J-S01004-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
JOHN R. JAE,                               :
                                           :
                   Appellant               :          No. 1698 WDA 2013

        Appeal from the Judgment of Sentence entered on July 12, 2012
              in the Court of Common Pleas of Allegheny County,
                 Criminal Division, No. CP-02-CR-0015145-2011

BEFORE: GANTMAN, P.J., JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED MARCH 23, 2015

        John R. Jae (“Jae”), pro se, appeals from the judgment of sentence

imposed following his conviction of one count of possession of child

pornography.1 We vacate the judgment of sentence, and remand for further

proceedings.

        On April 25, 2012, Jae, represented by private counsel, pled guilty to

one count of possession of child pornography, a felony of the third degree.

In exchange for his open guilty plea, the Commonwealth agreed to waive

any mandatory sentences triggered as a consequence of his plea.2 On July



1
    See 18 Pa.C.S.A. § 6312(d).

2
 Because the plea resulted in Jae’s third conviction for a sexual offense, he
was subject to a mandatory lifetime prison sentence pursuant to 42
Pa.C.S.A. § 9718.2(a)(2). If this had been Jae’s second conviction for a
sexual offense, he would have been subject to a mandatory 25-year prison
sentence pursuant to 42 Pa.C.S.A. § 9718.2(a)(1).
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12, 2012, the sentencing court sentenced Jae to serve three to twenty-five

years in prison, followed by ten years of probation. The sentencing Order,

entered on that same date, specified that “[Jae] is to pay all applicable fees

and costs[.]”3    Order of Sentence, 7/12/12, at 1.      Jae did not file a post-

sentence motion or a direct appeal.

        On June 30, 2013, Jae, pro se, filed a Petition for relief pursuant to the

Post Conviction Relief Act (“PCRA”),4 requesting that his post-sentence and

appellate rights be reinstated, and that he be permitted to represent himself.

On July 24, 2013, Jae’s PCRA Petition was granted, and standby counsel was

appointed. Thereafter, Jae, pro se, filed a post-sentence Motion, which the

trial court denied on October 1, 2013. Jae, pro se, timely filed a Notice of

Appeal and a court-ordered Concise Statement of Matters Complained of on

Appeal.5

        On appeal, Jae raises the following issues for our review:

        1. Did the sentencing judge abuse her discretion and commit
           egregious, prejudicial and reversible error[,] and deny [Jae]
           due process of the law in violation of the Fourteenth

3
  The sentencing court also entered a Court Commitment Order, which
specified that costs in the amount of $822.77 would be imposed on Jae.
See Court Commitment Order, 7/12/12, at 1, 3.             Thereafter, the
Department of Court Records assessed fees against Jae in the amount of
$744.50, resulting in a total assessment in the amount of $1,567.27. See
Itemized Account, 7/27/12, at 1-2.

4
    See 42 Pa.C.S.A. §§ 9541-9546.
5
 Resolution of this matter on appeal has been significantly delayed by the
volume of pro se motions, applications, and petitions filed by Jae, including
several requests for extensions of time.

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        Amendment of the U.S. Constitution[,] by imposing a prison
        sentence upon [Jae,] which was excessive and greater than
        that allowed by [] the sentencing guidelines [] for a felony 3
        criminal?

     2. Did the sentencing judge abuse her discretion by sentencing
        [Jae] to pay costs in this criminal case without first inquiring
        as to his ability to pay such costs?

     3. [D]id the sentencing judge abuse her discretion and commit
        egregious, prejudicial and reversible error[,] and deny [Jae]
        due process of the law in violation of the Fourteenth
        Amendment of the U.S. Constitution at sentencing[,] by
        nearly exclusively focusing upon the need to punish[,] and
        ignore [sic] [Jae’s] rehabilitative and mental health and
        medical needs[,] and impose [sic] too harsh of a prison
        sentence upon [Jae]?

     4. Did the sentencing judge abuse her discretion by not placing
        on the record[,] in open court[,] a contemporaneous
        statement of reasons in support of her sentence[,] as
        required by law?

Brief for Appellant at 7 (unnumbered, capitalization and emphasis omitted,

issues renumbered for ease of disposition).

     Upon entry of a voluntary guilty plea, a defendant waives all claims

and defenses other than those sounding in the jurisdiction of the court, the

validity of the plea, and what has been termed the “legality” of the sentence

imposed. Commonwealth v. Eisenberg, 98 A.3d 1268, 1276 (Pa. 2014).

Legality of sentence issues occur generally either (1) when a trial court’s

traditional authority to use discretion in the act of sentencing is somehow

affected; and/or (2) when the sentence imposed is patently inconsistent with

the sentencing parameters set forth by the General Assembly.               See

Commonwealth v. Foster, 17 A.3d 332, 342 (Pa. 2011).


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      Here, in each of his claims on appeal, Jae has phrased the issue as one

involving the sentencing court’s exercise of discretion, rather than the

legality of his sentence. However, notwithstanding the manner in which Jae

phrased his claims, his first and second issues implicate the legality of his

sentence.   See Commonwealth v. Bradley, 834 A.2d 1127, 1131 (Pa.

2003) (stating that a claim that a sentence exceeds the statutory limits

constitutes a challenge to the legality of the sentence); Commonwealth v.

Lipinski, 841 A.2d 537, 539 (Pa. Super. 2004) (stating that “[i]f no

statutory authorization exists for a particular sentence, that sentence is

illegal and subject to correction.”); Commonwealth v. Childs, 63 A.3d

323, 325 (Pa. Super. 2013) (stating that a claim contesting the authority of

the sentencing court to impose fees and costs constitutes a challenge to the

legality of the sentence).6

      The question of whether a claim implicates the legality of a sentence

presents a pure question of law. See id. at 340 n.13. Issues relating to the

legality of a sentence are reviewed de novo, and our scope of review is

plenary. Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013).

      In his first issue, Jae contends that his sentence is illegal because it

exceeds the maximum sentence permitted by 18 Pa.C.S.A. § 1103(3).7 Brief


6
 In his Reply brief, Jae concedes that his second issue constitutes a legal
challenge to his sentence. See Reply Brief for Appellant at 4, 8.

7
 Section 1103(3) provides that a prison term for a felony of the third degree
shall not exceed seven years.

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for Appellant at 2.   Jae argues that, because he agreed to plead guilty in

exchange for the Commonwealth’s waiver of the mandatory sentences

provided by 42 Pa.C.S.A. § 9718.2(a)(1) and (2), the sentencing judge

abused her discretion by imposing a sentence of three to twenty-five years

in prison, followed by ten years of probation. Brief for Appellant at 5. Jae

contends that, once the Commonwealth waived these mandatory sentences,

the sentencing court could not impose a sentence greater than seven years,

pursuant to 18 Pa.C.S.A. § 1103(3). Brief for Appellant at 4-5.

      The     Sentencing   Code    contains   recidivist   provisions   requiring

mandatory sentences for persons convicted of various offenses.           Section

9718.2(a)(2) sets a mandatory minimum term of life imprisonment if the

defendant is convicted of one of several enumerated sexual offenses, and

the defendant had previously been convicted of two or more such offenses.

Section 9718.2 provides, in pertinent part, as follows:

      9718.2. Sentences for sexual offenders.

        (a)   Mandatory sentence.
                                     ***
            (2) Where the person had at the time of the commission of
                the current offense previously been convicted of two or
                more     offenses   arising  from   separate      criminal
                transactions set forth in section 9795.1 or equivalent
                crimes under the laws of this Commonwealth in effect
                at the time of the commission of the offense or
                equivalent crimes in another jurisdiction, the person
                shall be sentenced to a term of life imprisonment,
                notwithstanding any other provision of this title or other
                statute to the contrary. …



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42 Pa.C.S.A. § 9718.2(a)(2) (effective until December 20, 2012).8

     Nevertheless, section 9718.2(c) contains a notice provision, which

requires the Commonwealth to provide notice of its intention to pursue the

applicable mandatory minimum sentence:

      (c)    Proof of sentencing. --The provisions of this section
     shall not be an element of the crime, and notice thereof to the
     defendant shall not be required prior to conviction, but
     reasonable notice of the Commonwealth's intention to
     proceed under this section shall be provided after
     conviction and before sentencing. …

42 Pa.C.S.A. § 9718.2(c) (effective until December 20, 2012) (emphasis

added).

     Here, there is no dispute that Jae had been convicted of two or more

sexual offenses under section 9795.1 prior to his guilty plea to possession of

child pornography. Nor is there any dispute that, at the time of sentencing,

Jae was subject to the mandatory sentencing provisions of section

9718.2(a)(2).    Nevertheless, in exchange for Jae’s guilty plea, the

Commonwealth agreed not to proceed under the mandatory sentencing

provisions of section 9718.2. See Commonwealth v. Pittman, 528 A.2d

138, 141-42 (Pa. 1987) (holding that a prosecutor may elect not to seek a

mandatory minimum sentence).




8
 This version of the statute was in effect when Jae committed his offense,
pled guilty and was sentenced. Section 9795.1 (registration of sexual
offenders) required registration by individuals who had been convicted of
enumerated sexual offenses, including possession of child pornography.



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      When, as is this case, the Commonwealth agrees to waive the

mandatory minimum sentence, the sentencing court does not have the duty,

or even the ability, to apply the mandatory minimum sentence.             See

Commonwealth v. Mazzetti, 44 A.3d 58, 65 (Pa. 2012). Accordingly, the

sentencing court’s authority was limited by section 1103(3), which provides

that, for “a felony of the third degree,” the sentencing court shall sentence

the defendant to “a term which shall be fixed by the court at not more than

seven years.”    18 Pa.C.S.A. § 1103(3).      Because the sentencing court

sentenced Jae to a prison term of three to twenty-five years, the sentence is

illegal and must be vacated. On remand, the sentencing court is directed to

impose a sentence that does not exceed the statutory maximum for a third

degree felony, as provided by section 1103(3).

      Because we vacate the judgment of sentence, we need not address

Jae’s remaining issues.9

      Judgment    of   sentence   vacated.     Case   remanded    for   further

proceedings consistent with this Memorandum. Jurisdiction relinquished.




9
  If we had addressed Jae’s second issue, we would have determined that it
lacks merit. See Buck v. Beard, 879 A.2d 157, 161 (Pa. 2005) (holding
that a sentencing hearing provides all the process required before
deductions are made from an inmate account); see also Childs, 63 A.3d at
326 (holding that, pursuant to Pa.R.Crim.P. 706, a pre-sentencing hearing
regarding the defendant’s ability to pay is only required prior to the entry of
an order directing his imprisonment for failure to pay the ordered costs).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/23/2015




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