J-A34029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                       v.

DICK RAY HAMILTON

                            Appellant                No. 492 MDA 2015


                Appeal from the PCRA Order February 11, 2015
               In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0000640-2011


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                              FILED MARCH 21, 2016

        Dick Ray Hamilton appeals the order entered February 11, 2015, in the

Franklin County Court of Common Pleas, dismissing his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et

seq. Hamilton seeks relief from the judgment of sentence of an aggregate

term of 44 to 100 years’ imprisonment imposed on July 5, 2012, after a jury

found him guilty of two counts of rape of a child, two counts of involuntary

deviate sexual intercourse (“IDSI”) with a child, two counts of indecent

assault, and two counts of endangering the welfare of children (“EWOC”). 1

On appeal, he contends the PCRA court erred in denying his petition based

on the following: (1) trial counsel was ineffective for failing to call various
____________________________________________


1
    18 Pa.C.S. §§ 3121(c), 3123(b), 3126(a)(7), and 4304(b), respectively.
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witnesses; (2) trial counsel was ineffective for failing to object to certain

prior bad acts evidence; and (3) the trial court imposed a mandatory

minimum sentence, which violated the Supreme Court’s mandate in Alleyne

v. United States, 133 S.Ct. 2151 (U.S. 2013). For the reasons that follow,

we affirm in part and reverse in part the order of the PCRA court, vacate the

judgment of sentence, and remand for resentencing.

      The following relevant facts were taken from the trial court’s opinion

following Hamilton’s direct appeal:

      The evidence at trial established that [Hamilton] systematically
      abused A.B. and A.W., who were both under ten years old at the
      time. A.W. was also developmentally disabled.        The abuse
      occurred inside [Hamilton’s] mobile home, where he was
      supposed to be babysitting the victims.

      Police charged [Hamilton] with ten counts, all related to the
      sexual abuse. For his part, [Hamilton] admitted to police during
      questioning—and to the jury during trial—that he exposed
      himself to the victims.      He claimed that he was medically
      incapable of performing intercourse, and generally denied the
      other allegations of physical sexual abuse.

Trial Court Opinion, 10/2/2012, at 1-2.

      On March 15, 2012, a jury convicted Hamilton of the above-mentioned

crimes.   Hamilton filed post-trial motions, which were denied on May 11,

2012. On July 5, 2012, the court sentenced Hamilton to terms of 120-240

months’ imprisonment for each IDSI and rape crime pursuant to the

mandatory minimum sentencing provisions of 18 Pa.C.S. § 9718, and terms




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of 60-120 months’ incarceration for each indecent assault and EWOC count,

all to be served consecutively.2 He filed a direct appeal on August 3, 2012.

A panel of this Court affirmed his sentence on March 22, 2013, and the

Pennsylvania Supreme Court denied his petition for allowance of appeal on

October 16, 2013. See Commonwealth v. Hamilton, 69 A.3d 1299 [1410

MDA 2012] (Pa. Super. 2013) (unpublished memorandum), appeal denied,

77 A.3d 1259 (Pa. 2013).

       On May 21, 2014, Hamilton filed a timely PCRA petition.                An

evidentiary hearing was held on December 1, 2014. On February 12, 2015,

the PCRA court issued an order and opinion, denying Hamilton’s petition.

This timely appeal followed.3

       Based on the nature of Hamilton’s first two claims, we will address

them together.        In his first argument, he complains trial counsel was

ineffective for failing to call character witnesses, his wife, and an expert

witness to testify at trial.4       In Hamilton’s second issue, he asserts trial

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2
    The court also determined Hamilton was a sexually violent predator.
3
   On March 12, 2015, the PCRA court ordered Hamilton to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Hamilton filed a concise statement on April 1, 2015. The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on May 14, 2015.
4
    Specifically, with respect to the character witnesses, Hamilton states:

       Despite the existence of numerous character witnesses willing to
       testify on [his] behalf, trial counsel chose not to call these
(Footnote Continued Next Page)


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counsel was ineffective for failing to object to the admission of prior bad act

evidence by the Commonwealth. Id. at 14. By way of background, during

opening statements, the prosecutor mentioned that Hamilton showed the

victims pornographic videos. N.T., 3/14/2012, at 6. Hamilton claims trial

counsel “should have objected immediately and moved for a mistrial upon
                       _______________________
(Footnote Continued)

      witnesses. [Hamilton] also related to counsel that his wife was
      willing and able to testify that he had never been alone with the
      alleged victims. Trial counsel also did not call [Hamilton]’s wife
      to testify. The trial transcript is notably devoid of any testimony
      either from character witnesses or from [Hamilton]’s wife. The
      failure to call these witnesses clearly prejudiced [his] case as
      testimony from members of the community regarding his
      character and from his cohabitating wife explaining to the jury
      that [Hamilton] was never alone with the victims would have
      been extremely relevant and compelling.

Hamilton’s Brief at 13.           With regard to the expert witness, Hamilton
contends:

             Despite [Hamilton] informing counsel of his diagnosis of
      erectile dysfunction, [trial] counsel failed to call an expert
      witness, namely [Hamilton]’s medical doctor, to testify regarding
      [Hamilton]’s condition and the resulting impossibility of
      numerous … acts alleged by the Commonwealth. A review of the
      trial record makes it clear that no such expert testimony was
      provided. Further highlighting the impact such testimony could
      have had is the Commonwealth’s line of questioning on cross
      examination upon [Hamilton] taking the stand when she called
      into question his diagnosis of erectile dysfunction by asking, “Do
      you have the doctor here to talk about your problems with your
      not being able to be erect?” (Trial Transcript Day 2, pg. 32).
      Obviously, [Hamilton] did not have his doctor in court to testify
      to his condition due to [trial] counsel’s failure to subpoena and
      call as a witness the doctor.

Id. at 13-14.




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this utterance of prior bad acts of [Hamilton] which had not been disclosed

to [him] or [trial] counsel pursuant to Pennsylvania Rule of Evidence

404(b).” Hamilton’s Brief at 14. Additionally, he argues trial counsel did not

object during direct examination of the first victim when she was asked

about the videos, and counsel also improperly asked the victim about the

videos during cross-examination. Id. at 15. Hamilton notes that it was not

until after multiple Commonwealth witnesses had been called to testify that

counsel requested a motion for a mistrial. Id. Moreover, Hamilton states

counsel erred by filing a post-trial motion pursuant to Pennsylvania Rule of

Criminal Procedure 720(c) (after-discovered evidence) instead of an oral

motion for extraordinary relief. Id.5

       Before we may address the merit of these arguments, we note that

the transcript from the December 1, 2014, PCRA hearing was not included in

the certified record.      A review of the record reveals Hamilton’s privately

retained counsel did not include a request for transcripts in the March 11,

2015, notice of appeal.          After inquiring, this Court discovered Franklin
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5
  Specifically, Hamilton alleges that prior to the second and final day of trial,
the Commonwealth was informed by one of the victims’ mother that her
daughter had been taken to the hospital and the doctors believed she had
genital herpes. Hamilton’s Brief at 15. Hamilton avers that he does not
have genital herpes. Id. The PCRA court determined that the appropriate
method to preserve his right to a new trial based on this evidence would
have been an oral motion, instead of a post-trial motion. PCRA Court
Opinion, 2/12/2015, at 14-16.          As such, Hamilton claims counsel’s
procedural failure precluded him from being granted a new trial. Hamilton’s
Brief at 15.



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County Court Reporter’s Office never received a request to transcribe the

PCRA hearing.

       We note the following: “[A]n appellate court is limited to considering

only the materials in the certified record when resolving an issue.”

Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006) (en banc),

appeal denied, 916 A.2d 632 (Pa. 2007). “Simply put, if a document is not in

the certified record, the Superior Court may not consider it.” Id. at 7.

       Moreover, this Court explained:

       Where the appellant has not made the transcript of the
       proceedings at issue a part of the certified record, we have said:

           With regard to missing transcripts, the Rules of Appellate
           Procedure require an appellant to order and pay for any
           transcript necessary to permit resolution of the issues
           raised on appeal. Pa.R.A.P. 1911(a). . . . When the
           appellant . . . fails to conform to the requirements of Rule
           1911, any claims that cannot be resolved in the absence of
           the necessary transcript or transcripts must be deemed
           waived for the purpose of appellate review.

       [Preston, 904 A.2d] at 7.

Commonwealth v. Houck, 102 A.3d 443, 456 (Pa. Super. 2014).6

Accordingly, we conclude Hamilton’s first two arguments, which concern

ineffective assistance of trial counsel, have been waived for appellate review

because he has not provided this Court the transcript from the PCRA

hearing.
____________________________________________


6
   Both Hamilton and the Commonwealth aver that trial counsel testified at
the PCRA hearing, asserting he had a reasonable basis for his actions.



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        Turning to Hamilton’s remaining argument, he asserts he was

sentenced, in part, pursuant to the mandatory sentencing statute, 42

Pa.C.S. § 9718, which subsequently has been found to be unconstitutional,

pursuant to Alleyne and its progeny. Hamilton’s Brief at 15. Consequently,

Hamilton     argues     his    four   consecutive      terms     of    120-240      months’

imprisonment for IDSI and rape are illegal.7

        Our standard of review is well-settled:

        Our standard of review of an order denying PCRA relief is
        whether the record supports the PCRA court’s determination and
        whether the PCRA court’s decision is free of legal error. The
        PCRA court’s findings will not be disturbed unless there is no
        support for the findings in the certified record.

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (internal

citations omitted).

        In Alleyne, the United States Supreme Court held “[a]ny fact that, by

law, increases the penalty for a crime is an ‘element’ that must be submitted

to the jury and found beyond a reasonable doubt.” Alleyne, 133 S.Ct. at

2155.     In applying that mandate, an en banc panel of this Court, in

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc),

appeal denied, 121 A.3d 496 (Pa. 2015), held that Alleyne rendered the

mandatory      minimum        sentencing       provision   at   42    Pa.C.S.   §   9712.1,

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7
   The PCRA court and the Commonwealth both agree that Hamilton’s
sentence is illegal and a remand is necessary for re-sentencing. See PCRA
Court Opinion, 5/14/2015, at 5-28; Commonwealth’s Brief at 14.



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unconstitutional. Section 9712.1, which provides for a five-year mandatory

minimum prison term when a defendant possesses or is in close proximity to

a firearm while selling illegal drugs, includes a provision that permits the

trial court to determine at sentencing whether the elements necessary to

increase the mandatory minimum sentence were proven by a preponderance

of the evidence.   See 42 Pa.C.S. § 9712.1(c).    The Newman Court held

that, under Alleyne, Section 9712.1 “can no longer pass constitutional

muster [because] it permits the trial court, as opposed to the jury, to

increase a defendant’s minimum sentence based upon a preponderance of

the evidence” standard. Newman, supra, 99 A.3d at 98.

     Further, the Newman Court found the unconstitutional provisions in

Section 9712.1 were not severable from the statute as a whole. See id. at

101 (“We find Subsections (a) and (c) of Section 9712.1 are essentially and

inseparably connected.”).   Recently, the Pennsylvania Supreme Court in

Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), applied the same

reasoning when it determined that another mandatory minimum sentencing

statute, 18 Pa.C.S. § 6317, was unconstitutional under Alleyne.          The

Supreme Court opined:

           In conclusion, we hold … that numerous provisions of
     Section 6317 are constitutionally infirm under Alleyne.
     Moreover, the remaining provisions of Section 6317, standing
     alone, are incomplete and are incapable of being vindicated in
     accord with the intent of the General Assembly. 1 Pa.C.S. §
     1925. Because of the significant provisions found to violate the
     Constitution, which clearly express the intent of the legislature
     that Section 6317 is a mandatory minimum sentencing statute,

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      and not a substantive offense, we find the remaining unoffending
      provisions of Section 6317 are incapable of being severed, and
      we will not judicially usurp the legislative function and rewrite
      Section 6317 or create a substantive offense which the General
      Assembly clearly did not desire. Rather, we leave it to our sister
      branch for an appropriate statutory response to the United
      States Supreme Court’s decision in Alleyne.

Id. at 262.

      The mandatory sentencing statute applied sub judice, 42 Pa.C.S. §

9718, contains the same provision as in Sections 6317 and 9712.1, which

permits the trial court to make factual determinations at sentencing under

the relaxed preponderance of the evidence standard, and which has been

found to be unconstitutional under Alleyne. Indeed, in Commonwealth v.

Wolfe, 106 A.3d 800 (Pa. Super. 2014), appeal granted, 121 A.3d 433 (Pa.

2015), a panel of this Court held that            Section 9718 is “facially

unconstitutional.” Id. at 805 (holding “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.”).

      Nevertheless, our review does not end there. We “note the Newman

Court instructed that Alleyne applies only to cases pending on direct appeal

as of June 27, 2013, the date of the Alleyne decision.” Commonwealth v.

Ruiz, __ A.3d __, 2015 PA Super 275, *9 (Pa. Super. Dec. 30, 2015).


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       It is also settled that Alleyne does not invalidate a mandatory

minimum sentence when presented in an untimely PCRA petition.                See

Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014).8 Furthermore,

this Court also recently declined to give Alleyne retroactive effect to cases

on timely collateral review when the defendant’s judgment of sentence was

finalized before Alleyne was decided. See Commonwealth v. Riggle, 119

A.3d 1058 (Pa. Super. 2015).9

       In Commonwealth v. Ruiz, ___ A.3d ___, 2015 PA Super 275 [1925

MDA 2014] (Pa. Super. filed December 30, 2015), this Court once again

revisited the Alleyne timeliness issue. It distinguished the underlying case

from Miller and Riggle with respect to the fact that the defendant had filed

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8
   In concluding Alleyne does not satisfy the new retroactive constitutional
right exception to the PCRA’s one year time bar, 42 Pa.C.S. §
9545(b)(1)(iii), the Miller Court explained:

       Even assuming that Alleyne did announce a new constitutional
       right, neither our Supreme Court, nor the United States
       Supreme Court has held that Alleyne is to be applied
       retroactively to cases in which the judgment of sentence
       had become final.         This is fatal to Appellant’s argument
       regarding the PCRA time-bar. This Court has recognized that a
       new rule of constitutional law is applied retroactively to cases on
       collateral review only if the United States Supreme Court or our
       Supreme Court specifically holds it to be retroactively applicable
       to those cases.

Id. at 995 (citations omitted) (emphasis supplied).
9
  We note this issue is presently before an en banc panel of this Court. See
Commonwealth v. Aybar, 1224 MDA 2014 [E01010-16, Feb. 23, 2016].



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a timely PCRA petition and his judgment of sentence was finalized after

Alleyne was decided. Id. at *11.

     The Ruiz Court determined:

     [W]e are guided by this Court’s discussion in Newman, where
     the appellant’s judgment of sentence was affirmed by this Court
     five days before the United States Supreme Court issued
     Alleyne. This Court recognized:

        Although this court had already rendered its decision in
        appellant’s appeal at the time Alleyne was announced, we
        retain jurisdiction for 30 days thereafter, to modify or
        rescind our holding, or grant reargument as we have here,
        so long as the appellant does not seek allowance of appeal
        before our supreme court. See 42 Pa.C.S.A. § 5505.
        Moreover, our decision does not become final until 30 days
        have elapsed and the time for filing a petition for
        allowance of appeal with our supreme court expires. See
        Pa.R.A.P., Rule 1113(a), 42 Pa.C.S.A. § 5505. Therefore,
        appellant’s case was still pending on direct appeal when
        Alleyne was handed down, and the decision may be
        applied to appellant’s case retroactively.

     Newman, 99 A.3d at 90 (footnote omitted).

     Here, similar to the appellant in Newman, [the defendant’s]
     June 5, 2013, judgment of sentence was not final when Alleyne
     was decided because, in this case, the 30-day period within
     which the trial court’s order may be appealed, modified or
     rescinded, had not yet expired on June 17, 2013 — the date of
     the Alleyne decision. See Pa.R.A.P. 903(a), 42 Pa.C.S. § 5505.
     As such, [the defendant’s] case “was still pending on direct
     appeal when Alleyne was handed down, and the decision may
     be applied to [the defendant’s] case retroactively.” Newman,
     id.

     The Newman Court also made clear that an Alleyne claim is a
     non-waivable challenge to the legality of sentence. Such a claim
     may be raised on direct appeal, or in a timely filed PCRA
     petition. See 42 Pa.C.S. § 9542 (“persons serving illegal
     sentences may obtain collateral relief”); Commonwealth v.
     Hockenberry, 455 Pa. Super. 626, 689 A.2d 283, 288 (Pa.

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       Super. 1997) (“Issues relating to the legality of sentence cannot
       be waived and are cognizable under the PCRA”; addressing
       challenge to imposition of a mandatory minimum under 18
       Pa.C.S. § 7508(a)). Indeed, in Newman, the en banc panel
       recognized that Alleyne constituted a “new rule” that “applies to
       all criminal cases still pending on direct review.” Newman,
       supra, 99 A.3d at 90 (emphasis supplied), quoting Schriro v.
       Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 159 L. Ed. 2d 442
       (2004). Although the procedural posture in the present appeal
       differs from Newman in that [the defendant] raised his claim in
       a timely PCRA petition, the fact remains that [the defendant’s]
       judgment of sentence was “still pending on direct review” when
       Alleyne was decided. Newman, id.

Ruiz, 2015 PA Super 275, *12-14 (footnote omitted).10

       Turning to the present matter, Hamilton was found guilty on March 15,

2012, and sentenced on July 6, 2012.               On March 22, 2013, this Court

affirmed his judgment of sentence. Hamilton then filed a timely petition of

allowance of appeal with the Pennsylvania Supreme Court on April 25, 2013.

While his case was pending before the Pennsylvania Supreme Court, the

United States Supreme Court filed its decision in Alleyne on June 17, 2013.

Thereafter, on October 16, 2013, the Pennsylvania Supreme Court denied

Hamilton’s petition.

       We note a sentence is deemed final “at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States and

the Supreme Court of Pennsylvania, or at the expiration of time for seeking
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10
   As of the date of this memorandum, the Pennsylvania Supreme Court has
not definitively determined whether an Alleyne challenge implicates the
legality of the sentencing. See Commonwealth v. Wolfe, 121 A.3d 433,
434 (Pa. 2015).



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review.” 42 Pa.C.S. § 9545(b)(3).              Accordingly, Hamilton’s judgment of

sentence became final on January 14, 2014, 90 days after the Pennsylvania

Supreme Court denied his petition for allowance of appeal and the time for

filing a petition for review with the United States Supreme Court expired.

See U.S.Sup.Ct.R. 13.

       Therefore, in accordance with Newman and Ruiz, Hamilton’s July 6,

2012, judgment of sentence was not final when Alleyne was decided

because the matter was still pending before the Pennsylvania Supreme

Court.   Consequently, Hamilton’s case “was still pending on direct appeal

when Alleyne was handed down, and the decision may be applied to [the

defendant’s] case retroactively.”          Newman, 99 A.3d at 90.       Moreover,

Hamilton filed a timely PCRA petition on May 21, 2014, well within the one

year of the date that his judgment of sentence became final.              See 42

Pa.C.S. § 9545(b)(1). As such, like Ruiz, the holdings in Miller and Riggle

are not implicated herein.11

       Based on our review of the procedural background of this case and the

relevant law, we agree with the PCRA court’s conclusion in its May 14, 2015,

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11
   Furthermore, it merits mention that Hamilton raised this issue for the first
time in his concise statement. This is of no consequence as we recognize
that “[i]ssues relating to the legality of sentence cannot be waived and are
cognizable under the PCRA.” Commonwealth v. Hockenberry, 689 A.2d
283, 288 (Pa. Super. 1997), appeal denied, 695 A.2d 784 (Pa. 1997). See
also Newman, 99 A.3d at 90; Commonwealth v. Roney, 866 A.2d 351
(Pa. 2005), cert. denied, 546 U.S. 860 (2005).



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Rule 1925(a) opinion that Hamilton is entitled to be resentenced without

consideration of the mandatory minimum sentencing provision of 42 Pa.C.S.

§ 9718.      Accordingly, finding error in the PCRA court’s dismissal of

Hamilton’s petition, we reverse the order denying PCRA relief, vacate the

judgment of sentence, and remand for resentencing. In all other respects,

we affirm.

      Order affirmed in part and reversed in part.   Judgment of sentence

vacated. Case remanded for proceedings consistent with this memorandum.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/21/2016




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