J-S54003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
          v.                                   :
                                               :
                                               :
LEELAND R. BARNHART                            :
                                               :
                 Appellant                     :   No. 774 WDA 2016

               Appeal from the Judgment of Sentence April 22, 2016
                  In the Court of Common Pleas of Greene County
               Criminal Division at No(s): CP-30-CR-0000485-2011,
                              CP-30-CR-0000487-2011


BEFORE:        OTT, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                FILED DECEMBER 13, 2017

        Leeland R. Barnhart appeals from the judgment of sentence imposed on

April 22, 2016, in the Court of Common Pleas of Greene County, following a

remand from the Superior Court.1               The prior panel affirmed Barnhart’s

convictions on multiple charges, including involuntary deviate sexual

intercourse (IDSI), statutory sexual assault, and aggravated indecent assault

(AIA),2 regarding his involvement with a 15 year-old, female child, R.B.

However, the prior panel vacated Barnhart’s mandatory minimum sentence of
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*   Former Justice specially assigned to the Superior Court.

1  Commonwealth v. Barnhart, 120 A.3d 1057 (Pa. Super. 2015)
(unpublished memorandum), appeal denied, 125 A.3d 1197 (Pa. 2015)
(table).

2   18 Pa.C.S. §§ 3123(a)(7), 3122.1, and 3125(a)(8), respectively.
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10 years for his violation of 18 Pa.C.S. § 3123(a)(7).3 That sentence was

found to have violated Alleyne v. United States, 570 U.S. 99, 133 S.Ct.

2151, 186 L.Ed.2d 314 (2013) and the case was remanded for resentencing.

On April 22, 2016, he was resentenced to an aggregate term of five to ten

years’ incarceration. In this timely appeal, Barnhart raises a number of

challenges to his sentence and a claim that the trial court erred in providing

an improper verdict slip to the jury.            After a thorough review of the

submissions by the parties, relevant law, and the certified record, we affirm.

       The underlying charges in this matter arise from an approximately

three-week period in July and August, 2011, during which Barnhart had

repeated sexual contact with the victim, R.B., a then 15-year old child. The

sexual activity began on July 7, 2011, continued through July 24, 2011, when

R.B. ran away from home to Barnhart’s trailer, and ended upon R.B.’s

discovery at Barnhart’s trailer on August 2, 2011. At the time of the crime,

Barnhart was 35 years old. As noted above, upon conviction, Barnhart was

sentenced to a mandatory minimum ten-year sentence of incarceration for

engaging in oral sex with a person less than 16 years old when he was more

than four years older and they were not married. Barnhart appealed a number

of issues, including a claim that his sentence was unconstitutional in that it

was disproportional as it related to oral sex versus vaginal sex. While that

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3 Regarding IDSI where the complainant is less than 16 years old and the
defendant is four or more years older than the complainant and the two people
are not married.

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allegation was not addressed by the prior panel of our Court, that panel did

determine that the sentence violated Alleyne, supra.              After being

resentenced, this appeal followed.

      Barnhart’s first two claims are related and we will address them

together.    First, Barnhart argues the trial court violated Pa.R.Crim.P.

600(B)(5) by failing to sentence him within 120 days of the case being

remanded to the trial court. Second, he argues the trial court erred in failing

to grant his writ of habeas corpus when it failed to sentence him within the

120 days required by Pa.R.Crim.P. 600(B)(5).

      Rule 600 is commonly referred to as the “speedy trial” rule, and governs

the time the Commonwealth has in which to bring a defendant to trial. Rule

600(B)(5) states:

      (B) Pretrial Incarceration. Except in cases in which the defendant
      is not entitled to release on bail as provided by law, no defendant
      shall be held in pretrial incarceration in excess of …

      (5) 120 days from the date of the written notice from the appellate
      court to the parties that the record was remanded.

Pa.R.Crim.P. 600(B)(5).

      Facially, Rule 600(B)(5) applies to pretrial incarceration following

remand.     Here, Barnhart’s remand was for resentencing only.      Barnhart’s

conviction was affirmed and he was not granted a new trial. This fact is clear

from the memorandum opinion filed in that matter:

      Accordingly, we affirm [Barnhart’s] convictions, but we vacate the
      judgment of sentence and remand for resentencing without
      imposition of mandatory minimum sentences.


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       Judgment of sentence vacated; case remanded for resentencing.
       Jurisdiction relinquished.

Commonwealth           v.   Barnhart,      120   A.3d   1057   (Pa.   Super.   2015)

(unpublished memorandum).

       Because Barnhart’s convictions had not been reversed, he was not

awaiting retrial and, therefore, he was not serving pretrial incarceration. He

was serving post-conviction incarceration.              Barnhart has provided no

authority, other than his assertion, that Rule 600(B)(5) applies to persons

convicted and awaiting resentencing as well as those persons whose

convictions have been vacated and are awaiting retrial.4

       The second aspect of this claim is that the trial court erred in failing to

grant his application for a writ of habeas corpus due to the violation of Rule

600(B)(5). Because there was no violation of Rule 600(B)(5), the trial court

could not have erred in failing to grant the habeas corpus relief sought.

       In his third claim, Barnhart argues the trial court erred in not finding the

sentencing provision regarding sexual offender treatment found at 42 Pa.C.S.

§ 9718.1 unconstitutional and compounding that error by failing to parole

Barnhart immediately. Barnhart’s constitutional claim is based upon Alleyne,

supra, which held that any fact that, by law, increases the penalty for a crime

is an ‘element’ that must be submitted to the jury and found beyond a




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4 Indeed, this Court’s own research produced no results that support
Barnhart’s claim.

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reasonable doubt.       Id. 133 S.Ct. at 2162. See also, Commonwealth v.

Hopkins, 117 A.3d 247, 257 (Pa. 2015) (same).

       Barnhart argues that Section 9718.1 addresses the requirements of any

person, including sexually violent predators, convicted of any of the listed

sexual crimes against minors, to obtain parole. The essence of the argument

is that because the mandatory minimum sentence Barnhart was originally

subjected to was unconstitutional under Alleyne, Section 9718.1 must also

be unconstitutional because there was no determination by a jury of the age

of the victim. According to Barnhart, his right to parole has been denied, or

at least delayed, because he was unable to fulfill the requirements originally,5

and he is not currently eligible for parole even though he has completed almost

the entire five-year minimum sentence he is now serving.




____________________________________________


5 Barnhart argues he was unable to participate in the mandatory classes
because he had not served half his sentence. See Appellant’s Brief at 23-24.
Barnhart has provided no evidence of this allegation. We see nothing in
Section 9718.1 that requires a person serve his minimum sentence prior to
being eligible for mandatory rehabilitation classes.    Moreover, Section
9718.1(d) specifically states:

       Notwithstanding any other provision of law to the contrary, this
       section shall not be construed to confer any legal right upon any
       individual, including an individual required to participate in the
       department’s programs of counseling or therapy for incarcerated
       offenders, seeking to: (1) participate and attend the program
       provided in subsection (a) at the time of the individual’s own
       choosing; (3) be paroled.

42 Pa.C.S. § 9718.1(d)(1), (3).

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      This argument fails for a number of reasons, but most importantly, the

argument does not recognize the fact that granting or denial of parole does

not affect the sentence. As this Court has stated:

      “[t]he granting and rescinding of parole are purely administrative
      functions.” Rivenbark v. Com., Pennsylvania Bd. Of Prob. &
      Parole, 509 Pa. 248, 501 A.2d 1110, 1112 (1985). “Parole is a
      penological measure for the disciplinary treatment of prisoners
      who seem capable of rehabilitation outside the prison walls; it
      does not affect the sentence.” Id. at 1112 (emphasis added).

Commonwealth v. Oliver, 128 A.3d 1275, 1281 (Pa. Super. 2015).

      Additionally, there is no right to parole.

      There is never any right to parole. See Commonwealth v. Stark,
      698 A.2d 1327, 1333 (Pa. Super. 1997) (convicted persons in
      Pennsylvania have no constitutional or inherent rights to parole).
      “Parole is a matter of grace and mercy shown to a prisoner who
      has demonstrated to the Board's satisfaction his ability to function
      as a law abiding member of society.” Commonwealth v.
      Baldwin, 760 A.2d 883, 886 (Pa. Super. 2000) (quoting Stark,
      698 A.2d at 1333) When a convict is sentenced, he or she has no
      legitimate expectation except to serve the maximum sentence.
      See Commonwealth v. Daniel, 430 Pa. 642, 243 A.2d 400, 403
      (1968) (“the maximum sentence is the real sentence”); Gundy v.
      Com., Pennsylvania Board of Probation and Parole, 82 Pa.
      Cmwlth. 618, 478 A.2d 139, 141 (1984) (stating, “[t]he sentence
      imposed for a criminal offense is the maximum sentence and the
      minimum sentence merely sets the date prior to which a prisoner
      may not be paroled”).

Commonwealth v. Walters, 814 A.2d 253, 258 (Pa. Super. 2002) (Graci,

J., concurring opinion).

      Because Barnhart has no right to parole and the failure to be granted

parole has no effect upon Barnhart’s sentence, it cannot be said that Alleyne

requires us to find Section 9718.1 unconstitutional.


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        Next, Barnhart claims his sentence for IDSI is unconstitutional in that it

is overbroad and disproportionate by classifying oral sex as deviate and it is

also disproportionate in that it punishes homosexual behavior greater than

heterosexual behavior. These arguments are without merit.

        Barnhart does not explain why he believes the IDSI sentencing is

overbroad. Accordingly, we will not address that. However, his argument

does claim that sentencing for “deviate” sexual acts, such as oral sex as

applicable in his trial, is disproportionate in that it is punished with double the

severity as crimes involving heterosexual vaginal intercourse. To illustrate his

claim, he has compared standard range sentences for AIA (18 Pa.C.S. § 3125

(a)) with IDSI (18 Pa.C.S. § 3123(a)(7)6). Specifically, he argues a standard

range sentence for AIA, with a prior record score of “0”, produces a minimum

sentence range of 22 to 36 months’ incarceration. The sentence for IDSI, also

with a prior record score of “0”, produces a standard range minimum sentence

of 48 to 66 months’ incarceration. To understand this false comparison, one

needs to examine the relevant elements of the crimes of IDSI, Rape, and AIA.

        Relevant to this case, IDSI includes, an act of intercourse per os

between humans, with some penetration, however slight.7 It is a felony of the


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6Barnhart has mistakenly cited 18 Pa.C.S. § 3127(a)(7) rather than Section
3123. Section 3127 addresses Indecent Exposure.

7   18 Pa.C.S. § 3123, 3101 (definition of deviate sexual intercourse).




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first degree. Rape, requires an act of sexual intercourse.8 Sexual intercourse

“in addition to its ordinary meaning, includes intercourse per os or anus, with

some penetration however slight”.9 Rape is also a felony of the first degree.

Aggravated Indecent Assault requires penetration, however slight, of the

genitals or anus of the complainant with any part of the defendant’s body,10

and is graded as a second degree felony. However, the definitions of Rape,

IDSI, and AIA obviously overlap.

        In his argument, Barnhart uses an act of sexual intercourse as his

example of AIA, but uses intercourse per os, which also fits the definition of

AIA, as his example of IDSI. In choosing these crimes for his comparison, he

claims the society punishes “deviate” sex more harshly than sexual

intercourse, and does so for no discernable reason. This fact, Barnhart argues,

produces unconstitutionally disparate sentences. But in choosing to compare

AIA with IDSI, Barnhart is comparing a second degree felony to a first degree

felony and then arguing the punishment for sexual intercourse (AIA, second

degree felony) is significantly less than punishment for oral sex (IDSI, a first

degree felony). Barnhart’s argument ignores the fact that both intercourse

per os and sexual intercourse (in its “ordinary meaning”) can be classified as

AIA.     Both acts can, therefore, be classified as a second degree felony.

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8   18 Pa.C.S. § 3121, 3101 (definition of sexual intercourse).

9   18 Pa.C.S. § 3101 (definition of sexual intercourse).

10   18 Pa.C.S. § 3125

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Similarly, the acts of sexual intercourse and intercourse per os can also be

charged as the first degree felony of Rape and intercourse per os can be

chargeable as the first degree felony of IDSI. As both acts are classifiable as

first or second-degree felonies, both acts are subject to the penalties

associated therewith.

      Barnhart has chosen to compare a second degree felony with a first

degree felony and complain about the disparate sentences. This is a false

comparison.    The penalties for sexual intercourse and “deviate sex” are

directly comparable as either first degree felonies (Rape/IDSI) or second

degree felonies (both fitting the definition of AIA). Accordingly, it is clear that

the punishments for deviate sexual intercourse per os and sexual intercourse

are not disparate.

      In light of the above, this aspect of Barnhart’s claim fails.

      Barnhart also claims that sentencing for IDSI is facially unconstitutional

in that it treats homosexuals differently from heterosexuals. Barnhart argues

Obergefell v. Hodges, ___ U.S. ___, 135 S.Ct. 2584, 192 L.Ed.2d 609

(2015), which determined homosexuals could not be denied the right to marry

just as heterosexuals are allowed, created a protected class, and therefore,

may not be discriminated against in criminal sentencing.      This argument fails

for a number of reasons.

      First, Obergefell, as we read the case, did not name homosexuals as a

protected class, rather, it recognized that homosexuals had been improperly




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prevented from marriage and so found homosexuals have an equal right to

marriage.

      Second, assuming for the sake of argument that Obergefell named

homosexuals as a protected class, Barnhart is male and his victim is female.

The crimes he was charged with do not include him as a member of the alleged

protected class and, therefore, has suffered no harm from being a member of

that class. Accordingly, he has no standing to challenge the law based on the

alleged disparate treatment of a protected class.

      Third, his argument is based on the same spurious logic that the IDSI

sentencing is unconstitutionally disparate. As demonstrated above, it is not.

      In his final argument, Barnhart claims the trial court erred in failing to

give a specific jury instruction regarding the Commonwealth’s ability or

inability to prove the dates on which the crimes took place. This issue is not

properly before us. A defendant “is not entitled to raise any issues regarding

alleged trial errors in [a] resentencing proceeding.”      Commonwealth v.

Gaito, 419 A.2d 1208, 1211 (Pa. Super. 1980). This should have been raised

either on direct appeal or it might be raised in a timely filed Post Conviction

Relief Act petition.

      For the foregoing reasons, Barnhart is not entitled to relief.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2017




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