J-A09003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 TIMOTHY STEDNITZ,                         :
                                           :
                     Appellant.            :   No. 1822 EDA 2018


     Appeal from the Judgment of Sentence Entered, January 26, 2018,
           in the Court of Common Pleas of Montgomery County,
           Criminal Division at No(s): CP-46-CR-0002518-1995,
                         CP-46-CR-0009064-2014.


BEFORE:     KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY KUNSELMAN, J.:                             FILED MAY 31, 2019

      Timothy Stednitz appeals from the judgment of sentence imposed after

the trial court convicted him of multiple sex offenses. We affirm.

      The Commonwealth charged Stednitz with numerous offenses related to

sexual assaults he perpetrated upon his nine-year-old daughter.            The trial

court summarized the procedural history as follows:


             A stipulated bench trial was held on January 5, 2017. The
          Commonwealth introduced the Complaint and [Stednitz’s]
          Statement as stipulated evidence.         This Court found
          [Stednitz] guilty of two counts of Aggravated Indecent
          Assault of a Child, two counts of Indecent Assault of a Child,
          Endangering the Welfare of a Child, and Corruption of
          Minors. Thereafter, the Commonwealth served notice of
          their intention to seek a mandatory sentence. Counsel for
          [Stednitz] was subsequently unavailable due to medical
          issues, and new counsel for [Stednitz] was appointed. On
          January 26, 2018, [Stednitz] was sentenced to a []

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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          mandatory minimum second strike of 25-50 years of
          imprisonment on Count 16, Aggravated Indecent Assault of
          a Child, a concurrent 25-50 years of imprisonment on Count
          17, Aggravated Indecent Assault on a Child, a concurrent
          25-50 years of imprisonment on Count 36, Indecent Assault
          of a Child, a concurrent 25-50 years of imprisonment on
          Count 37, Indecent Assault of a Child, a consecutive 3½ to
          7 years of imprisonment on Count 41 Endangering the
          Welfare of a Child, and a concurrent 25-50 years of
          imprisonment on Count 42, Corruption of Minors.

            Post-Sentence Motions were filed on February 2, 2018,
          and denied [on] May 22, 2018.

Trial Court Opinion, 7/19/18, at 2-3 (citation and footnote omitted).1 This

timely appeal followed. Both Stednitz and the trial court have complied with

Pa.R.A.P. 1925.

       Stednitz raises the following issues:

          1. Did the trial court err in imposing the mandatory
             minimum sentence of 25 to 50 years pursuant to 42
             Pa.C.S.A. § 9718.2 when the statute requires only proof
             by a preponderance of the evidence at the time of
             sentencing and not proof beyond a reasonable doubt in
             violation of the 6th and 14th Amendments of the United
             States Constitution and Article I, sections 6 and 9 of the
             Pennsylvania Constitution?

          2. Did the trial court err in imposing the mandatory
             minimum sentence of 25 to 50 years pursuant to 42
____________________________________________


1  [Stednitz] was also sentenced on docket No. CP-46-CR-0002518 for a
probation violation. That sentence was to run consecutive to the sentence
imposed on docket No. CP-46-CR-0009064-2014 for a total period of
incarceration of 31½-63 years. [Stednitz] does not challenge the aggregate
sentence nor the probation sentence on docket No. CP-46-CR-0002518-1995
although that docket number has been included in the notice of appeal. Thus,
although two docket numbers are listed, there is no violation of our Supreme
Court’s recent pronouncement in Commonwealth v. Walker, 185 A.3d 969
(Pa. 2018).


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              Pa.C.S.A. § 9718.2 when the element triggering the
              mandatory     minimum      sentence,    Stednitz’s  prior
              conviction for an offense outlined in 42 Pa.C.S.A. §
              9799.14, was not found beyond a reasonable doubt by
              the fact-finder at trial in violation of the 6th and 14th
              Amendments of the United States Constitutions and
              Article I, sections 6 and 9 of the Pennsylvania
              Constitution?

          3. Did the trial court err in considering the Sexual Offender
             Assessment Board report as to whether Stednitz met the
             statutory criteria as a Sexually Violent Predator when the
             Commonwealth did not seek such a finding due to the
             unconstitutionality of that provision, as recognized in
             Commonwealth v. Butler, 173 A.2d 1212 (Pa. Super.
             2017), in violation of his due process rights and right to
             confrontation under the 6th and 14th Amendments of the
             United States Constitution and Article I, Section 9 of the
             Pennsylvania Constitution?

See Stednitz’s Brief at 4.2

       Because Stednitz’s first two issues concern the trial court’s application

of section 9718.2 of the Sentencing Code, we address them together.

       Stednitz’s sentencing claims, based on Alleyne v. U.S., 570 U.S. 99

(2013), Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), and

Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016), as well as other

Pennsylvania     decision    invalidating      Pennsylvania’s   mandatory   minimum

sentencing scheme, involve the legality of his sentences. “When reviewing

the legality of a sentence, our standard of review is de novo and our scope of


____________________________________________


2Stednitz also raised a sentencing merger issue, but has withdrawn it in light
of Commonwealth v. Allen, 856 A.2d 1251 (Pa. Super. 2004). See
Stednitz’s Brief at 10.


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review is plenary.” Commonwealth v. Melvin, 172 A.3d 14, 19 (Pa. Super.

2017), appeal denied, 187 A.3d 207 (Pa. 2018).

      Section   9718.2(a)(1),   which    provides   for   mandatory    minimum

sentences for certain sex offenders, reads, in pertinent part, as follows:

         Any person who is convicted in any court of this
         Commonwealth of an offense set forth in section 9799.14
         (relating to sexual offenses and tier system) shall, if at the
         time of the commission of the current offense the person
         had previously been convicted of an offense set forth in
         section 9799.14 or an equivalent crime under the laws of
         this Commonwealth in effect at the time of the commission
         of that offense or an equivalent crime in another jurisdiction,
         be sentenced to a minimum sentence of at least 25 years of
         total confinement, notwithstanding any other provision of
         this title or other statute to the contrary.

42 Pa.C.S.A. § 9718.2(a)(1).     Section 9718(c) also contains the following

“Proof at sentencing” provision, which reads, in pertinent part, as follows:

      The provisions of this section shall not be an element of the crime,
      and notice thereof to the defendant shall not be required prior to
      conviction, but reasonable notice of the Commonwealth’s
      intention to proceed under this section shall be provided after
      conviction and before sentencing. The applicability of this section
      shall be determined at sentencing. The sentencing court, prior to
      imposing sentence on an offender under subsection (a), shall have
      a complete record of the previous convictions of the offender,
      copies of which shall be provided to the offender. If the offender
      or the attorney for the Commonwealth contests the accuracy of
      the record, the court shall schedule a hearing and direct the
      offender and the attorney for the Commonwealth to submit
      evidence regarding the previous convictions of the offender. The
      court shall then determine, by a preponderance of the evidence,
      the previous convictions and, if this section is applicable, shall
      impose sentence in accordance with this section.

42 Pa.C.S.A. § 9718.2(c).


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       Stednitz summarizes his constitutional challenge as follows:

             Due process requires proof beyond a reasonable doubt of
          a prior conviction when imposing a mandatory minimum
          sentence within a recidivist sentencing framework.
          Although previous rulings pursuant to Alleyne and
          [Apprendi v. New Jersey, 530 U.S. 466 (2000)] have held
          that recidivist-based mandatory minimum sentencing fell
          outside the requirements of the right to trial and right to a
          jury trial, those decisions focused on the fact-finding
          provisions where the triggering fact became an element of
          the offense. Regardless of the fact-finding provision, due
          process requires finding of the triggering fact – in this
          instance a prior conviction for an offense requiring
          registration pursuant to SORNA – beyond a reasonable
          doubt. The enforcement mechanism of 42 Pa.C.S.A. §
          9718.2 requires only proof by a preponderance of the
          evidence. Thus the court imposed a mandatory minimum
          sentence pursuant to an unconstitutional statute.

             In addition to the due process requirements, the trial
          court, as fact-finder, failed to find the existence of a prior
          conviction at trial. The failure to find this element beyond a
          reasonable doubt at trial precluded imposition of the
          mandatory minimum sentence. Due to the failure to find
          the prior conviction beyond a reasonable doubt, the
          sentencing court erred [by] imposing the mandatory
          minimum sentence.

Stednitz’s Brief at 6.

       The trial court found no merit to Stednitz’s claims. The court first noted

that   “no   Pennsylvania    Court   has    found   this   mandatory   minimum

unconstitutional.” Trial Court Opinion, 7/19/18, at 4. The Court then cites to

this Court’s decision in Commonwealth v. Reid, 117 A.3d 777, 784-85 (Pa.

Super. 2015), for the proposition that “Alleyne did not overturn prior

precedent that prior convictions are sentencing factors and not elements of



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offenses.” Id. The trial court further noted that “[o]ther sentences based on

prior convictions have been upheld. Trial Court Opinion, 7/19/18, at 5 (citing

Commonwealth v. Akbar, 91 A.3d 227, 239 n.9 (Pa. Super. 2014);

Commonwealth v. Aponte, 855 A.2d 800, 811-12 (Pa. 2004)).

      In Aponte, our Supreme Court explained why Section 780-115(a), a

sentencing enhancement provided for in the Controlled Substance, Drug,

Device and Cosmetic Act, 35 P.S. sections 780-101, et seq., did not violate

the defendant’s due process rights:

            [Aponte] overlooks the fact, however, that the statute at
         issue in this case does not provide for any fact-finding, nor
         does it make the increased maximum sentence contingent
         on any factual question that has not already been
         determined. The fact of a prior conviction stands alone; it
         does not require a presumption—it either exists as a matter
         of public record or it does not. [A defendant’s ] guilt of the
         prior offense has already been determined beyond a
         reasonable doubt, by a jury, if he chose to exercise that
         right, and is a straightforward issue capable of objective
         proof and where the risk of error was slight.

                                         ***

            [When] the judicial finding is the fact of a prior
         conviction, submission to a jury is unnecessary, since the
         prior conviction is an objective fact that initially was cloaked
         in all the constitutional safeguards, and is now a matter of
         public record.

Aponte, 855 A.2d at 811 (citations and footnote omitted).

      Here, the trial court concluded:

            Likewise in this case, [Stednitz’s] prior conviction was a
         matter of public record, and was “cloaked in all the
         constitutional safeguards” that such a conviction entails. A
         prior conviction does not need to be proven beyond a

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         reasonable doubt to the fact finder. See [Reid, supra].
         Thus, the mandatory minimum under which [Stednitz] was
         sentenced is not unconstitutional and affords [Stednitz] no
         relief.

Trial Court Opinion, 7/19/18, at 5. We agree.

      Although Aponte was decided prior to the United States Supreme

Court’s decision in Alleyne, and the Pennsylvania cases which follow it, the

above discussion from Aponte is consistent with more recent decisions from

this Court as well as the Pennsylvania Supreme Court.                 See, e.g.,

Commonwealth v. Golson, 189 A.3d 944, 1000-02 (Pa. Super. 2018)

(upholding imposition of mandatory 25 to 50 year mandatory minimum

pursuant to 42 Pa.C.S.A. § 9718.2, based upon a prior conviction); see also

Commonwealth v. Resto, 179 A.3d 18, 21 (Pa. 2018) (explaining that “a

conviction returned by a jury to which a mandatory minimum sentence directly

attaches is not the same as an aggravating fact that increases a mandatory

sentence. In any event, such a conviction is itself a contemporaneous jury

determination, and the concern of Alleyne is with sentencing enhancements

tied to facts to be determined by a judge at sentencing”).

      In sum, because the trial court in this case properly enhanced Steinitz

sentences based on his prior conviction, his first two issues fail.

      In his third and final issue, Stednitz asserts that the trial court erred by

“imposing a sentence following the Commonwealth’s argument [based] on




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facts not admitted at the sentencing hearing.”              Stednitz’s Brief at 6.3

According to Stednitz, the trial court “improperly considered this argument

and it unduly influenced the sentencing decision.” Id. Stednitz’s claim fails,

as it is based on no more than speculation.

       Our    review     of   the    sentencing    transcript   confirms   that   the

Commonwealth did refer to the contents of the Sexual Offender Assessment

Board (“SOAB”) report as to whether Stednitz met the statutory criteria as a

Sexually Violent Predator (“SVP”) even though it did not seek such a

designation in light of Butler, supra.           See, N.T., 1/26/18, at 23-26.    As

explained by the trial court, however, the court did not sentence Stednitz

based upon any information in the SOAB report:

          [Stednitz] alleges such consideration was unconstitutional
          and violated his right to confrontation. The Commonwealth
          revealed some conduct that the [SOAB] had discussed. In
          response to [defense counsel’s] objection, this Court stated
          that, “it will go to the weight, I understand that it hasn’t
          been charged.” However, in fashioning a sentence, this
          Court specifically did not consider whether [Stednitz] met
          the criteria for [an SVP].

             Rather, this Court focused on the reported history of
          [Stednitz] from the Pre-Sentence Investigation and the
          victim impact in its sentencing. In this case, the Court
          concentrated on the severe impact these crimes had on the
          victim, as well as on her family. This Court also considered
          the failure of [Stednitz] to rehabilitate after the prior
____________________________________________


3 Arguably, Stednitz’s claim involves the legality of his sentence rather than
its discretionary aspects. See generally, Commonwealth v. Wilson, 11
A.3d 519, 524-25 (en banc), vacated in part on other grounds, 67 A.3d 736
(Pa. Super. 2013).



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         conviction. Nowhere in the record does this Court cite or
         mention the [SOAB report] or the information contained
         therein. Instead, this Court relied on information provided
         from the Pre-Sentence Investigation which is appropriate.
         Thus, as this Court did not consider the [SOAB] report as to
         whether [Stednitz] met the statutory criteria as [an SVP]
         when fashioning its sentence as [Stednitz] claims, there is
         no error.

Trial Court Opinion, 7/19/18, at 9 (citations omitted).

      The above statements by the trial court are confirmed by our reading of

its stated reasons for the sentence it imposed. See N.T., 1/26/18, at 37-42.

Moreover, not only did the trial court not consider the SVP report in choosing

its sentence but also, as Stednitz concedes, the trial court did not designate

him an SVP. Stednitz’s third claim therefore fails.

      Judgment of sentence affirmed.

 Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/19




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