J-A23023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    LAWRENCE CRAIG,

                             Appellant               No. 1339 WDA 2018


         Appeal from the Judgment of Sentence Entered July 31, 2018
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0006371-2017


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED DECEMBER 6, 2019

       Appellant, Lawrence Craig, appeals from the judgment of sentence of

an aggregate term of 2-4 years’ incarceration and 5 years’ consecutive

probation, imposed following his conviction by a jury for unlawful contact with

a minor and indecent assault. Appellant challenges the trial court’s denial of

his motion seeking the recusal of the trial court judge, as well as the legality

of his sentence.     After careful review, we vacate Appellant’s sentence and

remand for resentencing.

       The specific facts underlying Appellant’s conviction are not germane to

this appeal, beyond the fact that the charges in this matter involved

Appellant’s molestation of a 4-5 year old child.1      On July 24, 2017, the
____________________________________________


1 At the time of her testimony in this matter, the child victim was 14 years
old. N.T., 3/14/18, at 39.
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Commonwealth filed a criminal information charging Appellant with the

following offenses: unlawful contact with a minor, 18 Pa.C.S. § 6318(a)(1);

indecent assault, 18 Pa.C.S. § 3126(a)(7) (victim less than 13 years of age);

endangering welfare of children, 18 Pa.C.S. § 4304(a)(1); corruption of

minors, 18 Pa.C.S. § 6301(a)(1)(i); and indecent assault, 18 Pa.C.S. §

3126(a)(1) (without consent). On March 9, 2018, Appellant filed a recusal

motion premised on the fact that the trial judge, the Honorable Donna Jo

McDaniel, was potentially (or actually) biased toward Appellant following her

rejection of his plea agreement with the Commonwealth. First Recusal Motion

(“FRM”), 3/9/19, at 2 ¶ 11.

      Following a trial held on March 14, 15, and 19 of 2018, a jury convicted

Appellant of both counts of indecent assault, and of unlawful contact with a

minor. Appellant filed a second recusal motion between the guilty verdict and

sentencing. Second Recusal Motion (“SRM”), 6/1/18. The trial court orally

denied the second recusal motion immediately prior to sentencing.        N.T.,

7/31/18, at 5-7.   For unlawful contact with a minor, the court sentenced

Appellant to 1-2 years’ incarceration.    For indecent assault (pursuant to

subsection 3126(a)(7)), the court sentenced him to a consecutive term of 1-

2 years’ incarceration, to be followed by 5 years’ probation. He received no

further penalty for the second count of indecent assault.

      Appellant filed a timely notice of appeal, a timely, court-ordered

Pa.R.A.P. 1925(b) statement, and a supplemental Rule 1925(b) statement.




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The trial court issued its Rule 1925(a) opinion on January 24, 2019. Appellant

now presents the following questions for our review:

      I. Did the trial court abuse its discretion by refusing to recuse itself
      from [Appellant]’s trial based upon the appearance of impropriety
      and the finding by this Court of bias on the part of the trial judge?

      II. Is the sentence imposed [for indecent assault pursuant to
      subsection 3126(a)(7)] illegal in that it is greater than the lawful
      maximum?

Appellant’s Brief at 8.

      Appellant’s first claim concerns Judge McDaniel’s refusal to recuse. In

the first recusal motion, Appellant alleged that an appearance of impropriety

arose when Judge McDaniel rejected his plea agreement, yet continued to

oversee Appellant’s jury trial. FRM at 2-3 ¶¶ 11-12. In the second recusal

motion, filed after the verdict but prior to sentencing, Appellant reiterated the

prior basis for requesting recusal, and further argued that Judge McDaniel

harbored an ongoing bias against sex offenders, as suggested by numerous

contemporaneous newspaper articles. SRM at 2 ¶¶ 19-21. Appellant also

alleged that, while discussing the rejection of Appellant’s plea agreement,

Judge McDaniel prejudged the sentence she would impose on Appellant if he

were convicted. Id. at 2 ¶ 10.

      Appellant presents both of these recusal claims as one single composite

issue in his brief. Appellant’s Brief at 14-29. However, the recusal motions

raised separate factual predicates, involved largely unrelated lines of recusal

case law, were filed at different stages of the case, and, if meritorious,




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demanded substantially different forms of relief. Accordingly, we conclude

that the motions must be treated separately.

                           First Recusal Motion

     The Commonwealth contends that Appellant waived our consideration

of his first recusal motion. The Commonwealth explains:

     [I]t is noted that although [A]ppellant asserts that “Judge
     McDaniel denied the motion,” ([Appellant’s Brief at 28,]) nothing
     in the record evidences an effort on the part of the Assistant Public
     Defender to get a ruling on that motion prior to the start of trial
     and this attorney can’t find any Order (written or verbal) denying
     said motion prior to the start of trial. In fact, when given an
     opportunity to address pending motions prior to the start of the
     jury trial, [A]ppellant did not mention recusal ([N.T., 3/14/18, at
     3-5]). Appellant does not reference this Court to any part of the
     record where evidence of such pretrial denial (or pretrial litigation
     of the issue) can be found. “It is an appellant’s responsibility to
     ensure that the certified record contains all the items necessary
     to review is claims. When a claim is dependent on materials not
     provided in the certified record, that claim is considered waived.”
     Commonwealth v. Monarch, 165 A.3d 945, 949 (Pa. Super.
     2017)[, rev’d on other grounds, 200 A.3d 51 (Pa. 2019)] (citations
     omitted).      Although the motion was filed, it appears that
     [A]ppellant acceded to the trial court[’s] presiding over his trial
     due to the fact that he never attempted to litigate the issue,
     despite being given an opportunity to do so ([N.T., 3/14/18, at 3-
     5]). Compare Commonwealth v. Stokes, 78 A.3d 644 (Pa.
     Super. 2013)[,] and Commonwealth v. Colon, 846 A.2d 747
     (Pa. Super. 2004). … [T]his Court should find the claim dealing
     with the pretrial motion to recuse waived due to trial counsel’s
     failure to litigate the issue. See Pa.R.A.P. 302(a) (“Issues not
     raised in the lower court are waived and cannot be raised for the
     first time on appeal.”).

Commonwealth’s Brief at 2-3 (footnote omitted).

     We agree with the Commonwealth.           Although it is undisputed that

Appellant raised a timely, written, pretrial recusal motion, there is no


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indication in the record that the trial court ever ruled on that motion. When

the trial court indicated its intent to proceed to trial after having failed to rule

on the first recusal motion, Appellant failed to object or otherwise draw the

court’s attention to the pending recusal motion.

      When the court asked Appellant’s trial attorney if there were any

pending motions, he indicated that there were matters pending that had been

raised in a motion in limine. N.T., 3/14/18, at 3. Counsel then discussed the

merits of those issues. Id. at 3-5. Subsequently, Appellant’s attorney stated,

“Other than that, that is it.”    Id. at 5.    Appellant’s jury trial commenced

immediately thereafter with the trial court’s initial instructions to the jury. Id.

Accordingly, we agree with the Commonwealth that Appellant effectively

abandoned the first recusal motion by failing to prompt the trial court to rule

on it prior to his trial.

      In any event, had Appellant not waived the issue raised in the first

recusal motion by failing to prompt the trial court to address it prior to trial,

we would deem it meritless because Appellant failed to raise the trial court’s

effective denial of that motion separately in his Rule 1925(b) statement. “[I]n

order to preserve their claims for appellate review, [a]ppellants must comply

whenever the trial court orders them to file a Statement of Matters

Complained of on Appeal pursuant to Rule 1925. Any issues not raised in a

1925(b) statement will be deemed waived.” Commonwealth v. Lord, 719

A.2d 306, 309 (Pa. 1998). Here, Appellant specifically asserted in his Rule

1925(b) statement that he was challenging the denial of the “Motion to Recuse

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filed June 1, 2018,” which was the post-trial recusal motion, i.e., the second

recusal motion. Rule 1925(b) Statement, 10/11/18, at 3 ¶ a. Accordingly,

Appellant has waived our consideration of the effective denial of the first

recusal motion for this reason as well.

                          Second Recusal Motion

      In Appellant’s second recusal motion, which he filed after the verdict but

prior to sentencing, he set forth additional allegations regarding Judge

McDaniel’s inability to be impartial. He first alleged that Judge McDaniel had

prejudged his sentence. See SRM at 2-3 ¶¶ 10-12. Second, he asserted that

Judge McDaniel harbored both general and specific biases that impacted her

ability to be impartial. Id. at 3-4 ¶¶ 18-19; see also Commonwealth v.

Bernal, 200 A.3d 995, 1003 (Pa. Super. 2018) (holding that Judge McDaniel

had abused her discretion by denying a recusal motion where she displayed a

pattern of animus toward the Public Defender’s Office and toward sexual

offenders as a class).

      Important to our resolution of this matter, however, is that in the second

recusal motion,    Appellant specifically requested that      Judge   McDaniel

“disqualify [her]self as sentencing judge” and “that the Administrative Judge

reassign the case to another judge.” SRM at 6. Notably, Appellant did not

request a new trial at that time. Furthermore, as we discuss infra, we are

compelled to remand for resentencing pursuant to Appellant’s illegal

sentencing claim. Additionally, we take judicial notice of the fact that Judge

McDaniel has since retired.     Consequently, by granting Appellant a new

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sentencing hearing, we are effectively providing him the same relief that he

specifically requested in the second recusal motion. Accordingly, the issue

raised in the second recusal motion is rendered moot by our disposition of

Appellant’s sentencing claim.

                                Illegal Sentence

     Appellant argues that the trial court illegally sentenced him for indecent

assault, because the aggregate sentence imposed at that count exceeded the

statutory maximum sentence for that offense.

     “A challenge to the legality of the sentence may be raised as a
     matter of right, is non-waivable, and may be entertained so long
     as the reviewing court has jurisdiction.” Commonwealth v.
     Robinson, 931 A.2d 15, 19–20 (Pa. Super. 2007) (en banc). The
     phrase ‘illegal sentence’ is a term of art in Pennsylvania Courts
     that is applied to three narrow categories of cases. Id. at 21.
     Those categories are: “(1) claims that the sentence fell ‘outside of
     the legal parameters prescribed by the applicable statute’; (2)
     claims involving merger/double jeopardy; and (3) claims
     implicating the rule in Apprendi v. New Jersey, 530 U.S. 466
     […](2000).” Id.

Commonwealth v. Munday, 78 A.3d 661, 664 (Pa. Super. 2013).

     Appellant contends that

     [t]he trial court imposed an illegal sentence on Count 2 of the
     information in this case as it was greater than the statutory
     maximum. A conviction under 18 Pa.C.S. § 3126(a)(7), Indecent
     Assault where the victim is less than 13 years of age, was properly
     graded as a misdemeanor of the first degree in this case. When
     imposing sentence upon a first–degree misdemeanor conviction,
     the maximum sentence is 5 years. 18 Pa.C.S. § 1104(1). Further,
     any probationary term may not exceed the maximum term for
     which the defendant could be confined. 42 Pa.C.S. § 9754.
     However, the trial court in this case imposed a sentence of 1 to 2
     years of incarceration, followed by 5 years of probation, or a total
     sentence of seven years on this count. Because the sentence

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      exceeds the lawful maximum for this offense the sentence must
      be vacated and the case remanded for resentencing.

Appellant’s Brief at 32-33.      We find no fault in Appellant’s reasoning.

Appellant’s sentence is patently illegal.

      The Commonwealth contends that the orally imposed sentence was

legal, but was not properly transcribed in the written sentencing order.

Commonwealth’s Brief at 18-19. However, the trial court did not address this

matter in its Rule 1925(a) opinion, so we do not know whether the court

simply misspoke at sentencing, or whether there was a drafting error in the

written sentencing order. Nevertheless, the Commonwealth concedes that,

as it appears in the written sentencing order, Appellant’s sentence is illegal for

the reasons set forth in Appellant’s brief.        Id. at 19.     Moreover, the

Commonwealth concludes its brief by suggesting that “the case be remanded

for resentencing.” Id. at 20.

      Thus, because Appellant’s sentence for indecent assault is illegal as it

exceeds the statutory limits for that offense, we must vacate his sentence and

remand for resentencing.

      Judgment of sentence vacated.         Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/6/2019

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