J-S05036-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                  Appellee                 :
                                           :
                     v.                    :
                                           :
ERIC JAMES STULL,                          :
                                           :
                  Appellant                :     1208 WDA 2017

           Appeal from the Judgment of Sentence April 24, 2017
             in the Court of Common Pleas of Greene County
           Criminal Division at No(s): CP-30-CR-0000198-2016

BEFORE:     OLSON, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED MARCH 29, 2018

      Eric James Stull (Appellant) appeals from the April 24, 2017 judgment

of sentence imposed following a guilty plea to 34 counts of rape of a child, 34

counts of involuntary deviate sexual intercourse (IDSI), 34 counts of unlawful

contact with a minor, and 30 counts of corruption of a minor. We affirm in

part, vacate in part, and remand for proceedings consistent with this

memorandum.

             The charges relate to a child-victim that was abused from
      the age of 1 year 11 months through 11 years 11 months ….
      Factually, [Appellant] was the child-victim’s adoptive father, and
      he repeatedly sexually abused the victim-child over the course of
      over 10 years while simultaneously being married to the victim-
      child’s adoptive mother.

           [Appellant] engaged the child-victim in oral sex, fondling,
      anal intercourse[,] and vaginal intercourse.        [Appellant]
      documented the abuse through photographs and videos, that he
      saved to his computer and other devices. The offenses were only


*Retired Senior Judge assigned to the Superior Court.
J-S05036-18


      discovered as a result of a criminal investigation relating to the
      downloading and sharing of child pornography.

Order, 8/4/2017, at 2-3 (unnumbered).

      Appellant rejected the Commonwealth’s plea offer of 20 to 40 years of

incarceration, and entered an open guilty plea on October 12, 2016.

      Following a hearing on March 17, 2017, Appellant was found to be a

sexually violent predator (SVP). On April 18, 2017, the trial court sentenced

Appellant to an aggregate sentence of 340 to 680 years of incarceration.

Specifically, the trial court sentenced Appellant to:

      -   10 to 20 years of incarceration at each of the 34 counts of rape

          of a child, to be served consecutively to each other;

      -   10 to 20 years of incarceration at each of the 34 counts of IDSI,

          to be served consecutively to each other and concurrently to

          the periods of incarceration imposed for rape of a child; and

      -   10 to 20 years of incarceration at each of the 34 counts of

          unlawful contact with a minor, to be served consecutively to

          each other and concurrently to the periods of incarceration

          imposed for rape of a child and IDSI.

      Appellant timely filed a post-sentence motion and amended motion.

Following a hearing on July 31, 2017, the trial court denied the motions.




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      Appellant timely filed a notice of appeal.1 Appellant raises the following

questions for this Court’s review.

      1. Whether the [trial] court erred in finding that Appellant’s open
         plea was made knowingly, willingly, and voluntarily?

      2. Whether the [trial] abused its discretion in sentencing
         Appellant to 340 years to 680 years of incarceration?

      3. Whether the sentence of 340 years to 680 years of
         incarceration amounts to cruel and unusual punishment with
         regard to Appellant in this case?

      4. Whether the framework under 42 Pa.C.S.[] § 9799.24(e)(3)
         regarding the designation of a convicted defendant as a[n SVP]
         is unconstitutional?

Appellant’s Brief at 12 (reorganized for convenience of disposition; trial court

answers omitted).2

                                       I.

      We first address Appellant’s claim that his open plea was not made

voluntarily.3 Appellant did not seek in his post-sentence motion to withdraw


1 Appellant complied with Pa.R.A.P. 1925(b). The trial court complied with
Pa.R.A.P. 1925(a) by issuing a statement indicating its reliance on its August
4, 2017 order.

2Because we find that Appellant’s designation as an SVP is unconstitutional,
Appellant’s fifth claim that the trial court erred in finding him an SVP is moot,
and we will not address it. See Commonwealth v. T.J.W., 114 A.3d 1098,
1102 (Pa. Super. 2015) (“This Court does not render advisory opinions.”).
3 Appellant additionally argues on appeal that counsel was ineffective for
failing to explain the differences between an open plea and a negotiated plea.
Appellant’s Brief at 34-35. Except for rare circumstances not applicable here,
ineffective assistance of counsel claims can be raised only in Post-Conviction
Relief Act proceedings. Commonwealth v. Grant, 813 A.2d 726, 738 (Pa.
2002)      (“[A]s    a     general    rule,   a   petitioner    should    wait

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his plea as being involuntarily entered. Rather, he sought reinstatement of

the Commonwealth’s plea offer.4 In denying this motion, the trial court found

as follows.

             The [trial] court notes that [Appellant] testified that he did
      not fully appreciate the “generosity” of the Commonwealth in
      offering a sentence of not less than 20 years nor more than 40
      years.    However, upon questioning, the court believes that
      [Appellant] recognized that the entry of an open plea caused him
      to be exposed to a sentence potentially greater than what he
      would have received if he accepted the plea agreement.



to raise claims of ineffective assistance of   trial   counsel   until   collateral
review.”).
4 Appellant also argues on appeal that his plea was involuntary because the
trial court failed to notify Appellant of the correct sentencing ranges.
Appellant’s Brief at 33. Appellant did not raise this claim in his post-sentence
motions. Rather, the trial court sua sponte noted at the July 31, 2017 post-
sentence hearing that it incorrectly advised Appellant at the time of his plea
that his maximum possible sentence for each count of rape of a child was 20
years, when in fact it was 40 years. No further discussion or argument was
presented as to this issue at that time. N.T., 7/31/2017, at 4. Instead,
Appellant did not raise this as a basis to challenge the voluntariness of his plea
until his 1925(b) statement. Appellant’s 1925(b) Statement, 8/25/2017, at 1
(unnumbered).

      [A] request to withdraw a guilty plea on the grounds that it was
      involuntary is one of the claims that must be raised by motion in
      the trial court in order to be reviewed on direct appeal.
      … Moreover, for any claim that was required to be preserved, this
      Court cannot review a legal theory in support of that claim unless
      that particular legal theory was presented to the trial court. Thus,
      even if an appellant did seek to withdraw pleas … in the trial court,
      the appellant cannot support those claims in this Court by
      advancing legal arguments different than the ones that were made
      when the claims were preserved.

Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (citations
omitted). Accordingly, this argument is waived.

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             The court heard testimony [from Appellant] at the post-
      sentence motion hearing and is convinced that [Appellant]
      weighed his options and rejected the plea offer of 20-40 years
      presented by the Commonwealth. [Appellant] testified that he
      knew he would be nearly 70 years old before he would be
      considered for release.

             The court is satisfied that [Appellant] was informed as to the
      plea agreement, that he understood the risks associated with an
      open plea, that he understood the charges, this his plea was
      factually based, and that it was a knowing, voluntary and
      intelligent waiver of his trial rights, and that he understood the
      potential for a sentence in excess of the plea agreement.

                                      ***

            In any event, [Appellant] has acknowledged he does NOT
      wish to withdraw his plea of guilty, he simply seeks a shorter
      sentence or seeks the opportunity to accept the agreement which
      he knowingly rejected, [and] the court DENIES that motion.

Order, 8/4/2017, at 5-7 (unnumbered) (unnecessary capitalization omitted).

      The record demonstrates that at the time of Appellant’s plea, he

acknowledged that he was offered a plea agreement and he was rejecting that

offer. N.T., 10/12/2016, at 3, 9. The trial court and Appellant’s counsel both

conducted thorough oral colloquies, during which counsel asked questions

regarding the rights that Appellant was waiving by pleading guilty, and the

trial court ensured that Appellant’s reported medications did not impede his

ability to understand the proceedings. Id. at 5-10, 16. Appellant completed

a written colloquy with his attorney’s assistance because he was handcuffed,

and he signed that document.        Id. at 10.     Appellant testified that the

underlying conduct was that he “had inappropriate contact with [his]



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daughter.”   Id. at 11.   Appellant corrected the Commonwealth’s mistaken

contention that the “inappropriate contact” began when his daughter was one

month old, and when the attorney for the Commonwealth stated that she

hopes he spends the rest of his life in jail, Appellant responded that her

“personal wishes, ma’am, have no bearing on me outside the law. I will take

whatever punishment I need to. I will abide and won’t argue with the Judge.”

Id. at 12-13.

      The evidence of record clearly demonstrates that Appellant was an

active participant in his plea proceeding and that he understood the

ramifications of entering an open guilty plea. While in hindsight Appellant

made an unwise decision, this Court agrees with the trial court that Appellant

voluntarily rejected the Commonwealth’s plea offer and entered an open guilty

plea, subjecting himself to the discretion of the trial court in fashioning his

sentence.    Accordingly, assuming we have the power to reinstate the

Commonwealth’s plea offer, we see no reason to do so.

                                      II.

      We turn now to Appellant’s claims regarding the discretionary aspects

of his sentence, mindful of the following.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. An appellant challenging
      the discretionary aspects of his sentence must invoke this Court’s
      jurisdiction by satisfying a four-part test:

         We conduct a four-part analysis to determine: (1) whether
         appellant has filed a timely notice of appeal, see Pa.R.A.P.


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         902 and 903; (2) whether the issue was properly preserved
         at sentencing or in a motion to reconsider and modify
         sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s
         brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
         there is a substantial question that the sentence appealed
         from is not appropriate under the Sentencing Code, 42
         Pa.C.S.[] § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some

citations omitted).

      Here, Appellant timely filed a post-sentence motion and notice of appeal,

and included a statement pursuant to Rule 2119(f) in his brief. Thus, he has

satisfied the first three requirements. We now consider whether Appellant has

presented a substantial question for our review.

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825,

828 (Pa. Super. 2007). “A substantial question exists only when the appellant

advances a colorable argument that the sentencing judge’s actions were

either: (1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the sentencing

process.” Griffin, 65 A.3d at 935 (citation and quotation marks omitted).

      In his 2119(f) statement, Appellant presents three arguments: (1) the

consecutive imposition of standard range sentences for an aggregate sentence

of 340 to 680 years of incarceration is excessive because “[i]t amounts to a

life sentence many times over[;]” (2) the trial court “relied on impermissible

factors [(the terms of the rejected plea agreement)] in imposing the


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sentence[;]” and (3) the trial court disregarded Appellant’s “mental health and

need for rehabilitation[.]” Appellant’s Brief at 17, 19, 20-21.

                                       A.

      We begin with Appellant’s first argument.

      Generally, Pennsylvania law affords the sentencing court
      discretion to impose its sentence concurrently or consecutively to
      other sentences being imposed at the same time or to sentences
      already imposed. Any challenge to the exercise of this discretion
      ordinarily does not raise a substantial question. Thus, in our view,
      the key to resolving the preliminary substantial question inquiry
      is whether the decision to sentence consecutively raises the
      aggregate sentence to, what appears upon its face to be, an
      excessive level in light of the criminal conduct at issue in the case.

Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011) (citations and

quotation marks omitted). In Prisk, this Court found that Prisk’s aggregate

sentence of 633 to 1,500 years of incarceration was not excessive in light of

the conduct at issue.

      Although a substantial question appears to exist on the surface,
      we must emphasize that the jury found Appellant guilty of three
      hundred and fourteen (314) separate offenses. These offenses
      stemmed from Appellant’s systematic sexual abuse of his
      stepdaughter, which occurred on an almost daily basis over the
      course of six years. Further, the court did not impose consecutive
      sentences for every count. At the same time, Appellant was not
      entitled to a “volume discount” for his multiple offenses. Based
      upon the foregoing, we will not deem the aggregate sentence as
      excessive in light of the violent criminal conduct at
      issue. Therefore, Appellant’s challenge to the imposition of the
      consecutive sentences as excessive merits no relief.

Id. at 533 (citations omitted).




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       On the other hand, this Court has held that consecutive sentences on

each of 96 counts of possession of child pornography, resulting in an

aggregate sentence of 72 to 192 years of incarceration, was excessive.

       Finding this case to be akin to Commonwealth v. Dodge, 957
       A.2d 1198 (Pa.[ ]Super.[ ]2008)[], a panel of this Court concluded
       the trial court abused its discretion in sentencing Appellant, who
       was at the time of sentencing twenty-five years old, to a virtual
       life sentence under the facts and circumstances of this
       case. Accordingly, while this Court affirmed Appellant’s
       convictions, the panel vacated the original judgment of sentence
       and remanded for resentencing.

Commonwealth v. Austin, 66 A.3d 798, 801 (Pa. Super. 2013) (footnote

and some citations omitted).      On appeal from the imposition of a new

sentence, this Court found that “in light of the criminal conduct at issue, and

the length of the imprisonment, [] the trial court’s imposition of consecutive

sentences on some of the counts, resulting in an aggregate sentence of 35

years to 70 years in prison, does not present a substantial question.” Id. at

809.

       This Court’s decision to reverse the de facto life sentence in Austin is

distinguishable from the decision to affirm the de facto life sentence in Prisk

based on the underlying conduct.       Austin was convicted of 96 counts of

possession of child pornography, whereas Prisk was convicted of 314 counts

pertaining to the systematic sexual abuse of his stepdaughter over six years.

While this Court does not diminish the seriousness of child pornography

crimes, it is beyond peradventure that the criminal conduct at issue in Prisk,



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i.e. subjecting a child to almost daily sexual abuse over the course of six years,

is of a more violent nature. Additionally, this Court found in both cases that

when the trial court did not sentence consecutively on every count, the

resulting aggregate sentence was not excessive.

      Instantly, we find that the underlying criminal conduct of this case is

more akin to Prisk. Here, Appellant pled guilty to 132 counts for conduct

stemming from the systematic sexual abuse of his adopted daughter over the

course of ten years, which included the creation of videos and images

capturing the acts. The trial court sentenced Appellant in the standard range

on 102 of those counts, and did not sentence Appellant consecutively on every

count. Accordingly, we do not find that Appellant’s aggregate sentence was

excessive given the criminal conduct at issue in this case.

                                       B.

      In asserting that the trial court erred in considering the rejected plea

bargain, Appellant raises a substantial question for review in his second

argument    regarding   the   discretionary   aspects   of   sentencing.     See

Commonwealth v. Allen, 24 A.3d 1058, 1064-65 (Pa. Super. 2011)

(citations omitted) (“This Court has recognized that a claim that a sentence is

excessive because the trial court relied on an impermissible factor raises

a substantial question.”). However, there is no evidence of record that the

trial court considered the terms of the rejected plea offer in fashioning

Appellant’s sentence.


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            The [trial] court has acknowledged to the record that the
      court learned of the offer made by the Commonwealth from a
      newspaper article the day after the open plea and prior to
      sentencing. No plea offer was presented to the court[;] had the
      court heard the offer it would have considered all relevant factors
      in determining the appropriateness of the plea.

Order, 8/4/2017, at 6 (unnumbered) (unnecessary capitalization omitted).

Given the complete lack of evidence in the record that the trial court in any

way considered the terms of the plea agreement in fashioning Appellant’s

sentence, we find no abuse of discretion by the trial court.

                                       C.

      Appellant also raises a substantial question for review in his final

argument    regarding    the   discretionary   aspects   of   sentencing.   See

Commonwealth v. Caldwell, 117 A.3d 763, 769–70 (Pa. Super. 2015) (en

banc) (“This Court has also held that an excessive sentence claim—in

conjunction with an assertion that the court failed to consider mitigating

factors—raises a substantial question.”) (citation and internal quotation marks

omitted). Nonetheless, Appellant’s claim ultimately fails. The trial court here

had the benefit of a presentence investigation report and thus is presumed to

have considered all relevant information. See Commonwealth v. Corley,

31 A.3d 293, 298 (Pa. Super. 2011) (holding that “where the sentencing court

imposed a standard-range sentence with the benefit of a pre-sentence report,

we will not consider the sentence excessive.”). Accordingly, we find no abuse

of discretion by the trial court.



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                                     III.

      We now consider Appellant’s claim that his aggregate sentence of 340

to 680 years of incarceration constitutes cruel and unusual punishment. We

review this claim with the following in mind.

      [T]he guarantee against cruel punishment contained in the
      Pennsylvania Constitution, Article 1, Section 13, provides no
      broader protections against cruel and unusual punishment than
      those extended under the Eighth Amendment to the United States
      Constitution. The Eighth Amendment does not require strict
      proportionality    between     the     crime    committed   and
      the sentence imposed; rather, it forbids only extreme sentences
      that are grossly disproportionate to the crime.

      In Commonwealth v. Spells, [] 612 A.2d 458, 462 ([Pa.
      Super. ]1992) (en banc), this Court applied the three-prong test
      for Eighth Amendment proportionality review set forth by the
      United States Supreme Court in Solem v. Helm, 463 U.S. 277[]
      (1983):

            [A] court’s proportionality analysis under the Eighth
            Amendment should be guided by objective criteria,
            including (i) the gravity of the offense and the
            harshness of the penalty; (ii) the sentences imposed
            on other criminals in the same jurisdiction; and (iii)
            the sentences imposed for commission of the same
            crime in other jurisdictions.

      Spells, 612 A.2d at 462 (quoting Solem, 463 U.S. at 292[]).
      However, this Court is not obligated to reach the second and third
      prongs of the Spells test unless a threshold comparison of the
      crime committed and the sentence imposed leads to an inference
      of gross disproportionality.

Commonwealth v. Lankford, 164 A.3d 1250, 1252–53 (Pa. Super. 2017)

(some citations and quotation marks omitted).




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      Appellant does not present an argument as to how the gravity of the

offense and the harshness of the penalty are disproportionate. This Court has

previously noted that “[s]exual crimes against children unmistakably continue

to pose a significant harm to the physical and emotional well-being of children.

Categorically, they remain ‘crimes of great severity.’” Commonwealth v.

Elia, 83 A.3d 254, 269 (Pa. Super. 2013). Appellant was sentenced in the

standard range of his sentencing guidelines to a period of incarceration of 10

to 20 years on each of 34 counts of rape of a child, 34 counts of IDSI, and 34

counts of unlawful contact with a minor. Certainly, these individual sentences

are not disproportionate to the gravity of Appellant engaging in “oral sex,

fondling, anal intercourse[,] and vaginal intercourse” with his adopted child

from the approximate ages of two to twelve years old. Order, 8/4/2017, at 3

(unnumbered).    Because Appellant has not satisfied the first prong of the

Spells test, we need not reach the second and third prongs. Accordingly, we

find that Appellant’s sentence does not constitute cruel and unusual

punishment.5



5  Appellant also argues that his sentence constitutes cruel and unusual
punishment because his aggregate sentence amounts to “a life sentence by
any stretch of the imagination. In so doing, the [trial] court has foreclosed
upon Appellant any opportunity to become a productive member of society
following his incarceration and rehabilitation.”    Appellant’s Brief at 36.
Appellant’s argument that his aggregate sentence constitutes cruel and
unusual punishment because it is a de facto life sentence implicates the
discretion of the trial court to sentence Appellant consecutively. Appellant
raises the same argument within his discretionary-aspects-of-sentencing
claim, Appellant’s Brief at 28, which we addressed at length, supra at 7-10.

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                                      IV.

      Finally, we address Appellant’s claim that his designation as an SVP is

unconstitutional.   During the pendency of this appeal, this Court issued a

ruling on this specific issue in Commonwealth v. Butler, 173 A.3d 1212 (Pa.

Super. 2017).6

      [S]ince our Supreme Court has held that SORNA registration
      requirements are punitive or a criminal penalty to which
      individuals are exposed, then under Apprendi [v. New Jersey,
      530 U.S. 466 (2013)] and Alleyne [v. United States, 570 U.S.
      99 (2013)], a factual finding, such as whether a defendant has a
      “mental abnormality or personality disorder that makes [him or
      her] likely to engage in predatory sexually violent offenses [,]” 42
      Pa.C.S.[] § 9799.12, that increases the length of registration must
      be found beyond a reasonable doubt by the chosen fact-
      finder. S[ubs]ection 9799.24(e)(3) identifies the trial court as the
      finder of fact in all instances and specifies clear and convincing
      evidence as the burden of proof required to designate a convicted
      defendant as an SVP. Such a statutory scheme in the criminal
      context cannot withstand constitutional scrutiny. Accordingly, we
      are constrained to hold that [sub]section 9799.24(e)(3) is
      unconstitutional and [a]ppellant’s judgment of sentence, to the
      extent it required him to register as an SVP for life, was illegal.

Id. at 1217–18.

      Pursuant to Butler, we conclude that the March 20, 2017 order deeming

Appellant an SVP is unconstitutional. Accordingly, we vacate that portion of




6  Appellant acknowledged that he did not raise his Butler claim before the
trial court. Appellant’s Brief at 27. While Appellant raises this claim for the
first time on appeal, we may review it. See, e.g., Butler, 173 A.3d at 1214
(holding that while issues not raised before the trial court are generally waived
for appellate purposes, a challenge to the legality of a sentence need not be
preserved in the trial court in order to be reviewable).


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Appellant’s sentencing order requiring him to register as an SVP for life, and

remand for the trial court to provide him with the appropriate notice of his

registration obligations under 42 Pa.C.S. § 9799.23.

      Portion of Appellant’s sentencing order requiring him to register as an

SVP for life vacated. Judgment of sentence affirmed in all other respects.

Case remanded. Jurisdiction relinquished.7

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 3/29/2018




7 We note that Appellant’s counsel cited an unpublished memorandum in his
brief. See Appellant’s Brief at 36. We remind counsel that this is prohibited,
and refer him to Superior Court Operating Procedure § 65.37(A) regarding
citation to unpublished memoranda.

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