J-S27039-19

                                   2019 PA Super 231

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GERALD W. POPE                             :
                                               :
                       Appellant               :   No. 1778 WDA 2018

            Appeal from the PCRA Order Entered November 15, 2018
      In the Court of Common Pleas of McKean County Criminal Division at
                        No(s): CP-42-CR-0000531-2013


BEFORE:      OLSON, J., OTT, J., and COLINS*, J.

OPINION BY COLINS, J.:                                    FILED JULY 29, 2019

        Appellant, Gerald W. Pope, appeals from the order that denied his first

petition filed under the Post Conviction Relief Act (PCRA). 1 Upon review, we

conclude that the trial court imposed an illegal sentence as to the unlawful

contact with a minor offense.2 We therefore reverse the PCRA court’s order,

vacate Appellant’s judgment of sentence, and remand for resentencing.

        This Court previously summarized the factual and procedural history of

this appeal as follows:

        K.H., who was born in December 1999, lived with her biological
        mother and her mother’s boyfriend, Appellant, from the time she
        was three years old until she turned thirteen. N.T., 3/24/14, at
        23. In January 2013, K.H. began dating B.V. Id. at 23-24.
        Appellant did not approve of the relationship. Id. at 26.

        K.H. eventually confided in a friend that Appellant told K.H. that
        she would have to perform various sexual acts for Appellant in
____________________________________________


1   42 Pa.C.S. §§ 9541–9546.
2   18 Pa.C.S. § 6318(a)(1).


*    Retired Senior Judge assigned to the Superior Court.
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       order to obtain permission to see her boyfriend. N.T., 3/24/14,
       at 24-25, 26, 41. At trial, K.H. testified that Appellant advised her
       of the following options if she wanted to see her boyfriend or
       friends, and the time that would accordingly be allotted: “He said
       one [hand job] would be for two hours, two would be four and a
       blow job would be the whole day.” Id. at 26. K.H. testified that
       she gave Appellant a “hand job” in January 2013, in order to see
       her boyfriend. Id. at 29. She testified that this occurred after
       school and that she and Appellant were the only two people at
       home at the time. Id. at 29-30. She also testified that after
       performing this act, she was permitted to see her boyfriend, but
       that after two hours with her boyfriend elapsed, Appellant
       proceeded to the boyfriend’s house and, standing outside, texted
       K.H., advising her that it was time to leave. Id. at 35-36.

       K.H. further testified that she subsequently gave Appellant “hand
       jobs” on multiple occasions in order to see her boyfriend. N .T.,
       3/24/14, at 37. K.H. stated that no one else was in the home
       during these occasions that occurred after school. Id. at 37. K.H.
       also testified that on one occasion, Appellant “tried sticking [his
       penis] up my butt.” Id. at 37.

       K.H. testified that the first person she told about these incidents,
       approximately six months after they began, was her friend, E.K.
       N.T., 3/24/14, at 41. Although K.H. did not tell her father about
       these incidents, he indirectly found out after E.K. confided in
       another friend. Id. at 41-42. Upon learning of these assertions,
       K.H.’s father took her to the police station in order to report the
       incidents. Id. at 41-42.

       Appellant was charged with one count of criminal attempt of
       involuntary deviate sexual intercourse [(IDSI)]; one count of
       aggravated [indecent] assault; one count of indecent assault; one
       count of unlawful contact with a minor and one count of corruption
       of minors.[3] Amended Information, 3/21/14, at 1-2. Following a
       jury trial, Appellant was convicted of unlawful contact with a minor
       and corruption of minors. He was found not guilty of the other
       charges.



____________________________________________


3 18 Pa.C.S. §§ 901(a),              3125(a)(8),   3126(a)(8),   6318(a)(1),   and
6301(a)(1)(i), respectively.

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        Appellant was sentenced on August 7, 2014, to a period of
        incarceration of 62-124 months.   He timely appealed on
        September 2, 2014.

Commonwealth v. Pope, No. 1486 WDA 2014, unpublished memorandum

at 1-3 (Pa. Super. filed June 1, 2015).          This Court affirmed Appellant’s

conviction in a June 1, 2015 decision. Id. at 7-10. Appellant did not seek our

Supreme Court’s review of this Court’s decision.

        On January 13, 2016, Appellant filed his first, timely, pro se PCRA

petition. On August 25, 2016, the PCRA court appointed counsel for Appellant

in the PCRA proceedings. Appellant’s first and second appointed counsel both

withdrew from representation of Appellant, and, on April 26, 2017, the PCRA

court appointed Appellant’s current PCRA counsel, John Thomas, Esq. and

granted him leave to file an amended PCRA petition. On August 15, 2017,

Appellant, through his counsel, filed an amended petition alleging that he was

denied effective assistance of counsel by his trial counsel based on his failure

to file a request for a bill of particulars that would have cured deficiencies in

the criminal information. The Commonwealth answered the amended PCRA

petition, and Appellant then filed a motion for leave to amend the PCRA

petition on November 28, 2017 to include an argument that, in the sentencing

order, the trial court erroneously required Appellant to register for life under

the Sex Offender Registration and Notification Act (SORNA)4 when in fact he

should only have been required to register for 25 years as a Tier II offender.


____________________________________________


4   42 Pa.C.S. §§ 9799.10-9799.42.


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The PCRA court granted Appellant leave to amend his PCRA petition on June

20, 2018, and directed the parties file briefs on this additional issue. On July

18, 2018, Appellant filed a second motion for leave to amend the PCRA petition

to include the argument that the trial court incorrectly graded the unlawful

contact with a minor charge as a felony of the first degree. In a July 24, 2018

order, the PCRA court granted Appellant leave to amend and directed further

briefs to be filed on this issue.

      On November 15, 2018, the PCRA court entered an opinion and order

granting in part and denying in part the PCRA petition.       The PCRA court

rejected Appellant’s argument concerning the grading of the unlawful contact

with a minor charge, concluding that Appellant’s trial counsel was not

ineffective for not objecting to the grading of the unlawful contact charge

because he had an objectively reasonable basis for not challenging the grading

on the unlawful contact count. PCRA Court Opinion at 4-7. In addition, the

PCRA court concluded that Appellant’s trial counsel was not ineffective for not

filing a request for a bill of particulars but that Appellant’s SORNA lifetime

registration based on two convictions arising out of the same course of conduct

was inappropriate under Commonwealth v. Lutz-Morrison, 143 A.3d 891

(Pa. 2016), and therefore Appellant could only be subjected to a 25-year

registration period. PCRA Court Opinion at 1-4, 7-8. Appellant filed a timely

appeal of the PCRA court’s order. In his Pa.R.A.P. 1925(b) statement of errors




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complained of on appeal, Appellant solely objected to the PCRA court’s ruling

concerning the grading of the unlawful contact with a minor offense.5

       Appellant presents the following issues for our review:

       I. Whether [Appellant’s] trial counsel, Attorney Hackwelder, was
       ineffective for failing to correct the grading and offense gravity
       score attributed to the offense of Unlawful Contact with Minor, 18
       Pa.C.S.A. §6318(a)(1) at the time of sentencing?

       II. Whether [Appellant’s] appellate counsel, Attorney Bulson, was
       ineffective for failing to argue on appeal that the grading and
       offense gravity score attributed to the offense of Unlawful Contact
       with Minor, 18 Pa.C.S.A. §6318(a)(1) was incorrect?

Appellant’s Brief at 4. Appellant frames these issues as a claims of ineffective

assistance of counsel arising out of his trial and appellate counsels’ failure to

challenge the first-degree felony grading of the unlawful contact with a minor

offense. We conclude that the grading of the unlawful contact offense as a

felony of the first degree was contrary to Section 6318 of the Crimes Code

and relevant case law interpreting that statute and that the sentence imposed

upon    Appellant     for    this   charge     was   consequently   illegal.   See

Commonwealth v. Adams-Smith, ___ A.3d ___, 2019 PA Super 151, *14

(filed May 7, 2019) (challenge to legality of a sentence cannot be waived and

may be raised sua sponte by an appellate court reviewing a ruling on a timely

PCRA petition); Commonwealth v. Weimer, 167 A.3d 78, 83 n.6 (Pa. Super.

2017) (challenge to the proper grading of an offense implicates the legality of

____________________________________________


5Appellant filed his statement of errors complained of on appeal on December
18, 2018. The trial court entered a Rule 1925(a) statement on December 27,
2018.

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the sentence). Therefore, we need not conduct an ineffective assistance of

counsel analysis in this case.

      When reviewing the legality of a sentence, our standard of review is de

novo and our scope of review is plenary. Commonwealth v. Bickerstaff,

204 A.3d 988, 995 (Pa. Super. 2019).         When a sentence lacks statutory

authorization or exceeds the legal parameters prescribed by the applicable

statute, the sentence is illegal and must be vacated, and the appellate court

shall remand the matter for a corrected sentence to be imposed. Id.

      Section 6318 of the Crimes Code, defining the offense of unlawful

contact with a minor, provides as follows:

      (a) Offense defined.--A person commits an offense if he is
      intentionally in contact with a minor, or a law enforcement officer
      acting in the performance of his duties who has assumed the
      identity of a minor, for the purpose of engaging in an activity
      prohibited under any of the following, and either the person
      initiating the contact or the person being contacted is within this
      Commonwealth:

         (1) Any of the offenses enumerated in Chapter 31 (relating
         to sexual offenses).

         (2) Open lewdness as defined in section 5901 (relating to
         open lewdness).

         (3) Prostitution as defined in section 5902 (relating to
         prostitution and related offenses).

         (4) Obscene and other sexual materials and performances
         as defined in section 5903 (relating to obscene and other
         sexual materials and performances).

         (5) Sexual abuse of children as defined in section 6312
         (relating to sexual abuse of children).

         (6) Sexual exploitation of children as defined in section 6320
         (relating to sexual exploitation of children).

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      (b) Grading.--A violation of subsection (a) is:

         (1) an offense of the same grade and degree as the most
         serious underlying offense in subsection (a) for which the
         defendant contacted the minor; or

         (2) a felony of the third degree;

      whichever is greater.

18 Pa.C.S. § 6318(a)-(b).

      In Commonwealth v. Reed, 9 A.3d 1138 (Pa. 2010), our Supreme

Court explained that the offenses listed in Section 6318(a)(1) to (6) are not

predicate offenses for the crime of an unlawful contact with a minor. Id. at

1146. “Rather, a defendant is guilty under [S]ection 6318 if he or she contacts

the minor for the purpose of engaging in the prohibited behaviors criminalized

in Chapter 31” of the Crimes Code or the other offenses set forth in Section

6318(a). Weimer, 167 A.3d at 83 (emphasis in original); see also Reed, 9

A.3d at 1146.     Thus, a defendant need not be convicted of a Section

6318(a)(1) to (6) offense to be found guilty of unlawful contact with a minor,

and in fact need not even be separately charged with the underlying offense.

Reed, 9 A.3d at 1146; Weimer, 167 A.3d at 83.

      Our Supreme Court’s decisions in Reed and Commonwealth v.

Aikens, 168 A.3d 137 (Pa. 2017), and this Court’s decision in Weimer each

addressed the issue presently before us concerning the proper grading of

unlawful contact with a minor offense where a defendant is acquitted of the

underlying offenses under Section 6318(a).      In Reed, the defendant was

charged with attempted unlawful contact with a minor, graded as a first-



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degree felony, along with four statutory Chapter 31 offenses, including two

that were graded as first-degree felonies, one that was graded as a second-

degree   felony,   and   another   that   was   graded   as   a   second-degree

misdemeanor. 9 A.3d at 1141. The defendant was convicted of attempted

unlawful contact with a minor but acquitted of all four of the Chapter 31

offenses; the trial court imposed a sentence on the defendant for the unlawful

contact conviction based on the first-degree felony grading, concluding that

the felony grading for that offense was not contingent on conviction of the

Chapter 31 offenses. Id. at 1141-42. The High Court concluded that, while

the Commonwealth was not required to charge the defendant with the

underlying offenses of Section 6318(a), the fact that he was charged with and

then acquitted of those crimes “cannot be ignored when applying the

appropriate grading under subsection 6318(b).”       Id. at 1147.    The Court

stated that, in light of the fact the defendant was acquitted of each of the

Chapter 31 offenses, it could not countenance a result where “the sentencing

court had to guess which offense [the defendant] sought to commit when he

contacted” the minor. Id. Thus, the Court vacated the defendant’s sentence

and remanded for the sentencing court to apply the default grading under

Section 6318(b). Id. at 1148.

      In Aikens, the defendant was charged with IDSI and unlawful contact

with a minor, both graded as felonies of the first degree. 168 A.3d at 138.

The jury instruction provided that to find the defendant guilty of the unlawful

contact offense “you must find that . . . [the defendant] was intentionally in

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contact with a minor . . . [and] that contact was for the purposes of engaging

in an unlawful act—and in this case, that unlawful act is alleged to be [IDSI].”

Id. The jury convicted the defendant of unlawful contact, but acquitted him

of IDSI. Id. In his appeal challenging the first-degree grading for the unlawful

contact charge, the defendant relied principally on Reed, but the Court

distinguished Reed on the basis that the defendant in that case was charged

with, and acquitted of, multiple Chapter 31 offenses, whereas the jury

instruction in Aikens made clear that there was only one underlying Section

6318(a) offense, relieving the sentencing court of “any guesswork.” Id. at

143-44. The Court concluded that as jurors are presumed to follow the court’s

instructions, the jury necessarily found that the unlawful contact was for the

specific purpose of committing the first-degree offense of IDSI and therefore

the grading of the unlawful contact charge as a first-degree felony was also

proper. Id. at 143, 145.

      Finally, in Weimer, the defendant was charged with unlawful contact

with a minor, graded as a felony of the second degree, along with three

Chapter 31 offenses, but was only convicted of the unlawful contact offense.

167 A.3d at 80, 84. On appeal, the defendant argued that the unlawful contact

conviction should have taken the default grading of a third-degree felony

because the jury instructions did not specify which of the Chapter 31 offenses

the contact related to and the lowest grade of the charged Chapter 31 offenses

was a misdemeanor of the second degree.           Id. at 82-84.     This Court

determined that the lack of specificity in the jury instructions as to the

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underlying Section 6318(a) offense left the trial court to “guess[] what crime

[the defendant] sought to commit when he contacted the minor,” a result that

“is neither permitted or intended under the statute.” Id. at 85. In such a

case where the trial court lacked clarity on the underlying offense and the

lowest possible Section 6318(a) offense was graded lower than the default

grading of a felony of the third degree, we concluded that the default grading

should have been applied. Id.

       In the present matter, Appellant was charged in the criminal information

with three Chapter 31 offenses that would qualify as underlying criminal

conduct for Section 6318(a): attempted IDSI, a felony of the first degree;

aggravated indecent assault, a felony of the second degree; and indecent

assault, a misdemeanor of the second degree.               Amended Criminal

Information, 3/21/14. Appellant’s unlawful contact with a minor count was

also graded as a first-degree felony, and the information did not specify which

of the Section 6318(a) offenses on which the charge was based.6 Id.

       The trial court charged the jury on the unlawful contact count, in

relevant part, as follows:

       To find the Defendant guilty of this offense you must find that
       each of the following three elements have been proven beyond a
       reasonable doubt.
____________________________________________


6The information provided that the contact with the minor victim was “for the
purpose of engaging in a sexual act, to wit: Rape, Statutory Sexual Assault,
IDSI, Institutional Sexual Assault, Aggravated Indecent Assault, Indecent
Exposure, Sexual Intercourse with Animal.” Amended Criminal Information,
3/21/14.

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      First, that the Defendant was intentionally in contact with the
      minor [K.H.]. . . .

      Second, that the contact was for the purpose of engaging in an
      unlawful act – that the unlawful act being Aggravated Indecent
      Assault or Indecent Assault as I’ve already defined to you. . . .

N.T., 3/25/14, at 46. At the conclusion of the instructions, the trial court and

counsel engaged in a side bar discussion regarding whether the jury would be

required to identify on the verdict slip which of the charged underlying

offenses of aggravated indecent assault or indecent assault would serve as

the basis for a finding of guilt as to the unlawful contact charge; the trial court

ultimately concluded that a change to the verdict slip was not necessary. Id.

at 48-51.

      During deliberations, the jury submitted a question regarding whether

a verbal proposition constituted unlawful contact under Section 6318, and the

trial court reiterated to the jury that “a proposition to commit the acts entailed

in Count 2, Aggravated Indecent Assault and Count 3, Indecent Assault, would

constitute Unlawful Contact with a Minor.” Id. at 76. The jury returned a not

guilty verdict as to the attempted IDSI, aggravated indecent assault, and

indecent assault charges, and a guilty verdict as to the unlawful contact with

a minor and corruption of minors charges. Id. at 82. On August 7, 2014, the

trial court sentenced Appellant to 62 to 124 months of incarceration on the

unlawful contact charge, graded by the trial court as a felony of the first

degree. Sentencing Order, 8/7/14.

      Based upon our review, it is readily apparent that the first-degree felony

grade applied to the unlawful contact with a minor offense was in error. While

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Appellant was charged with a first-degree felony – attempted IDSI – which

could serve as a basis for a conviction under Section 6318, the trial court only

instructed the jury to determine whether Appellant contacted the minor victim

to engage in aggravated indecent assault or indecent assault, a second-degree

felony or second-degree misdemeanor, respectively.            Section 6318(b)

provides that the highest grade that could be applied is “the same grade and

degree as the most serious underlying offense in subsection (a),” 18 Pa.C.S.

§ 6318(b)(1), and therefore Appellant’s unlawful contact conviction could not

be graded higher than the second-degree felony grade of the aggravated

indecent assault charge.

      Furthermore, pursuant to Reed and Weimer and in light of the fact that

Appellant was charged with two Chapter 31 offenses and acquitted of both,

the appropriate grading of the unlawful contact offense should have been the

default third-degree felony grade. While the fact of Appellant’s acquittal of

the two underlying offenses does not undermine the unlawful contact

conviction, the acquittal meant that the trial court “had to guess which offense

[Appellant] sought to commit when he contacted” the minor victim. Reed, 9

A.3d at 1147. Reed and Weimer instruct that in such cases where the jury

weighs more than one underlying Section 6318(a) offense when determining

whether a defendant engaged in unlawful contact with a minor and the

defendant is acquitted of all of those offenses, an unlawful contact conviction

should be graded according to the lowest grade of the charged Section

6318(a) offenses or the default third-degree felony grade, whichever is

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greater. Id. at 1147-48; Weimer, 167 A.3d at 85. Thus, Appellant’s unlawful

contact conviction should have been graded as a third-degree felony, and the

maximum sentence that could have lawfully been imposed was seven years

of incarceration. See 18 Pa.C.S. § 1103(3). Appellant’s sentence of 62 to

124 months of incarceration imposed by the trial court on this count was

therefore illegal. Accordingly, we vacate the sentence imposed and remand

this matter for resentencing.   See Weimer, 167 A.3d at 85-86 (vacating

sentence of 5 to 10 years of imprisonment and remanding for resentencing

where unlawful contact offense was erroneously graded as a second-degree

felony and default third-degree felony grade should have applied).

      Order reversed. Judgment of sentence vacated. Case remanded for

resentencing consistent with this opinion. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2019




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