J-A26024-14



                                  2014 PA Super 288



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MATTHEW BRYAN WOLFE

                            Appellant                 No. 1962 MDA 2013


            Appeal from the Judgment of Sentence October 1, 2013
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0005791-2012


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

OPINION BY MUNDY, J.:                             FILED DECEMBER 24, 2014

       Appellant, Matthew Bryan Wolfe, appeals from the October 1, 2013,

aggregate judgment of sentence of ten to 20 years’ imprisonment, imposed

after he was found guilty of two counts of involuntary deviate sexual

intercourse (IDSI), one count of unlawful contact with a minor, four counts

of statutory sexual assault, and one count of corruption of minors. 1     After

careful review, we vacate and remand for resentencing.

       We summarize the relevant factual and procedural background of this

case as follows.        On January 15, 2013, the Commonwealth filed an

information charging Appellant with the above-mentioned offenses, as well
____________________________________________
1
  18 Pa.C.S.A. §§ 3123(a)(7), 6318(a)(1), 3122.1(a)(1), and 6301(a)(1)(i),
respectively.
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as two additional counts of IDSI, and one count each of aggravated indecent

assault and indecent exposure.2 On June 12, 2013, Appellant proceeded to

a two-day jury trial, at the conclusion of which Appellant was found guilty of

two counts of IDSI, one count of unlawful contact with a minor, four counts

of statutory sexual assault, and one count of corruption of minors. The jury

acquitted Appellant of one count each of IDSI and aggravated indecent

assault.    The fourth IDSI count and the indecent exposure count were

dismissed by the trial court.

        On October 1, 2013, the trial court imposed an aggregate sentence of

ten to 20 years’ imprisonment. Relevant to this appeal, Appellant received a

ten-year mandatory minimum sentence for each IDSI count pursuant to 42

Pa.C.S.A. § 9718(a)(1). Appellant did not file a post-sentence motion. On

October 31, 2013, Appellant filed a timely notice of appeal.3

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

              In the context of imposing [a] sentence for otherwise
              consensual oral sex activity between a defendant as
              young as 18 and a complainant between the ages of
              13 and 16, does Pennsylvania’s entire sentencing
              scheme violate [Appellant]’s constitutional rights to
              equal protection of the laws, due process, and the
              right against cruel and unusual punishment because
              it imposes vastly greater sentences for otherwise
              consensual oral sex activity by means of the 10-year


____________________________________________
2
    18 Pa.C.S.A. §§ 3125(a)(8) and 3127(a), respectively.
3
    Appellant and the trial court have complied with Pa.R.A.P. 1925.



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              mandatory provision at 42 Pa.C.S. § 9718 than it
              does for otherwise consensual vaginal sex activity?

Appellant’s Brief at 5.

        At the outset, we note that Appellant’s sole issue on appeal challenges

the constitutionality of the mandatory minimum sentencing provision at

Section 9718.        Appellant avers that Section 9718 violates the Equal

Protection and Due Process Clauses of the Fourteenth Amendment, as well

as the Cruel and Unusual Punishment Clause of the Eighth Amendment.

However, we need not address these arguments, as we conclude that

Appellant’s sentence is illegal on a different basis.

        We begin by noting that a challenge to the legality of the sentence can

never    be   waived    and     may   be     raised   by   this   Court     sua   sponte.

Commonwealth v. Orellana, 86 A.3d 877, 883 n.7 (Pa. Super. 2014)

(citation omitted).     We further note that issues pertaining to the United

States Supreme Court’s decision in Alleyne v. United States, 133 S. Ct.

2151      (2013),    directly    implicate     the    legality    of   the     sentence.

Commonwealth v. Lawrence, --- A.3d ---, 2014 WL 4212715, *6-7 (Pa.

Super. 2014).       With this in mind, we proceed by noting our well-settled

standard of review of questions involving the legality of a sentence.

        “A challenge to the legality of a sentence … may be entertained as long

as the reviewing court has jurisdiction.” Commonwealth v. Borovichka,

18 A.3d 1242, 1254 (Pa. Super. 2011) (citation omitted).                  It is also well-

established that “[i]f no statutory authorization exists for a particular

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J-A26024-14


sentence,   that    sentence    is    illegal    and     subject   to    correction.”

Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super. 2014) (citation

omitted). “An illegal sentence must be vacated.” Id. “Issues relating to the

legality of a sentence are questions of law[.] … Our standard of review over

such   questions   is   de   novo    and   our   scope    of   review   is   plenary.”

Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014) (citations

omitted).

       In this case, Appellant was sentenced under the mandatory minimum

statute at Section 9718, which provides in relevant part, as follows.

            § 9718. Sentences for offenses against infant
            persons

            (a) Mandatory sentence.--

                   (1) A person convicted of the following
                   offenses when the victim is less than 16 years
                   of age shall be sentenced to a mandatory term
                   of imprisonment as follows:

                                           …

                   18 Pa.C.S. § 3123 (relating to involuntary
                   deviate sexual intercourse)--not less than ten
                   years.

                                           …

            (c) Proof at sentencing.--The provisions of this
            section shall not be an element of the crime, and
            notice of the provisions of this section 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. The
            applicability of this section shall be determined at

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J-A26024-14


           sentencing. The court shall consider any evidence
           presented at trial and shall afford the Commonwealth
           and the defendant an opportunity to present any
           necessary additional evidence and shall determine,
           by a preponderance of the evidence, if this section is
           applicable.

                                     …

42 Pa.C.S.A. § 9718.

           In 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.       Alleyne, supra at 2163.
           Alleyne is an extension of the Supreme Court’s line
           of cases beginning with Apprendi v. New Jersey,
           530 U.S. 466 (2000).         In Alleyne, the Court
           overruled Harris v. United States, 536 U.S. 545
           (2002), in which the Court had reached the opposite
           conclusion, explaining that there is no constitutional
           distinction between judicial fact finding which raises
           the minimum sentence and that which raises the
           maximum sentence.

                       It is impossible to dissociate the floor of
                a sentencing range from the penalty affixed to
                the crime. Indeed, criminal statutes have long
                specified both the floor and ceiling of sentence
                ranges, which is evidence that both define the
                legally prescribed penalty.        This historical
                practice allowed those who violated the law to
                know, ex ante, the contours of the penalty that
                the legislature affixed to the crime—and
                comports with the obvious truth that the floor
                of a mandatory range is as relevant to
                wrongdoers as the ceiling.          A fact that
                increases a sentencing floor, thus, forms an
                essential ingredient of the offense.

                      Moreover, it is impossible to dispute that
                facts increasing the legally prescribed floor
                aggravate the punishment. Elevating the low-
                end of a sentencing range heightens the loss of

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J-A26024-14


                 liberty associated with the crime: the
                 defendant’s    expected    punishment     has
                 increased as a result of the narrowed range
                 and the prosecution is empowered, by invoking
                 the mandatory minimum, to require the judge
                 to impose a higher punishment than he might
                 wish.     Why else would Congress link an
                 increased mandatory minimum to a particular
                 aggravating fact other than to heighten the
                 consequences for that behavior? This reality
                 demonstrates that the core crime and the fact
                 triggering the mandatory minimum sentence
                 together constitute a new, aggravated crime,
                 each element of which must be submitted to
                 the jury.

           Alleyne, supra at 2160-2161 (internal quotation marks
           and citations omitted).

Commonwealth v. Miller, --- A.3d ---, 2014 WL 4783558, *4-5 (Pa.

Super. 2014).

     In Commonwealth v. Newman, --- A.3d ---, 2014 WL 4088805 (Pa.

Super. 2014) (en banc), this Court confronted the same type of challenge to

the mandatory minimum sentence found at Section 9712.1, regarding the

proximity between drugs and guns. See id. at *3. Section 9712.1 had the

same format as Section 9718 insofar that one subsection contains the

additional fact that triggers the mandatory penalty, and another subsection

states that this fact shall be found by the trial court by a preponderance of

the evidence at sentencing.   See id., quoting 42 Pa.C.S.A. §§ 9712.1(a),

9712.1(c); 42 Pa.C.S.A. §§ 9718(a), 9718(c).

     The Newman Court first concluded that the defendant’s sentence was

illegal in light of Alleyne and required this Court to vacate and remand for

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J-A26024-14


resentencing. Id. at *10. However, this Court further noted that Alleyne

issues are subject to harmless error analysis but that the Alleyne issue in

Newman was not harmless. Id. at *11-12. Finally, this Court rejected the

Commonwealth’s argument that, if the error was not harmless, the

appropriate remedy would be to remand to the trial court to empanel a

second sentencing jury.           Specifically, in rejecting this argument, the

Newman Court concluded that Section 9712.1 in its entirety must be struck

down as unconstitutional in light of Alleyne, concluding that its subsections

were not severable.4

                    The Commonwealth’s suggestion that we
              remand for a sentencing jury would require this
              court to manufacture whole cloth a replacement
              enforcement mechanism for Section 9712.1; in other
              words, the Commonwealth is asking us to legislate.
              We recognize that in the prosecution of capital cases
              in Pennsylvania, there is a similar, bifurcated process
              where the jury first determines guilt in the trial
              proceeding (the guilt phase) and then weighs
              aggravating and mitigating factors in the sentencing
              proceeding (the penalty phase).          However, this
              mechanism was created by the General Assembly
              and is enshrined in our statutes at 42 Pa.C.S.A.
              § 9711. We find that it is manifestly the province of
              the General Assembly to determine what new
____________________________________________
4
  The author in this case concurred in the result in Newman, disagreeing
with the majority that the subsections of Section 9712.1 could not be
severed and concluding that no special “mechanism” was required to allow a
jury to find the element of the aggravated offense beyond a reasonable
doubt. Id. at *17 (Mundy, J., concurring). The author continues to believe
Newman was wrongly decided on that point; however, it is binding on this
Court and must be applied in a principled manner in all future cases unless
reversed by our Supreme Court.



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J-A26024-14


              procedures must be created in order to impose
              mandatory minimum sentences in Pennsylvania
              following Alleyne. We cannot do so.

Id. at *14.5

        We are also mindful of this Court’s recent decision in Commonwealth

v. Valentine, --- A.3d ---, 2014 WL 4942256 (Pa. Super. 2014).               In

Valentine, the Commonwealth sought to have a mandatory minimum

sentence imposed against the defendant.             The trial court allowed the

Commonwealth to amend the information to include the necessary additional

factual elements required by Alleyne to be found by the jury beyond a

reasonable doubt.6       Id. at *1.     The two questions were submitted to the

jury, and it found the additional elements beyond a reasonable doubt. Id.


____________________________________________
5
  We note the Commonwealth has filed a petition for allowance of appeal
with our Supreme Court in Newman, docketed at 646 MAL 2014. As of the
date of this decision, it is still pending.
6
    In Valentine, the two questions submitted to the jury were as follows.

                   Did the Defendant Jose R. Valentine, visibly
              possess a firearm, whether or not the firearm was
              loaded or functional, that placed [the victim] in
              reasonable fear of serious bodily injury during his
              commission of the above-described robbery offense?

                    Did the Defendant Jose R. Valentine, in whole
              or in part, commit the above-described robbery
              offense at or near a Septa bus stop, or in the
              immediate vicinity of a Septa bus stop?

Valentine, supra at *1 (citation omitted); see also generally 42 Pa.C.S.A.
§§ 9712, 9713.



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J-A26024-14


As a result, the trial court imposed the appropriate mandatory minimum

sentences pursuant to the appropriate statutes. Id.

     Although the trial court seemingly followed Alleyne’s requirements,

the Valentine Court held the trial court was not permitted to allow the jury

to resolve the mandatory minimum questions absent legislative action, in

accordance with Newman.

                 Here, the trial court permitted the jury, on the
           verdict slip, to determine beyond a reasonable doubt
           whether Appellant possessed a firearm that placed
           the victim in fear of immediate serious bodily injury
           in the course of committing a theft for purposes of
           the mandatory minimum sentencing provisions of 42
           Pa.C.S.A. § 9712(a), and whether the crime occurred
           in whole or in part at or near public transportation,
           for purposes of the mandatory minimum sentencing
           provisions of 42 Pa.C.S.A. § 9713(a).        The jury
           responded “yes” to both questions. In presenting
           those questions to the jury, however, we conclude,
           in accordance with Newman, that the trial court
           performed an impermissible legislative function by
           creating a new procedure in an effort to impose the
           mandatory minimum sentences in compliance with
           Alleyne.

                 The trial court erroneously presupposed that
           only Subsections (c) of both 9712 and 9713 (which
           permit a trial judge to enhance the sentence based
           on a preponderance of the evidence standard) were
           unconstitutional     under    Alleyne,     and    that
           Subsections (a) of 9712 and 9713 survived
           constitutional muster.      By asking the jury to
           determine whether the factual prerequisites set forth
           in § 9712(a) and § 9713(a) had been met, the trial
           court effectively determined that the unconstitutional
           provisions of § 9712(c) and § 9713(c) were
           severable. Our decision in Newman however holds
           that the unconstitutional provisions of § 9712(c) and
           § 9713(c) are not severable but “essentially and

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J-A26024-14


            inseparably connected” and that the statutes are
            therefore unconstitutional as a whole. Id. at 13–14.
            (“If Subsection (a) is the predicate arm … then
            Subsection (c) is the enforcement arm. Without
            Subsection (c), there is no mechanism in place to
            determine whether the predicate of Subsection (a)
            has been met.”).

                  Moreover, Newman makes clear that “it is
            manifestly the province of the General Assembly to
            determine what new procedures must be created in
            order to impose mandatory minimum sentences in
            Pennsylvania following Alleyne.” Newman at 14.
            Therefore, the trial court lacked the authority to
            allow the jury to determine the factual predicates of
            §§ 9712 and 9713.        See Newman at 14–15
            (recognizing that several trial courts of this
            Commonwealth have found Section 9712.1 as a
            whole to be no longer workable without legislative
            guidance).

Id. at *8. As a result, this Court vacated Valentine’s judgment of sentence

and remanded for resentencing, without the applicable mandatory minimum

sentences. Id. at *9.

      As noted above, the mandatory minimum statute in this case contains

the same format as the statutes struck down as facially unconstitutional in

Newman and Valentine.             See 42 Pa.C.S.A. §§ 9712(a), 9712(c),

9712.1(a), 9712.1(c), 9713(a), 9713(c), 9718(a), 9718(c).           Following

Newman’s instructions, we are required to conclude that Section 9718 is

also facially unconstitutional.

      We recognize that this specific case is unique insofar that the

additional fact triggering the mandatory sentence is also contained as an

element within the subsection of the IDSI statute under which Appellant was

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J-A26024-14


convicted.    Compare 42 Pa.C.S.A. § 9718(a)(1) (stating, “[a] person

convicted of the following offenses when the victim is less than 16 years

of age shall be sentenced to a mandatory term of imprisonment[]”), with

18 Pa.C.S.A. § 3123(a)(7) (stating that a person is guilty of IDSI if he or she

engages in “deviate sexual intercourse” with a complainant “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[]”) (emphases added).       Therefore, in order to convict Appellant of

IDSI, the Commonwealth was already required to                 prove beyond a

reasonable doubt that the victim was less than 16 years old.

      However, we are not concerned with Appellant’s conviction in this

appeal, only the imposition of the mandatory minimum sentence.                   In

Commonwealth v. Matteson, 96 A.3d 1064 (Pa. Super. 2014), the

defendant was convicted of aggravated indecent assault of a child, which

includes as an element of the offense that the victim is less than 13 years of

age. See 18 Pa.C.S.A. § 3125(b). Matteson was sentenced to a ten-year

mandatory     minimum     under   Section      9718(a)(2),   which   requires   the

imposition of said minimum sentence for certain “offenses when the victim is

less than 13 years of age[.]”        42 Pa.C.S.A. § 9718(a)(2).         This Court

concluded that the trial court did not err under Alleyne in imposing the

mandatory minimum sentence.

                   Here, Matteson was charged with aggravated
             indecent assault of a child, which requires, inter alia,

                                      - 11 -
J-A26024-14


           that the victim is less than 13 years of age. See 18
           Pa.C.S.A. § 3125. The victim testified that she was
           11 years old at the time of the incident. N.T.,
           10/28/13, at 1. The jury received an instruction that
           it was required to find that the victim was less than
           13 years of age. Trial Court Opinion, 3/4/14, at 4.
           Therefore, by finding Matteson guilty of aggravated
           indecent assault of a child beyond a reasonable
           doubt, the jury specifically found the element
           required to impose the mandatory minimum
           sentence. See [Commonwealth v.] Watley, 81
           A.3d [108,] 121 [(Pa. Super. 2013) (en banc)]
           (concluding that the appellant’s mandatory minimum
           sentence under section 9712.1 was not illegal under
           Alleyne because the jury, by virtue of its verdict of
           guilty on the possession of firearms charges,
           rendered a specific finding as to whether the
           appellant possessed the handguns)[, appeal denied,
           95 A.3d 277]. Thus, the requirements of Alleyne
           have been met, and Matteson’s claim is without
           merit.

                 In his second claim, Matteson contends that
           the mandatory minimum provisions of 42 Pa.C.S.A.
           § 9718 are unconstitutional. Brief for Appellant at
           9–10.

                  As noted above, the language that increases a
           defendant’s sentence based on a preponderance of
           the evidence standard in section 9718 has been
           found unconstitutional. See Watley, 81 A.3d at
           117.     However, since the jury found that the
           Commonwealth proved every element of aggravated
           indecent assault of a child beyond a reasonable
           doubt, including a victim under the age of 13, the
           trial court properly imposed the mandatory minimum
           sentence.

Id. at 1066-1067.

     In Valentine, this Court noted the tension between Newman,

Watley, and Matteson. See Valentine, supra at *9 n.4. However, the


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J-A26024-14


Valentine     Court    concluded      that     Newman   controlled   based   on   the

conclusion in Newman that the subsections of the mandatory minimum

statutes in Pennsylvania cannot be severed.             Id.   Based on the above

passage, it appears that the Matteson Court concluded that Section

9718(a)(2) could still be constitutionally applied since the Commonwealth

“proved every element of aggravated indecent assault of a child beyond a

reasonable doubt, including a victim under the age of 13[.]”            Matteson,

supra at 1067.         However, the Matteson Court could not reach that

conclusion, unless it first concluded implicitly that the various subsections of

Section 9718 were severable. Pursuant to this Court’s decision in Newman,

we conclude this is not correct.             In our view, Newman abrogated this

Court’s decision in Matteson.7

       Likewise, in this case, although the jury was required to find that the

victim was less than 16 years of age in order to convict Appellant, we cannot

ignore the binding precedent from an en banc decision of this Court. See

Commonwealth v. Bucknor, 657 A.2d 1005, 1007 n.1 (Pa. Super. 1995)

(stating, “as a three judge panel[,] we are bound by the rulings of a court en

banc[]”), appeal denied, 666 A.2d 1050 (Pa. 1995).            Newman stands for

the proposition that mandatory minimum sentence statutes in Pennsylvania

of this format are void in their entirety.          Newman, supra; Valentine,
____________________________________________
7
   We note that Matteson was filed on July 18, 2014, and Newman was
filed on August 20, 2014.



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J-A26024-14


supra. As Section 9718 is indistinguishable from the statutes struck down

in Newman and Valentine, we are constrained to conclude that Section

9718 is also facially void. As a result, we conclude the trial court erred in

imposing the ten-year mandatory minimum.

      Based on the foregoing, we are compelled to conclude that the trial

court imposed an illegal sentence when it imposed the mandatory minimum

sentence in this case.       Accordingly, we vacate the trial court’s October 1,

2013 judgment of sentence, and the case is remanded for resentencing,

without the application of the Section 9718 mandatory minimum, consistent

with this opinion.

      Judgment of sentence vacated.             Case remanded for resentencing.

Jurisdiction relinquished.

      Judge Jenkins joins the opinion.

      Judge Bowes files a concurring opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/24/2014




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