified about also took place in
      her bedroom, again when she was alone with [Crittenden]:

               He told me to take my     pants off so I did, and so he
         put his mouth on my vagina      and I let him…. He took his
         pants off and told me to put    my mouth on his penis…. It
         went on until the point where   he ejaculated.

      K.R. testified that this incident went on approximately five
      minutes.

            K.R. testified of a third occasion which she remembered
      taking place in the upstairs bathroom:


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          He told me to take my clothes off so I did. And then he
       took his clothes off. And then he laid on top of me in the
       bathroom…. He rubbed his penis in my vagina but it didn’t
       go inside me.

     K.R. said this went on for approximately 10 minutes.

           The fourth and last occasion of which K.R. testified took
     place in her brother’s bedroom, on April 28, 2007, the date of
     her older sister’s sixteenth birthday celebration. K.R. testified
     that she, [Crittenden], and her brother were playing video
     games in her brother’s room, and that she and [Crittenden] were
     lying next to each other on the bed:

          We were all playing video games. And my brother went
       to the bathroom. And [Crittenden] came up and put his
       arms around me and tried to put his hands down my pants
       but I told him no and I tried to get away. And I told him
       no multiple times until I just gave up….

     This went on until K.R.’s brother came back from the bathroom
     and walked into the room, while [Crittenden]’s hands were still
     in K.R.’s pants. K.R. testified: “He touched my vagina but not
     for very long because that’s when my brother walked in.
     [Crittenden] quickly pulled his hands out.” K.R.’s brother also
     testified that when he came back into the room “they were
     laying down in my bed in a spooning position. And when I
     walked in, they both jumped up. And we continued to play video
     games.”2
       2
         K.R. and her brother gave materially consistent accounts
       of that occasion, with some factual differences:      K.R.
       testified that the door was open and that she and
       [Crittenden] were under the covers; her brother testified
       that the door had been closed and that K.R. and
       [Crittenden] were on top of the covers.

           In November 2011, K.R. made the following entry in her
     journal:

         One thing I would put on my shirt would be “sexually
       abused.” A lot of people don’t know, but when I was
       younger my two cousins did some pretty bad things to me.
       The only [sic] they stopped was because my brother found

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          out and told my parents. From the age of 5 to 10 this
          went on, 7 years. What I feel now is mostly not hate. I’m
          afraid of what’ll happen if I’m alone with any guy. Even if
          it’s my friend.

             This journal entry prompted K.R.’s teacher to contact
       school officials, who reported it to the police. An investigation
       by the Berks County District Attorney resulted in [Crittenden]’s
       arrest on May 27, 2012.

Trial Court Opinion, 12/17/2013, at 2-4 (record citations omitted).

       Crittenden     was    charged     with    rape,   involuntary   deviate   sexual

intercourse, aggravated indecent assault, and indecent exposure. A two-day

jury trial began on March 4, 2013.              As noted above, the jury convicted

Crittenden of two counts of indecent assault and one count of indecent

exposure. The jury acquitted him of the remaining charges. The trial court

sentenced Crittenden on July 1, 2013 to a term of six to 23 months’

imprisonment for the indecent assault (complainant less than 13 years of

age) conviction, and two consecutive terms of two years’ probation for the

other indecent assault (without the consent of the other person) conviction

and the indecent exposure offense.              Crittenden did not file post-sentence

motions but did file a timely notice of appeal.3

       Preliminarily, we note Crittenden’s challenge to the effective assistance

of trial counsel must be deferred until collateral review.              Recently, the
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3
   On August 1, 2013, the trial court ordered Crittenden to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Crittenden filed a concise statement on August 21, 2013. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on December 17, 2013.



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Pennsylvania Supreme Court in Commonwealth v. Holmes, 79 A.3d 562

(Pa. 2013), reaffirmed the general rule first set forth in Commonwealth v.

Grant, 813 A.2d 726 (Pa. 2002), that “claims of ineffective assistance of

counsel are to be deferred to PCRA review; trial courts should not entertain

claims of ineffectiveness upon post-verdict motions; and such claims should

not be reviewed upon direct appeal.”             Holmes, supra, 79 A.3d at 576.

Although the Holmes Court recognized two exceptions to that general rule,

neither    is   applicable    here.4      Accordingly,   we   dismiss   Crittenden’s

ineffectiveness claim without prejudice to him to raise in a timely collateral

proceeding.

       In his remaining issue, Crittenden claims the trial court erred in

grading Count 12, indecent assault (person less than 13 years of age), as a

third-degree felony instead of a first-degree misdemeanor for several

reasons.    First, he raises an ex post facto clause5 argument, claiming the

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4
  The Holmes Court limited those exceptions to the following: (1) where
the trial court determines that a claim of ineffectiveness is “both meritorious
and apparent from the record so that immediate consideration and relief is
warranted[;]” or (2) where the trial court finds “good cause” for unitary
review, and the defendant makes a “knowing and express waiver of his
entitlement to seek PCRA review from his conviction and sentence, including
an express recognition that the waiver subjects further collateral review to
the time and serial petition restrictions of the PCRA.” Holmes, supra, 79
A.3d at 564, 577 (footnote omitted).
5
  See U.S. Const. Art. I, § 10; Pa. Const. Art. I, § 17. “A state law violates
the ex post facto clause if it was adopted after the complaining party
committed the criminal acts and ‘inflicts a greater punishment than the law
(Footnote Continued Next Page)


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indecent assault statute was amended on November 23, 2005, during the

time when these assaults occurred. Crittenden’s Brief at 16-18, 22-23. He

states, “Given that [the victim] could not recall the exact or … the

approximate dates of the inappropriate contact she described, it could thus

have occurred either before or after the amendment.” Id. at 16. Therefore,

he claims the court should have applied the pre-amendment grading.

Second, Crittenden asserts the court erred in failing to provide the jury with

an instruction regarding “course of conduct,” which was a necessary factor in

grading the crime as a third-degree felony. Relying on Commonwealth v.

Surovcik, 933 A.2d 651 (Pa. Super. 2007), appeal denied, 951 A.2d 1163

(Pa. 2008), he states the “lack of a jury instruction on course of conduct

negates consideration of that factor for sentencing purposes, and …

[Crittenden] should only be considered for a first-degree misdemeanor[.]”

Crittenden’s Brief at 21. Lastly, Crittenden contends “the classification of his

offense as a felony as opposed to a misdemeanor makes a great deal of

difference, especially considering the opprobrium that would attach to his

vocational and social status in the future.” Id.

      We begin with Crittenden’s ex post facto argument. It merits mention

Crittenden’s ex post facto claim was raised for the first time in his appellate

                       _______________________
(Footnote Continued)

annexed to the crime, when committed.’” Commonwealth v. Fleming,
801 A.2d 1234, 1237 (Pa. Super. 2002) (citation omitted), appeal denied,
906 A.2d 539 (Pa. 2006).



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brief before this Court. Normally, we would find the issue waived pursuant

to Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998), and its

progeny. See also Pa.R.A.P. 302. However, because Crittenden’s challenge

is to the legality of his sentence, it cannot be waived. See Commonwealth

v. Tustin, 888 A.2d 843, 845 (Pa. Super. 2005) (due process constitution

argument was not waived for failure to raise with trial court because it

involved grading of an offense which implicates the legality of the sentence,

a non-waivable sentencing issue).

     Our standard of review is as follows.

     A challenge to the legality of a sentence may be raised as a
     matter of right, is not subject to waiver, and may be entertained
     as long as the reviewing court has jurisdiction. If no statutory
     authorization exists for a particular sentence, that sentence is
     illegal and subject to correction. An illegal sentence must be
     vacated. We can raise and review an illegal sentence sua sponte.
     When we address the legality of a sentence, our standard of
     review is plenary and is limited to determining whether the trial
     court erred as a matter of law.

Commonwealth v. Borovichka, 18 A.3d 1242, 1254 n.8 (Pa. Super. 2011)

(internal citations and quotation marks omitted). “[T]he determination as to

whether the trial court imposed an illegal sentence is a question of law; our

standard of review in cases dealing with questions of law is plenary.”

Commonwealth v. Williams, 868 A.2d 529, 532 (Pa. Super. 2005), appeal

denied, 890 A.2d 1059 (Pa. 2005).

     “A state law violates the ex post facto clause if it was adopted after the

complaining party committed the criminal acts and ‘inflicts a greater


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punishment than the law annexed to the crime, when committed.’”

Commonwealth v. Wall, 867 A.2d 578, 580 (Pa. Super. 2005), quoting

Commonwealth v. Fleming, 801 A.2d 1234, 1236 (Pa. Super. 2002)); see

also Commonwealth v. Vaughn, 770 A.2d 287, 289 n.2 (Pa. 2001).

      Pertinent   to   this   argument,   Section    3126(b)   “formerly    read:

‘Grading.--Indecent assault under subsection (a)(7) is a misdemeanor of the

first degree. Otherwise, indecent assault is a misdemeanor of the second

degree.’” 18 Pa.C.S. § 3126, Amendment Notes. The statute was amended

on November 23, 2005, effective 60 days later on January 23, 2006 (“the

2005 amendment”).       The 2005 amendment rewrote Subsection (b) to read

as follows:

      (b) Grading. --Indecent assault shall be graded as follows:

      (1) An offense under subsection (a)(1) or (8) is a misdemeanor
      of the second degree.

      (2) An offense under subsection (a)(2), (3), (4), (5) or (6) is a
      misdemeanor of the first degree.

      (3) An offense under subsection (a)(7) is a misdemeanor of the
      first degree unless any of the following apply, in which case it is
      a felony of the third degree:

         (i) It is a second or subsequent offense.

         (ii) There has been a course of conduct of indecent assault
         by the person.

         (iii) The indecent assault was committed by touching the
         complainant’s sexual or intimate parts with sexual or
         intimate parts of the person.




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          (iv) The indecent assault is committed by touching the
          person’s sexual or intimate parts with the complainant’s
          sexual or intimate parts.

18 Pa.C.S. § 3126(b). Therefore, the 2005 amendment inflicted a greater

punishment upon those who committed indecent assault under Subsection

(a)(7) if any of the four exceptions to Subsection (b)(3) applied because it

raised the grading of the offense and consequently, the statutory maximum.

See Wall, supra.

       Here, the record reveals the following: The victim was born in 1997.

She testified Crittenden sexually assaulted her four times. She stated she

believed the first incident occurred in 2004 when she was seven years old

because that was “the earliest [she could] think back to.” N.T., 3/4/2013-

3/5/2013, at 38. The second and third assaults occurred subsequently but

the victim could not recall the date or how old she was at the time. Id. at

39, 44. With respect to the final incident, the victim did remember that it

occurred in 2007 when she was 10 years old and on the morning of her

sister’s birthday party. Id. at 50-51. The jury convicted Crittenden of two

counts of indecent assault. According to the trial court, and based on the

verdict slip,6 the second incident resulted in Crittenden’s conviction of

indecent assault (complainant less than 13 years of age) (third-degree

felony), under 18 Pa.C.S. § 3126(a)(7), and the fourth incident brought

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6
    See Verdict of the Jury, 3/5/2013, at 1-2.



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about his conviction of indecent assault (without the consent of the other

person) (second-degree misdemeanor), under 18 Pa.C.S. § 3126(a)(1).

See Trial Court Opinion, 12/17/2013, at 9.

       Therefore, for the jury to have found that Crittenden committed

indecent assault as third-degree felony, it had to have found that the second

incident of sexual assault took place after January 23, 2006, the date the

2005 amendment went into effect.                The evidence, presented at trial, only

established    that   the    first   incident    happened    in   2004,   prior   to   the

amendment, and the final assault occurred in 2007, after the amendment.

There was no testimony as to when the second incident occurred because

the victim could not recall any specific details regarding when the assault

took place.     Nevertheless, the trial court utilized Subsection (b)(3)(ii) to

increase the grading of the crime, a subsection that may have been

implemented after Crittenden committed the convicted criminal conduct.7

In so doing, the trial court imposed an illegal sentence on Crittenden’s Count

12, indecent assault (person less than 13 years of age) conviction.

Accordingly, we are constrained to remand for re-sentencing.

       We direct the court to amend Crittenden’s sentence to reflect the

difference in grading as Crittenden’s conviction should have been graded as

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7
   Moreover, it bears mentioning the jury made no finding as to whether
there had been a course of conduct of indecent assault by Crittenden
pursuant to Subsection (b)(3)(ii).



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a first-degree misdemeanor. Nevertheless, our resolution of Crittenden’s ex

post facto issue does not upset the trial court’s sentencing scheme as the

parties stipulated that for the purposes of sentencing, the court would

impose a sentence based on an offense gravity score (“OGS”) of five, which

is the same OGS as a first-degree misdemeanor. See Trial Court Opinion,

12/17/2013, at 10.8

       Accordingly, we vacate the judgment of sentence in part.         The

sentence shall be amended to reflect Count 12, indecent assault (person less

than 13 years of age) as a grading of first-degree misdemeanor.         The

remainder of the sentence is affirmed.

       Judgment of sentence affirmed in part, without prejudice to pursue

ineffectiveness claims on collateral review, and vacated in part.      Case

remanded for further proceedings consistent with this memorandum.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2014

____________________________________________


8
   Furthermore, our conclusion renders Crittenden’s jury instruction and
societal opprobrium arguments moot.



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