J-S45004-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,      IN THE SUPERIOR COURT OF
                                         PENNSYLVANIA
                  Appellee

                      v.

MICHAEL ANDREW NOLL,

                           Appellant                 No. 2035 MDA 2014


           Appeal from the Judgment of Sentence November 4, 2014
             In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0002300-2013

BEFORE: BOWES, WECHT, AND FITZGERALD * JJ.

MEMORANDUM BY BOWES, J:                                FILED JULY 10, 2015

       Michael Andrew Noll appeals from the judgment of sentence of twenty-

five to fifty years imprisonment that was imposed after he was found guilty

by a jury of unlawful contact with a minor, corruption of a minor, and two

counts of indecent assault. We affirm.

       We first outline the trial court’s recitation of the evidence supporting

the jury’s verdict:

              On August 4, 2013, M.R., a fourteen year old female,
       spent the day swimming at the confluence of the Susquehanna
       River and the Conodoguinet Creek, known as the Point, in Enola,
       Cumberland County, with friends. She was wearing a tank top
       and shorts.     Around 4:15 p.m. she was approached by
       Defendant, whom she had seen riding his bike near the river
       earlier in the day.     Defendant approached M.R., introduced
       himself, and asked her if she was from the area. M.R. told
       Defendant that she had lived in the area “for like 14 years.”
       Defendant then asked M.R. if she was 14 years old, to which
       M.R. replied, “yeah.” Defendant testified that he was 47 years
       old at the time. Defendant proceeded to ask M.R. if she knew
*
    Former Justice specially assigned to the Superior Court.
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     where a nearby trail led. She explained that the trail led to the
     arches of a bridge and then forked, with one prong leading to
     Enola and a park. Defendant asked M.R. if she would walk with
     him as far as the arches. She initially refused, but Defendant
     persisted and she eventually acquiesced. . . . However, M.R. only
     agreed to accompany Defendant half way to the arches, where
     there is a camp site.

             When they arrived at the camp site, Defendant sat down,
     wanting to talk with M.R. for a little while. Because she did not
     want to stay long, M.R. told Defendant that she had to be home
     to babysit her sister by 4:30 p.m., even though this was not
     true. After talking for a little while with Defendant, M.R. began
     walking back and Defendant followed. About half way to the
     trailhead, Defendant sat down again and wanted to talk. M.R.
     asked Defendant what time it was, and Defendant, after
     approximately 15 minutes, told her it was 4:50 p.m. M.R. said
     she had to go and that her dad was probably waiting for her.
     Defendant asked her to stay and talk, and she [agreed.] She
     explained at trial that she stayed because she “was probably a
     little bit scared.”

            Defendant began to talk about his penis, telling M.R. how
     big it was. He then began to grab and squeeze “all up and down
     her legs.” M.R. was uncertain whether she told Defendant to
     stop or simply pulled away from him. Defendant also touched
     underneath her breasts, the sides of her breasts, and swiped his
     hand across her breasts, all over her clothes, and lifted up her
     shirt and touched her stomach. Defendant asked M.R. to turn
     around, which she did, and then squeezed and bit her butt.
     Defendant then told her to put her hands on his bike seat, again
     she complied, and Defendant put his hands on her hips and
     pressed his hips and penis against her. M.R. told Defendant to
     stop, and he did.

           ....

            When M.R. attempted to walk away from Defendant, he
     grabbed her by the arm. She pulled away, and Defendant got
     on his bike, blocked her path, and grabbed her by the arm
     again. M.R. pulled away again and began walking faster. She
     finally made it back to the trailhead where she saw a friend, J.J.,
     fishing. J.J. then walked her home.

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            M.R. told her father and step-mother what had occurred
      and subsequently spoke with [police, who also had been
      dispatched to the area and located and questioned Defendant,
      who did not cooperate.]

Trial Court Opinion, 2/6/15, at 2-5 (footnotes omitted).

      Based upon this evidence, on January 29, 2014, a jury found Appellant

guilty of unlawful contact with a minor, corruption of a minor, indecent

assault (lack of consent), and indecent assault (complainant under the age

of sixteen and defendant more than four years older).         Appellant was

adjudged a sexually violent predator at a hearing conducted on October 30,

2014. The matter proceeded to sentencing, where Appellant was sentenced

as a recidivist to twenty-five to fifty years incarceration; concurrent

sentences were imposed on each crime.        Appellant also was fined $100.

This appeal followed denial of post-trial motions.    Appellant raised these

positions on appeal:

      I. Whether 42 Pa. C.S. § 9718.2, which requires a 25 to 50 year
      mandatory minimum sentence and which is written in virtually
      the same language-as-other unconstitutional sentencing statutes,
      violates due process and sixth amendment protections as set
      forth in Alleyne and its progeny.

      II. Whether the court violated 42 PA. C.S. § 9726 in imposing a
      fine on a 49-year-old man currently serving a 25 to 50 year
      sentence of incarceration failing to consider the length of
      incarceration and concluding the fine was especially adapted to
      deterring the crime or aid correction of the defendant.

      III. Whether convictions for unlawful contact with a minor, 18 PA.
      C.S. § 6318, and indecent assault under 18 PA. C.S. § 3126(a)(1)
      and (a)(8) merge for sentencing purposes as the statutory

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      elements of those offenses are included in statutory elements of
      the other and arise from a single criminal act.

Appellant’s brief at 7.

      Appellant’s first position is that 42 Pa.C.S. § 9718.2, which outlines

sentences for sexual offenders, is unconstitutional under Alleyne v. United

States, 133 S.Ct. 2151 (2013). A “challenge to a sentence premised upon

Alleyne . . . implicates the legality of the sentence[.]” Commonwealth v.

Newman, 99 A.3d 86, 90 (Pa.Super. 2014). An issue relating to the legality

of a sentence is a question of law. Therefore, “our standard of review is de

novo and our scope of review is plenary.” Commonwealth v. Melius 100

A.3d 682, 684 (Pa.Super. 2014).

      In this case, Appellant was sentenced under § 9718.2(a)(1) (emphasis

added), which provides:

      (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. Upon such conviction, the court
      shall give the person oral and written notice of the penalties
      under paragraph (2) for a third conviction. Failure to provide
      such notice shall not render the offender ineligible to be
      sentenced under paragraph (2).




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That section further states that the fact of a prior offense is not an element

of the crime and its applicability shall be determined at sentencing by the

sentencing court. 18 Pa.C.S. § 9718.2(c).

      Thus, the statute in question is a recidivist provision.   In this case,

Appellant was sentenced under its provisions due to his prior conviction of a

sexual offense. Appellant suggests that the statute is constitutionally infirm

under the decision in Alleyne. Therein, the United States Supreme Court

held the existence of any fact that is necessary to apply a mandatory

minimum sentencing provision is an element of the crime rather than a

sentencing factor and must be presented to the jury and established beyond

a reasonable doubt.    Alleyne applied the Court’s holding in Apprendi v.

New Jersey, 530 U.S. 466 (2000), which held that the defendant’s

constitutional right to a jury trial attaches to any fact, other than a prior

conviction, that increases the maximum sentence. Apprendi thus left intact

the Court’s prior decision in Almendarez–Torres v. United States, 523

U.S. 224 (1998), which rejected the proposition that the fact of a prior

conviction constitutes an element of a crime and held that, instead, whether

a person has been previously convicted of a crime is a sentencing factor.

      We have specifically ruled that the Alleyne decision does not apply to

any statute imposing a mandatory minimum based upon the existence of a

prior conviction. Commonwealth v. Miller, 102 A.3d 988, 995 n. 5

(Pa.Super. 2014) (holding that there was no Alleyne violation where the

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increase in the defendant’s minimum sentence was “based on the fact of

prior convictions[.]”); see also Commonwealth v. Valentine, 101 A.3d

801, 804 n. 2 (Pa.Super. 2014) (citation omitted; emphasis added) (“The

Alleyne      decision      renders    those     Pennsylvania    mandatory   minimum

sentencing      statutes   that      do   not    pertain   to    prior   convictions

constitutionally infirm insofar as they permit a judge to automatically

increase a defendant's sentence based on a preponderance of the evidence

standard.”); see also Commonwealth v. Watley, 81 A.3d 108 (Pa.Super.

2013) (en banc). In this case, Appellant’s increased sentence was premised

upon the fact of a prior conviction, and his invocation of Alleyne therefore

fails.

         Appellant next challenges the court’s imposition of a $100.00 fine

under 42 Pa.C.S. § 9726(c), which provides, “The court shall not sentence a

defendant to pay a fine unless it appears of record that: (1) the defendant is

or will be able to pay the fine and (2) the fine will not prevent the defendant

from making restitution or reparation to the victim of the crime.” Appellant

maintains that, in light of the length of his sentence and age, there is no

record evidence that he will be able to pay the fine in question.

         This position “raises a question of statutory interpretation, which is

likewise a question of law, triggering the same scope and standard of review

as that involving the legality of a sentence.” Melius, supra at 684. As we

have noted, “[I]mposition of a fine is not precluded merely because the

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defendant cannot pay the fine immediately or because he cannot do so

without difficulty." Commonwealth v. Thomas, 879 A.2d 246, 264 (Pa.

Super. 2005).

     In the present case, the fine was miniscule and prison employment will

be available to Appellant, who is not disabled.     Moreover, the court had a

presentence investigation report. Based upon the contents of that report, it

“determined that Defendant will be able to pay the $100 fine imposed at

Count 5, even if not immediately or without difficulty. We note that we did

not impose any other fines on Defendant and there is no restitution due at

this docket.”    Trial Court Opinion, 2/5/15, at 12.               As the court’s

determination that Appellant had the financial resources to pay the $100 fine

was premised upon the contents of the pre-sentence report, we affirm.

Commonwealth v. Boyd, 73 A.3d 1269, 1273 (Pa.Super. 2013) (where

court had the benefit of a pre-sentence investigation containing information

about defendant’s educational history, employment history, and existing

assets, the PSI “provided the sentencing court with an evidentiary basis

upon which to impose a fine.”).

     Appellant’s final averment is that indecent assault and unlawful contact

with a minor should have merged for sentencing purposes.             The issue of

whether   offenses   merge   relates    to   the   legality   of   the   sentence.

Commonwealth v. Jackson, 111 A.3d 1187 (Pa.Super. 2015).                 Thus, as

with Appellant’s first two averments, our standard of review is de novo and

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our scope of review is plenary. Pursuant to 42 Pa.C.S. § 9765, “No crimes

shall merge for sentencing purposes unless the crimes arise from a single

criminal act and all of the statutory elements of one offense are included in

the statutory elements of the other offense.”

       In Commonwealth v. Evans, 901 A.2d 528, 536 (Pa.Super. 2006),

we specifically held that indecent assault and unlawful contact with a minor

did not merge for sentencing purposes since the offenses contain different

elements.     Additionally, the convictions herein were supported by discrete

criminal acts.      Appellant touched M.R.'s breasts, squeezed and bit her

buttocks, and pressed his penis against M.R. while standing behind her. We

therefore reject Appellant’s merger position.

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/10/2015




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