J. S82029/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                                           :
                    v.                     :
                                           :
MATTHEW SCOTT SEXTON,                      :
                                           :
                         APPELLANT         :      No. 888 MDA 2016

                   Appeal from the PCRA Order May 20, 2016
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0001217-2013

BEFORE: OTT, DUBOW AND PLATT,* JJ.

MEMORANDUM BY DUBOW, J.:                             FILED MARCH 07, 2017

        Appellant, Matthew Scott Sexton, appeals from the May 20, 2016

Order denying his first Petition filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.       He challenges the effectiveness of

trial counsel. After careful review, we affirm.

        We summarize the relevant factual and procedural history as follows.

On June 26, 2014, Appellant entered an open guilty plea to two counts of

Involuntary Deviate Sexual Intercourse (“IDSI”), and one count each of

Statutory Sexual Assault, Aggravated Indecent Assault, Endangering the

Welfare of Children, Corruption of Minors, and Indecent Assault1 for his



*
    Retired Senior Judge Assigned to the Superior Court.
1
  18 Pa.C.S. §§ 3123(a)(7), 3122.1(a)(1),            3125(a)(8),   4304(a)(1),
6301(a)(1)(i), and 3126(a)(8), respectively.
J.S82029/16


months-long sexual relationship with a 14-year-old male victim.    The trial

court deferred sentencing pending the completion of a Pre-Sentence

Investigation (“PSI”) and to permit the Sexual Offenders Assessment Board

(“SOAB”) to conduct a Sexually Violent Predator (“SVP”) Assessment.

     On October 22, 2014, the parties returned for sentencing.      On that

day, Appellant and the Commonwealth entered into a modified plea

agreement in which the Commonwealth agreed to waive the then-applicable

mandatory minimum sentences and ask the trial court instead to sentence

Appellant to a minimum sentence within the standard guideline range. 2 In

exchange, Appellant would receive a maximum sentence of 20 years of

imprisonment. The trial court sentenced Appellant to a term of 4-20 years

of imprisonment for one count of IDSI, the very bottom of the standard

range of the sentencing guidelines.    The trial court imposed concurrent

sentences on the remaining charges, for an aggregate term of 4-20 years of

imprisonment.

     Appellant did not file a direct appeal. On March 19, 2015, Appellant

filed a pro se PCRA Petition averring ineffective assistance of counsel. The



2
  At the time of Appellant’s sentencing, a 10-20 year mandatory minimum
sentence applied to Appellant’s IDSI convictions. 42 Pa.C.S. § 9718. In
addition, a 5-10 year mandatory minimum sentence applied to Appellant’s
Aggravated Indecent Assault conviction.     Id. As discussed infra, our
Supreme Court subsequently held that the mandatory minimum sentencing
provisions codified in 42 Pa.C.S. § 9718 are unconstitutional.       See
Commonwealth v. Wolfe, 140 A.3d 651, 660-61 (Pa. 2016).



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PCRA court appointed counsel, and PCRA counsel filed two supplemental

Petitions.3

      On February 22, 2016, the PCRA court held an evidentiary hearing on

Appellant’s Petition. The PCRA court aptly summarized the proceedings as

follows:

      At the PCRA hearing, [Appellant] advanced three grounds in
      support of his claim for collateral relief. He first claimed that his
      Defense Counsel failed to fully inform the [c]ourt of various
      mitigating factors at sentencing.        Second, he charged that
      Defense Counsel should have challenged the constitutionality of
      Section 3123 of the Crimes Code, which defines the offense of
      IDSI.    Third, he complained of Defense Counsel's advice
      regarding his plea agreement.

      At the PCRA hearing, [Appellant] testified that he took full
      responsibility for his conduct. However, he complained that
      Defense Counsel only mentioned, without elaboration, various
      mitigating factors at Sentencing which he had hoped would
      persuade the [c]ourt to impose a mitigated sentence.
      [Appellant] explained that at the time of the offenses[,] he was
      suffering from untreated bipolar disorder and Attention Deficit
      Disorder (“ADD”) and that both conditions impacted his mental
      state.   He acknowledged that Defense Counsel brought his
      mental health problems to the [c]ourt's attention at Sentencing,
      but felt that he should have provided the [c]ourt with a
      description of the manifestations of these disorders which
      affected his thought process at the time he committed these
      offenses.

      [Appellant] admitted that he was uncertain that he had actually
      related any specific information about the effects of these

3
  The procedural history of the instant appeal was made complicated by
ongoing disputes between Appellant and his appointed PCRA counsel. These
disputes necessitated additional hearings and amended filings.    As the
parties are familiar with these details and they are not relevant to our
disposition, we merely summarize the arguments ultimately advanced by
Appellant.



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     conditions to Defense Counsel. However, he insisted that he had
     mentioned them and had requested that Defense Counsel obtain
     his medical records. He acknowledged that Defense Counsel had
     obtained medical records from Philhaven, where [Appellant] had
     been treated for two months, but complained that he never
     obtained records from [Appellant’s] primary care physician.
     [Appellant] explained that those records would have indicated
     his history which included a suicide attempt and mental illness
     dating back to 2007. He had also wanted Defense Counsel to
     call to the [c]ourt's attention that his ADD treatment included
     Adderall, a stimulant which could have caused certain behavioral
     disruptions on top of his bipolar condition.

     [Appellant] also explained that he had voiced concerns regarding
     his IDSI charge to Defense Counsel. He felt that the statutory
     definition of IDSI is discriminatory and prejudicial because it is
     based on the perceived immorality of the act prohibited and is
     prejudicial toward “same-sex pairing that physically cannot have
     the usual kind of sex as defined under the definition of sexual
     intercourse.” [N.T., 2/22/16, at 9]. [Appellant] explained that
     he mentioned that he just “didn’t feel that the laws were right”
     to Defense Counsel before Sentencing and that Defense Counsel
     told him that “the law is the law and that is what they have to go
     by.” [Id.] [Appellant] explained that he had wanted Defense
     Counsel to bring this up to the Court at the time of sentencing in
     the hope that he would receive a lesser sentence. However,
     [Appellant] acknowledged that he never actually expressed this
     desire to Defense Counsel, but only told him that he felt the laws
     were unfair.

     [Appellant] was sentenced in accordance with a plea bargain
     whereby the Commonwealth waived the ten-year mandatory
     minimum sentence then applicable to the IDSI charge in
     exchange for a twenty-year maximum, with the [c]ourt to
     determine his minimum sentence within the standard guideline
     range. [Appellant] testified that he and Defense Counsel had
     discussed the fact that some statutes providing for certain
     mandatory minimum sentences had been struck down and he
     asked whether this might affect his case. He felt that, even
     though the mandatory minimum applicable to his case had been
     waived by the Commonwealth, this issue was still pertinent
     because the Commonwealth was requesting the Court to impose
     the maximum allowable sentence at the tail end in exchange for
     that waiver.   However, after this discussion with Defense


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     Counsel, [Appellant] testified that he “dropped the subject.” [Id.
     at 18.] At the PCRA Hearing, [Appellant] contended that he
     should not have accepted such a plea bargain. He now seeks a
     lesser maximum sentence or dismissal of the IDSI charge.

     On cross-examination, [Appellant] admitted that he could not
     recall actually telling Defense Counsel about his ADD, but noted
     that this condition would have been indicated in the records of
     his primary care physician. When he asked Defense Counsel to
     obtain his medical records, he assumed it would include all of
     them. He knew that he had signed a release only for Philhaven,
     and not for any other provider.          However, he could not
     remember when he realized that only the Philhaven records had
     been requested.        He believes that the [c]ourt would have
     realized that he was not in full control of his actions at the time
     of these offenses and would have “shown mercy” had this
     information been presented. [Id. at 16.] [Appellant] admitted
     that[,] although he was not incarcerated at the time, he did
     nothing to obtain the records on his own.

     . . . [Appellant] also acknowledged that Defense Counsel
     arranged for [Appellant’s] sister to appear in [c]ourt and that his
     mother had written a letter to the Judge prior to Sentencing and
     that both had advised the [c]ourt that this conduct was very out
     of character for [Appellant]. He also acknowledged that Defense
     Counsel had referenced [Appellant’s] marijuana and alcohol use
     during Sentencing.

     [Appellant acknowledged that he did not want to withdraw his
     guilty plea. He also admitted that when the Sentencing Judge
     outlined his plea agreement, including the maximum term of 20
     years of imprisonment, Appellant stated that he understood it
     and wanted to go through with it.]

     Defense Counsel also testified at the PCRA hearing.          He
     explained that he met with [Appellant] thirteen times over the
     course of his representation up to Sentencing. At their initial
     meeting, Defense Counsel asked [Appellant] whether he had
     ever been diagnosed or treated for any mental health issues or
     was taking medication.     [Appellant] had explained that he
     suffered from depression, anxiety, and bipolar disorder and was
     taking medication for depression, but only gave Defense Counsel
     the name of one provider and that person worked at Philhaven.
     The records he had obtained from Philhaven made no reference
     to [Appellant’s] primary care physician.      [Appellant] never


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     identified any other physicians or psychiatrists and Defense
     Counsel could not recall [Appellant] ever requesting that he
     obtain the medical records from his primary care physician.

     Defense Counsel also had [Appellant] evaluated by Dr. Jerome
     Gottlieb to explore the possibility of pursuing a mental health or
     insanity defense. Dr. Gottlieb did recognize the possibility that
     [Appellant] had a personality disorder, suffered from depression,
     and had significant drug and alcohol use. However, he found no
     basis for a mental health or insanity defense as his evaluation
     revealed that [Appellant] was aware of what he was doing at the
     time of the offenses, knew that his conduct was criminal in
     nature, and was competent to assist in his own defense.
     Defense Counsel noted that he had conveyed the information
     regarding [Appellant’s] mental health issues to the [c]ourt.

     Defense Counsel also recalled that [Appellant] had expressed his
     feeling that the IDSI statute discriminated against him because
     he was homosexual. [In particular, Defense Counsel testified
     that Appellant’s claim that he was being discriminated against
     was not in regards to the constitutionality of the statute, but
     “more in reference to the district attorney agreeing or not
     agreeing to waive mandatories or what type of plea it would be.”
     Id. at 37-38.]     However, [Appellant] never asked Defense
     Counsel to take any action to challenge the statute.

     Defense Counsel recalled discussing mandatory minimum
     sentences and advised [Appellant] that there was authority for a
     potential challenge to the mandatory minimum which could be
     imposed on his IDSI charge. However, prior to Sentencing, they
     never discussed the possibility of pursuing any such challenge.

PCRA Court Opinion, filed 5/20/16, at 3-7 (footnote omitted).

     Following the evidentiary hearing, the PCRA court denied Appellant’s

Petition. Appellant timely appealed, and both Appellant and the trial court

complied with Pa.R.A.P. 1925.

     On appeal, Appellant raises the following three issues:

     1. [Defense] Counsel was ineffective for failing to argue
     mitigating factors at sentencing, thus resulting in [Appellant]
     receiving a longer sentence.


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      2. [Appellant] should be granted his PCRA Petition because
      certain sexual acts are not more deviant than other sexual acts,
      and as such, the laws are unconstitutional and [Appellant]
      should not have been charged with Involuntary Deviate Sexual
      Intercourse.

      3. [Defense] Counsel was ineffective for failing to argue that[,]
      at the time of sentencing, Commonwealth v. Wolfe, [106 A.3d
      800 (Pa. Super. 2014)] was being considered by the Court, and
      as such failed to argue that this is a factor that should be
      considered by the [s]entencing [c]ourt when sentencing
      [Appellant’s] maximum sentence.

Amended Pa.R.A.P. 1925(b) Statement.4

      When reviewing the denial of PCRA Petition, “we examine whether the

PCRA court’s determination is supported by the record and free of legal

error.”   Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (citation

and internal quotation marks omitted).    We grant great deference to the

findings of the PCRA court, and these findings will not be disturbed unless

they have no support in the certified record. Commonwealth v. Wilson,

824 A.2d 331, 333 (Pa. Super. 2003). “The scope of review is limited to the

findings of the PCRA court and the evidence of record, viewed in the light



4
  While his appeal was pending, and after Apppellant’s counsel had filed his
Brief, Appellant filed a pro se communication to this Court averring that his
PCRA counsel had failed to include a challenge to his maximum sentence in
the instant appeal, and requesting the appointment of new counsel. We
denied the request for new counsel, but remanded the case for the PCRA
court to conduct a hearing pursuant to Commonwealth v. Grazier, 713
A.2d 81 (Pa. 1998). See Order, filed 11/10/16. On remand, Appellant
elected to proceed with PCRA counsel, and the PCRA court permitted
Appellant to amend his Pa.R.A.P. 1925(b) Statement to include this third
issue. Therefore, although Appellant’s Wolfe claim was not developed in his
Brief to this Court, we decline to find it waived.



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most favorable to the prevailing party at the trial level.” Commonwealth

v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). Moreover, “where

a PCRA court’s credibility determinations are supported by the record, they

are binding on the reviewing court.” Commonwealth v. White, 734 A.2d

374, 381 (Pa. 1999).

      All three of Appellant’s issues contend that trial counsel provided

ineffective assistance to Appellant.      In analyzing claims of ineffective

assistance of counsel, we presume that trial counsel was effective unless the

PCRA petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d

1167, 1177 (Pa. 1999).       In order to succeed on a claim of ineffective

assistance of counsel, Appellant must demonstrate (1) that the underlying

claim is of arguable merit; (2) that counsel’s performance lacked a

reasonable basis; and (3) that the ineffectiveness of counsel caused the

appellant prejudice.   Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa.

2003). Appellant bears the burden of proving each of these elements, and

his “failure to satisfy any prong of the ineffectiveness test requires rejection

of the claim of ineffectiveness.”    Commonwealth v. Daniels, 963 A.2d

409, 419 (Pa. 2009).

      A petitioner cannot prevail on a claim of ineffective assistance of

counsel unless he satisfies the prejudice prong, which requires that he show

that “but for the act or omission in question, the outcome of the proceedings

would have been different.”     Commonwealth v. Washington, 927 A.2d



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586, 594 (Pa. 2007) (citation and internal quotation marks omitted).

Moreover, “[where] the underlying claim lacks arguable merit, counsel

cannot be deemed ineffective for failing to raise it.”   Commonwealth v.

Koehler, 36 A.3d 121, 140 (Pa. 2012).       With this standard in mind, we

address each of Appellant’s claims.

                    Mitigating Factors at Sentencing

      In his first issue, Appellant avers that “[t]rial [c]ounsel should have

brought up several mitigating factors that Appellant feels would have made a

positive influence on the [c]ourt’s sentencing.”     Appellant’s Brief at 10.

Appellant also avers that trial counsel was ineffective for failing to request

and provide to the trial court “copies of Appellant’s medical records to

establish his mental capacity and acknowledge his history of mental illness.”

Id. at 10.

      The Honorable John C. Tylwalk presided over Appellant’s PCRA Petition

as well as his guilty plea and sentencing. In his Opinion denying Appellant’s

PCRA Petition, Judge Tylwalk cataloged the substantial information he

reviewed prior to imposing sentence, including multiple accounts of

Appellant’s ongoing mental health struggles.     The evidence presented at

sentencing included (i) letters and testimony from Appellant’s family arguing

that he was under the influence of substances and not in his right mind; (ii)

argument from trial counsel regarding Appellant’s history of mental health

issues and substance abuse; (iii) a PSI report detailing Appellant’s long



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history of depression as well as the fact that he was off of his psychiatric

medication and abusing substances at the time of the offense; and (iv) the

results of Appellant’s SVP Assessment by they SOAB, which further detailed

his mental health history. PCRA Court Opinion, filed 5/20/16, at 8-10.

      As Judge Tylwalk explained, Appellant’s instant claim fails to satisfy

the prejudice prong as follows:

      We believe that the information before the [trial court] regarding
      [Appellant’s] use of psychiatric medication and the side effects
      which may have affected his ability to “think clearly” was
      sufficient to apprise us of this aspect of his mental condition. We
      also believe that Defense Counsel, the SOAB report, and the PSI
      provided ample information of [sic] [Appellant’s] overall mental
      condition and substance abuse history and that is was
      unnecessary for Defense Counsel to expound on those subjects.

      At the Sentencing hearing, we were advised that [Appellant] had
      agreed to accept a sentence within the standard range with a
      twenty-year maximum in exchange for a waiver of the
      mandatory minimum. The standard range was forty-eight to
      sixty-six months.   Our review of the information before us
      revealed that this was an appropriate sentence and we
      sentenced [Appellant] to the bottom of that standard range.
      [Appellant] has presented nothing to us in this PCRA proceeding
      to persuade us that we would have imposed a lesser sentence
      had Defense Counsel provided anything additional.

Id. at 10.

      After careful review, we conclude that the PCRA court’s conclusions are

supported by the record and free from legal error. Therefore, Appellant is

not entitled to relief on this claim.




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                     Constitutionality of IDSI Statute

      In his second issue, Appellant avers that trial counsel was ineffective

for failing to challenge the constitutionality of the statute defining IDSI on

the grounds that “it’s prejudicial against same-sex pairing[s] . . . .”

Appellant’s Brief at 13.

      The offense of IDSI is defined, in relevant part, as follows:

      (a) Offense defined.—A person commits a felony of the first
      degree when the person engages in deviate sexual intercourse
      with a complainant:

                                  ***

      (7) who is less than 16 years of age and the person is four or
      more years older than the complainant and the complainant and
      person are not married to each other.

18 Pa.C.S. § 3123(a)(7). The term “deviate sexual intercourse” is defined

as “[s]exual intercourse per os or per anus between human beings and any

form of sexual intercourse with an animal.           The term also includes

penetration, however slight, of the genitals or anus of another person with a

foreign object for any purpose other than good faith medical, hygienic[,] or

law enforcement procedures.” 18 Pa.C.S. § 3101.

      This Court addressed a similar challenge to the constitutionality of the

IDSI statute in Commonwealth v. Gautieri, 636 A.2d 1153 (Pa. Super.

1994). There, we concluded that:

      IDSI does not proscribe consensual oral or anal intercourse, but
      rather acts of deviate sexual intercourse that are involuntary.
      This classification does not discriminate against unmarried adults
      (homosexual or otherwise) because the Commonwealth does



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      have a strong interest in preventing people from being forced
      against their will to submit to sexual conduct.

Id. at 1155-56 (citation and internal quotation marks omitted).

      Moreover, as the PCRA court noted, there is nothing in the statute or

the definition of “deviate sexual intercourse” that is discriminatory against

individuals engaged in same-sex relationships.          The statutory definition

applies equally to male and female perpetrators, and whether or not their

victims are of the same sex or the opposite sex.          Appellant is not being

penalized for choosing to engage in a sexual relationship with another male;

he is being penalized for choosing to engage in a sexual relationship with a

14-year-old victim who was legally incapable of consenting to the act.

      As Appellant’s underlying challenge to the constitutionality of the IDSI

statute is without merit, trial counsel cannot be found ineffective for failing

to raise it. Therefore, Appellant is not entitled to relief on this claim.

                       Mandatory Minimum Sentence

      In his final issue, Appellant avers that the trial court erred in denying

his PCRA Petition because he “would’ve wanted [trial counsel] to argue that

the mandatory minimums were being brought under questioning and making

such a deal with that mandatory [maximum] was inappropriate and it

should’ve been left up to [the trial court] as to my sentencing instead of a

deal like that.” N.T., 2/22/16, at 12.

      In a criminal case, defendants are entitled to the effective assistance

of counsel both at trial and during plea negotiations.       Commonwealth v.


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Hickman, 799 A.2d 136, 141 (Pa. Super. 2002). “A defendant is permitted

to withdraw his guilty plea under the PCRA if ineffective assistance of

counsel caused the defendant to enter an involuntary plea of guilty.”

Commonwealth v. Kersteter, 877 A.2d 466, 468 (Pa. Super. 2005).

“Where the defendant enters his plea on the advice of counsel, the

voluntariness of the plea depends on whether counsel’s advice was within

the range of competence demanded of attorneys in criminal cases.”

Hickman, supra at 141 (citation and internal quotation marks omitted).

     The seminal case of Alleyne v. United States, 133 S.Ct. 2151

(2013), held that any fact triggering a mandatory minimum sentence must

first be submitted to a jury and proved beyond a reasonable doubt.                In

Pennsylvania, Alleyne triggered a string of cases finding certain mandatory

minimum sentencing schemes unconstitutional. See, e.g., Commonwealth

v. Hopkins, 117 A.3d 247 (Pa. 2015) (finding mandatory minimum for

Drug-Free School Zones violation unconstitutional).

     At the time Appellant plead guilty and was sentenced on the instant

offenses, certain mandatory minimum sentences applied to sexual offenses

committed against minor victims. Although Commonwealth v. Wolfe, 106

A.3d 800 (Pa. Super. 2014), would soon hold these sentencing statutes are

unconstitutional, it is a well-established principal that counsel may not be

deemed    ineffective   “for   failing   to   anticipate   changes   in   the   law.”

Commonwealth v. Patterson, 143 A.3d 394, 397 (Pa. Super. 2016). In



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spite of this general rule, this Court has held that trial counsel may be found

ineffective for failing to advise a client “about Alleyne’s applicability to his

case.” Id. at 399.

      In Patterson, the petitioner pled guilty to certain drug charges while

Alleyne was still pending in the United States Supreme Court. Id. at 396.

Shortly after Alleyne was decided, the trial court sentenced petitioner

pursuant to a negotiated plea agreement that called for a sentence slightly

below the applicable mandatory minimum.         Id.   In his PCRA Petition, he

averred that he only pled guilty to avoid the mandatory minimum sentence,

and that, had counsel advised him of Alleyne at any point prior to the

imposition of his sentence, he would have withdrawn his guilty plea. Id. at

398-99.    Ultimately, this Court remanded for an evidentiary hearing to

determine “whether counsel did, in fact, fail to advise Appellant about

Alleyne’s applicability to his case.” Id. at 399.

      The facts of the instant case are readily distinguishable from

Patterson and do not entitle Appellant to relief. At the PCRA hearing, both

Appellant and his trial counsel testified that prior to sentencing, Appellant

was well aware of Alleyne, its progeny, and their potential applicability to

his case. Moreover, despite already being aware of this potential challenge

to the applicable mandatory minimums, Appellant testified at sentencing

that he was aware of the terms of the agreement and wished to accept the




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Commonwealth’s offer of a minimum sentence in the standard range and a

maximum sentence of 20 years of incarceration.

      It is clear from the record that trial counsel properly advised Appellant

that he might be able to successfully challenge the constitutionality of the

applicable mandatory minimum sentences.         This advice is well within the

range of competence required and, therefore, Appellant failed to establish

that he is entitled to relief on this claim.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/7/2017




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