J-S29044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                    v.                      :
                                            :
RAYMOND ALLEN MATTESON                      :
                                            :
                          Appellant         :
                                            :     No. 1911 WDA 2015

                 Appeal from the PCRA Order November 16, 2015
        in the Court of Common Pleas of Fayette County Criminal Division
                        at No(s): CP-26-CR-0002051-2013

BEFORE: BENDER, P.J.E., PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED MAY 10, 2016

        Appellant, Raymond Allen Matteson, appeals from the order entered in

the Fayette County Court of Common Pleas denying his first petition filed

pursuant to the Post Conviction Relief Act1 (“PCRA”).      Appellant claims his

sentence is illegal in light of Alleyne v. United States, 133 S. Ct. 2151

(2013). We affirm.

        We summarize the relevant procedural history as follows. On May 6,

2014, a jury found Appellant guilty of aggravated assault,2 simple assault,3




*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 2702(a)(1).
3
    18 Pa.C.S. § 2701(a)(1).
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endangering the welfare of children (“EWOC”),4 and recklessly endangering

another person (“REAP”)5 stemming from his physical abuse of a twenty-

month-old child (“Victim”) in his care. On May 8, 2014, the Commonwealth

filed a notice of its intention to seek the mandatory minimum sentence at 42

Pa.C.S. § 9718(a)(2). Commonwealth’s Sentencing Notice, 5/8/14. Section

9718(a)(2) provided, in relevant part, that a person convicted of aggravated

assault    under 18 Pa.C.S. § 2702(a)(1) “when the victim is less than 13

years of age shall be sentenced to a mandatory term of imprisonment” of

not less than five years. 42 Pa.C.S. § 9718(a)(2).

        The trial court held a sentencing hearing on May 12, 2014.      The

Commonwealth asked the trial court to “depart from the guidelines.      And

impose a statutory maximum sentence of ten to twenty years” for

aggravated assault. N.T. Sentencing Hr’g, 5/12/14, at 8. Before imposing

the sentence, the trial court addressed Appellant:

                [Y]ou were taken into this child’s home by his
             mother, with whom you had a relationship. In that
             home, you became a child abuser and batterer, and
             preyed upon [Victim] who at that time, in September
             and October, was nineteen or twenty months old. . .
             . While my heart, soul, my very being are each filled
             with compassion, pity, sympathy and heartbreak, not
             even one iota of that is for you. Every single bit of it
             is for [Victim], your victim, this child that you have
             battered and abused. Each day during your trial, I
             passed by this child as he sat in his wheelchair in the

4
    18 Pa.C.S. § 4304(a)(1).
5
    18 Pa.C.S. § 2705.



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           hallway, and witnessed the damage that you caused
           to him and to his life. And how your depraved acts
           will impact upon him in the years to come. We can
           only hope and pray that he will receive whatever
           help, support and love necessary to enable him to
           live as normal a life as possible as he recovers from
           the injuries caused by you. Because of you, he
           apparently will be unable to enjoy the quality of life
           of others. Not only at this age but in the future. You
           have robbed him of that hope and that life and that
           future.    Your prior record which includes prior
           Protection from Abuse violations, two prior simple
           assault convictions, and an Indirect Criminal
           Contempt, which I assume was from a violation of a
           Protection from Abuse Order, shows this [c]ourt that
           you are, and have been, an abuser. While this
           [c]ourt cannot undo what you have done, or change,
           alter, remove whatever evil abherrations [sic]
           permeate your body, your thoughts and your soul,
           we certainly can remove you from society, thereby
           denying your access to other children and other
           victims. Clearly, your acts show that our community
           needs protection from you, and that can be
           accomplished only by imprisoning you. . . . From the
           evidence adduced at your trial, it is apparent that
           you showed no mercy to [Victim], a child of twenty
           months, helpless and dependent upon you, and we
           will show no mercy to you.

Id. at 11-13.

     The trial court sentenced Appellant to an aggregate term of eleven to

twenty-two years’ imprisonment.     Specifically, on the aggravated assault

charge, the trial court sentenced Appellant to “[u]ndergo imprisonment at a

State Correctional Institute for a period of not less than ten (10) years nor




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more than twenty (20) years under 42 Pa.C.S.[] Section 9718(a)(2).” 6 Trial

Ct. Order, 5/12/14, at 1 (unpaginated).         The trial court explained its

sentence as follows: “As a departure, the [c]ourt, has imposed this sentence

above all sentencing guideline ranges, having done so due to the

serious nature of the offense, the failure of [Appellant] to provide proper

care, and the twenty (20) month old victim being completely at the mercy of

[Appellant].”   Id. at 3 (emphasis added); N.T. at 15.      On the sentencing

guideline form for this offense, the trial court noted the offense gravity score

was eleven, Appellant’s prior record score was one, and that the sentence

fell above the guideline range. See Sentencing Guideline Form, 5/14/14.

         Appellant appealed his judgment of sentence,7 and this Court

affirmed on December 15, 2014. Commonwealth v. Matteson, 861 WDA

2014 (Pa. Super. Dec. 15, 2014) (unpublished memorandum), appeal

denied, 596 WAL 2014 (Pa. Apr. 28, 2015).          The Pennsylvania Supreme

Court denied allowance of appeal on April 28, 2015.

        Appellant filed a timely PCRA petition on July 6, 2015,8 and a

counseled, amended petition on September 17, 2015.          Therein, Appellant


6
  The trial court imposed a term of imprisonment of one to two years for the
EWOC offense consecutive to the aggravated assault sentence and no
further penalty on simple assault and REAP.
7
 Appellant did not challenge the length of his sentence on direct appeal.
See Matteson, 861 WDA 2014 at 6.
8
    See 42 Pa.C.S. § 9545(b)(1).



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argued that the trial court sentenced him on the aggravated assault charge

to “a mandatory minimum” of ten to twenty years’ imprisonment pursuant to

42 Pa.C.S. § 9718(a)(2), based on the age of Victim. Am. Pet., 9/17/15, at

1-2 (unpaginated).     Appellant reasoned that the United States Supreme

Court’s decision in Alleyne and subsequent opinions by this Court applying

Alleyne render his sentence unconstitutional and entitle him to PCRA relief.

Id. at 2-3.    On November 16, 2015, the PCRA court issued an order and

accompanying opinion and denied Appellant’s petition. 9       In denying the

petition, the PCRA court expressly noted it sentenced Appellant to the

statutory maximum sentence and not the mandatory minimum of five years.

PCRA Court Op., 12/16/15, at 2.

      Appellant filed a timely notice of appeal and court-ordered Pa.R.A.P.

1925(b) statement. The trial court filed a responsive Rule 1925(a) opinion,

wherein it explained the imposition of Appellant’s sentence was pursuant to

its discretionary authority in consideration of several factors.    PCRA Court

Op., 12/18/15 at 2-4

                 Instantly, the [c]ourt had the benefit of a pre-
              sentence report and stated on the record in the
              sentencing proceeding that it had taken into
              consideration the nature and seriousness of the
              offenses, and that the victim was a child. [The

9
  The PCRA court scheduled a hearing on Appellant’s petition for November
12, 2015. While there is no indication on the docket of a hearing that day,
the PCRA court order denying Appellant’s petition stated it was denying the
petition “after full hearing, and upon consideration of the record[.]” PCRA
Court Order, 11/16/15.



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             court] also considered the number of offenses to
             which [] Appellant had been found guilty. Further,
             [the court] stated that [it was] imposing a sentence
             above the guideline ranges due to the serious nature
             of the offenses and the failure of Appellant to provide
             proper care to the victim, a twenty month old child
             who was at the mercy of Appellant.

Id.

       On appeal, Appellant raises the following issue for our review.

             Whether the PCRA court erred in holding that
             Appellant’s sentence – for the charge of aggravated
             assault on a child less than thirteen (13) years of
             age, of ten (10) to twenty (20) years[’] incarceration
             – does not constitute an illegal mandatory minimum
             sentence?

Appellant’s Brief at 3.

       Appellant argues the PCRA court erred in denying his petition “because

the [c]ourt believed that the claim was time barred.” Id. at 7. He argues

the trial court specifically sentenced him pursuant to section 9718(a)(2),

which has been declared facially unconstitutional by this Court’s decision in

Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014), appeal

granted, 121 A.3d 433 (Pa. 2015).        Id. at 11-12.    Therefore, Appellant

claims he is subject to an illegal sentence. Id. at 12. We hold no relief is

due.

       Our standard of review over PCRA orders is limited to whether the

findings of the PCRA court are supported by the record and free of legal

error. Commonwealth v. Ruiz, 131 A.3d 54, 57 (Pa. Super. 2015). “The

PCRA court’s findings will not be disturbed unless there is no support for the


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findings in the certified record.” Id. (citation omitted). A challenge to the

legality of a sentence is a question of law. Wolfe, 106 A.3d at 801-02. Our

standard of review is de novo. Id. at 802.

        Aggravated assault under subsection (a)(1) is a first-degree felony.

18 Pa.C.S. § 2702(b). Section 1103 provides that first-degree felonies are

punishable by a term of imprisonment of “not more than 20 years.”            Id.

§ 1103(1).      The standard guideline range for offenses with an offense

gravity score of eleven and a prior record score of one is three and one-half

to five years’ imprisonment.10      See 204 Pa. Code § 303.16(a). “In every

case where a sentencing court imposes a sentence outside of the sentencing

guidelines, the court must provide in open court a contemporaneous

statement of reasons in support of its sentence.”           Commonwealth v.

Bowen, 55 A.3d 1254, 1263-64 (Pa. Super. 2012) (citing 42 Pa.C.S.

§ 9721).

        In Wolfe, the defendant was sentenced to a mandatory minimum

sentence pursuant to Section 9718(a)(1) and challenged his sentence on

direct appeal. Id. at 801. The Wolfe Court explained, “[i]n Alleyne, the

Supreme Court held that ‘facts that increase mandatory minimum sentences

must be submitted to the jury’ and must be found beyond a reasonable

doubt.”     Id. at 802 (discussing Alleyne, 133 S. Ct. at 2163).       The Court



10
     Appellant does not dispute his prior record or offense gravity score.



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then applied this Court’s cases interpreting Alleyne and held “Section 9718

is . . . facially unconstitutional.” Id. at 805.

      In Ruiz, this Court noted that a PCRA petitioner is not entitled to

retroactive application of Alleyne if the petition is untimely or the

petitioner’s judgment of sentence was final before June 13, 2013, the date

of the Alleyne decision.     See Ruiz, 131 A.3d at 58.    However, the Court

held that where a petitioner files a timely PCRA petition and the judgment of

sentence was not final prior to Alleyne, then the petitioner is entitled to its

application. Id. at 59-60.

      Instantly, Appellant’s judgment of sentence was imposed after

Alleyne was decided, and his PCRA petition was timely.        See 42 Pa.C.S.

§ 9545(b)(1). There is no support in the record for Appellant’s contention

that the trial court denied his petition because it concluded it was “time

barred.” See Appellant’s Brief at 7; Ruiz, 131 A.3d at 57. Rather, the PCRA

court explained it dismissed the petition because it did not apply Section

9718 to Appellant. PCRA Ct. Op., 11/16/15, at 2; see also PCRA Ct. Op.,

12/18/15, at 3 (noting the court considered, inter alia, the presentence

investigation report and imposed the sentence “above the sentencing

guideline ranges due to the serious nature of the offenses and the failure of

Appellant to provide proper care to the victim”). While the court referred to

Section 9718 in its sentencing order, it also explicitly stated it wished to

exceed all guideline ranges and sentence Appellant to the statutory



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maximum sentence for aggravated assault based on the seriousness of the

offense and the particular vulnerability of Appellant’s victim. N.T. at 15; see

also Trial Ct. Order, 5/12/14, at 1; PCRA Ct. Op., 11/16/15, at 2; PCRA Ct.

Op., 12/18/15, at 3; accord 18 Pa.C.S. § 1103(1); Bowen, 55 A.3d at

1263-64. The record is replete with the trial court’s rationale in sentencing

Appellant as it did, and we conclude the record supports its decision to deny

Appellant’s petition because it did not impose the sentence pursuant to

Section 9718. See Ruiz a131 A.3d at 57.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/10/2016




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