J-S58028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

JOHN CATAQUET,

                        Appellant                   No. 2029 MDA 2014


       Appeal from the Judgment of Sentence of February 22, 2010
          In the Court of Common Pleas of Lackawanna County
           Criminal Division at No(s): CP-35-CR-0001318-2008


BEFORE: GANTMAN, P.J., OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                        FILED FEBRUARY 03, 2016

     Appellant, John Cataquet, appeals from the judgment of sentence

entered on February 22, 2010.         After careful consideration, we are

constrained to vacate Appellant’s judgment of sentence and remand for

resentencing.

     The trial court ably explained the underlying facts of this case:

        [The victim, J.R., was born in April 1995 and] was [14]
        years old at the time of trial[. In 2001 or 2002, when J.R.
        was six years old,] Appellant began sexually abusing [her.
        N.T. Trial, 9/15/09, at 70.] Appellant knew J.R. through her
        aunt, to whom Appellant was married. Appellant would
        frequently babysit J.R. and her two younger brothers at
        [Appellant’s] house. . . . J.R. detailed the attic where
        Appellant would take her and her siblings while babysitting
        and where the [abuse] occurred. J.R. testified that . . .
        Appellant would take her into a small room in the attic,
        have her [lie] down on blankets[,] and touch her with [his]
        hands, mouth, and penis, and do what she described as
        “humping” – rub[bing] his body on hers back and forth with
        their clothes on. She testified that he digitally penetrated

* Retired Senior Judge assigned to the Superior Court
J-S58028-15


          her vagina [while] her pants [were] pulled down, kissed
          her, touched her vagina with his mouth, forced her to
          perform oral sex on him, and rubbed his penis on her
          vagina. . . . [J.R. testified that Appellant abused her in this
          manner “just about every[] day for about a year” – and that
          she was seven years old the “last [time she was] at that
          house that had the attic.” N.T. Trial, 9/15/09, at 81-83.
          Therefore, according to J.R., the last time Appellant could
          have abused her was in April 2003.]

          J.R. kept this [abuse] secret for years until March[] 2008,
          when she decided to come forward and report the abuse to
          the police. On March 24, 2008, J.R. was examined by Nurse
          Practitioner Sandra Federo at the Children’s Advocacy
          Center, who found that although there was no physical
          evidence of sexual assault, such a finding was consistent
          with the timing of the disclosure, as well as the type of
          abuse disclosed by J.R.

          On April 9, 2008, as part of his investigation into J.R.’s
          complaint, Detective Timothy Mayo of the Scranton Police
          Department contacted Appellant via telephone and
          requested an interview at the police station. On April 10,
          2008, Appellant was interviewed by Detective Mayo at the
          Scranton Police Department[. Appellant] was advised of his
          [Miranda1] rights[,] and [Appellant] then gave a written
          statement denying all of J.R.’s allegations. . . .

          The following day[,] . . . Appellant was [] questioned by
          Detective Lieutenant Joseph Lafferty as part of the
          investigation. Appellant admitted to and then signed a
          written statement [declaring] that he digitally penetrated
          J.R. twice, but [denied] ever exposing his penis to the
          victim, denied touching his penis to her vagina, den[ied]
          using his tongue on J.R.’s vagina, and denied ever forcing
          J.R. to perform oral sex on him.       In response to the
          detective questioning what else happened with J.R.,
          Appellant stated[,] “[i]t looked like she kind of liked it.
          Every time she came to the house, it felt like she wanted to
____________________________________________


1
    Miranda v. Arizona, 384 U.S. 436 (1966).




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J-S58028-15


           do it.” [Appellant] then agreed to take the detectives to the
           place where he violated J.R. He took them to a house on
           Albright Avenue.      At that point[,] the detectives took
           Appellant back to police headquarters and placed him under
           physical arrest and began booking procedures.

Trial Court Opinion, 10/15/15, at 1-4            (some   internal citations and

capitalization omitted).

         The Commonwealth later charged Appellant with two counts of

aggravated indecent assault of a person less than 13 years of age, two

counts of involuntary deviate sexual intercourse (hereinafter “IDSI”) with a

person less than 13 years of age, and one count each of indecent assault of

a person less than 13 years of age, endangering the welfare of children,

corruption of minors, and unlawful contact with a minor. 2 Commonwealth’s

Information, 6/20/08, at 1-3.

         Appellant proceeded to a jury trial where the above evidence was

presented. Moreover, during trial, J.R.’s mother testified she “le[ft J.R.] in

the care of [Appellant]” when J.R. was seven years old. N.T. Trial, 9/16/09,

at 95.

         On September 21, 2009, the jury found Appellant guilty of all charges.

Moreover, on the verdict slip, the jury specifically determined that




____________________________________________


2
   18 Pa.C.S.A. §§ 3125(a)(7), 3123(a)(6) (effective from 1995 until
February 6, 2003), 3126(a)(7), 4304(a), 6301(a)(1), and 6318(a)(1),
respectively.




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J-S58028-15



Appellant’s two aggravated indecent assaults on J.R. occurred “between

January [] 2002 [and] January 2003.” Verdict Slip, 9/22/09, at 1.

       On February 22, 2010, the trial court sentenced Appellant to serve an

aggregate term of 204 to 408 months in prison, followed by 16 years of

special probation. Specifically, the trial court sentenced Appellant to serve:

a mandatory minimum term of 36 to 72 months in prison (pursuant to 42

Pa.C.S.A. § 9718), plus two years of special probation, on both counts of

aggravated indecent assault of a person less than 13 years of age (18

Pa.C.S.A. § 3125(a)(7)); a mandatory minimum term of 66 to 132 months

in prison (pursuant to 42 Pa.C.S.A. § 9718), plus two years of special

probation, on both counts of IDSI upon a person less than 13 years of age

(18 Pa.C.S.A. § 3123(a)(6));3,        4
                                          and, two years of probation each on the
____________________________________________


3
  During sentencing, the trial court apparently believed that Appellant was
convicted of IDSI upon a person who was less than 16 years of age. See
N.T. Sentencing, 2/22/10, at 8.           This belief was, however, incorrect.
Indeed, at trial, the trial court instructed the jury as follows:

         The next count is involuntary deviate sexual intercourse
         with a child. A person commits involuntary deviate sexual
         intercourse with a child when the person engages in deviate
         sexual intercourse with a child who is less than 13 years of
         age.

                                            ...

         [I]t’s immaterial whether the child consented to the contact.
         The consent of a child is no defense.

         It is also no defense that the defendant did not know the
         age of the child or the child lied [about] her age or the
(Footnote Continued Next Page)


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J-S58028-15


                       _______________________
(Footnote Continued)

         defendant honestly believed that the child was 13 or older
         or that the defendant reasonably believed that the child was
         13 or older.

         Therefore, in order to find [Appellant] guilty of this offense
         you must find that the following two elements have been
         proven beyond a reasonable doubt:

         First, that [Appellant] engaged in deviate sexual intercourse
         with a child, namely, [J.R.].

         Second, that the child, [J.R.], was less than 13 years of age
         at the time the offense occurred.

N.T. Trial, 9/21/09, at 116-118.

Appellant did not object to this jury instruction. Therefore, when the jury
pronounced, in open court, that Appellant was guilty of “Count 3, involuntary
deviate sexual intercourse with a child” and “Count 4, involuntary deviate
sexual intercourse with a child,” the jury – in fact – found Appellant guilty of
IDSI with a person who was “less than 13 years of age.”                     See
Commonwealth v. Zlatovich, 269 A.2d 469, 473 (Pa. 1970) (“[t]he only
act performed by the jury to which any legal significance is attached is the
[r]endering of the verdict. The verdict as uttered is the sole embodiment of
the jury’s act”) (internal quotations and corrections omitted).              We
acknowledge that the Commonwealth’s information is fairly ambiguous with
respect to the IDSI charge – and that it can be read as supporting a charge
of IDSI upon an individual who is “less than 13 years of age” and IDSI upon
an individual who is “less than 16 years of age.”           See 18 Pa.C.S.A.
§ 3123(a)(6) (effective from 1995 until February 6, 2003); Commonwealth’s
Information, 6/20/08, at 1-2. Nevertheless, Appellant did not object to the
ambiguity in the information or to the trial court’s jury instruction. Further,
since the information supports the charge of IDSI upon an individual who is
“less than 13 years of age” and since Appellant was, in fact, found guilty of
IDSI upon an individual who is “less than 13 years of age,” we conclude that
Appellant was convicted of IDSI upon an individual who is “less than 13
years of age.”
4
 From 1995 until February 6, 2003, the IDSI statute – 18 Pa.C.S.A. § 3123
– defined the crime of “deviate sexual intercourse with a complainant . . .
who is less than 13 years of age,” at 18 Pa.C.S.A. § 3123(a)(6). 18
(Footnote Continued Next Page)


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J-S58028-15



charges of indecent assault of a person less than 13 years of age,

endangering the welfare of children, corruption of minors, and unlawful

contact with a minor. The trial court ordered each sentencing term to run

consecutively to one another.

      As noted above, the trial court utilized the mandatory minimum

sentencing statute found at 42 Pa.C.S.A. § 9718 to sentence Appellant to

mandatory minimum terms of imprisonment for the following convictions:

two counts of aggravated indecent assault of a person less than 13 years of

age (18 Pa.C.S.A. § 3125(a)(7)) and two counts of IDSI with a person less

than 13 years of age (18 Pa.C.S.A. § 3123(a)(6)).       The trial court never

specified the version of 42 Pa.C.S.A. § 9718 it employed when it sentenced

Appellant to the particular mandatory minimum terms.

      Appellant did not file a notice of appeal from his judgment of sentence.


                       _______________________
(Footnote Continued)

Pa.C.S.A. § 3123(a)(6) (effective from 1995 until February 6, 2003).
Effective February 7, 2003 until February 13, 2003, the legislature moved
the definition of the crime of “deviate sexual intercourse with a complainant
who is less than 13 years of age” to 18 Pa.C.S.A. § 3123(c). 18 Pa.C.S.A.
§ 3123(c) (effective from February 7, 2003 until February 13, 2003).
Finally, effective February 14, 2003, the legislature moved the crime of
“deviate sexual intercourse with a complainant who is less than 13 years of
age” to its current location at 18 Pa.C.S.A. § 3123(b). See 18 Pa.C.S.A.
§ 3123(b). Nevertheless, since the iterations of the statute constitute mere
re-numberings and do not change the substantive nature of the crime, for
purposes of this memorandum we will cite to the version of the IDSI statute
that was in effect from 1995 until February 6, 2003 – 18 Pa.C.S.A.
§ 3123(a)(6).




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J-S58028-15



      On January 9, 2011, Appellant filed a timely, pro se petition under the

Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.              See

Commonwealth        v.   Cataquet,    100   A.3d    302   (Pa.   Super.   2014)

(unpublished memorandum) at 3.          Although the PCRA court dismissed

Appellant’s PCRA petition without holding a hearing, this Court on appeal

vacated the PCRA court’s order and concluded that the PCRA court erred

when it dismissed the petition. In essence, we concluded that Appellant was

entitled to a hearing to determine whether his trial counsel was ineffective

for failing to file a direct appeal from the judgment of sentence. Id. at 19-

20.

      On remand, the PCRA court concluded that Appellant was entitled to

relief on his claim that his trial counsel was ineffective for failing to file a

direct appeal. Therefore, by order entered on November 18, 2014, the PCRA

court reinstated Appellant’s right to file a direct appeal nunc pro tunc.

Appellant filed a timely notice of appeal from his judgment of sentence. Now

on appeal, Appellant raises the following claims:

        [1.] Whether the trial court erred in permitting
        Commonwealth experts to testify as to their belief that the
        victim was being truthful in her accusations [against]
        Appellant?

        [2.] Whether Appellant was unlawfully sentenced pursuant
        to unconstitutional mandatory     minimum sentencing
        provisions?




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J-S58028-15



Appellant’s Brief at 7 (some internal capitalization omitted).5

        Appellant first claims that the trial court erred when it “permitt[ed two]

Commonwealth experts to testify as to their belief that the victim was being

truthful in her accusations [against] Appellant.” Appellant’s Brief at 7 and

15.     This claim is waived, as Appellant did not object to the alleged

inappropriate testimony at trial.        See N.T. Trial, 9/16/09, at 158-162 and

181-184; Commonwealth v. Pearson, 685 A.2d 551, 555 (Pa. Super.

1996) (“[f]ailure to raise a contemporaneous objection to the evidence at

trial waives that claim on appeal”); Pa.R.A.P. 302(a) (“[i]ssues not raised in

the lower court are waived and cannot be raised for the first time on

appeal”); see also Commonwealth v. Baumhammers, 960 A.2d 59, 73

(Pa. 2008) (holding that, where the appellant was required to lodge a

contemporaneous objection to the evidence at trial and failed to do so,

setting forth the issue in a post-sentence motion did not preserve the issue

on appeal).

        For Appellant’s second claim on appeal, he contends that his sentence

is illegal, as he was sentenced to four mandatory minimum terms of

imprisonment under 42 Pa.C.S.A. § 9718. Appellant’s Brief at 11. Appellant

bases his contention on Commonwealth v. Wolfe, 106 A.3d 800 (Pa.

Super. 2014), appeal granted, 121 A.3d 433 (Pa. 2015), where this Court

____________________________________________


5
    For ease of discussion, we have re-ordered Appellant’s claims on appeal.




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J-S58028-15



held that a version of Section 9718 that was in effect from January 1, 2007

until August 17, 2014, was unconstitutional in light of Alleyne v. United

States, ___ U.S. ___, 133 S.Ct. 2151 (2013) and Commonwealth v.

Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc).6

       We conclude that Appellant’s sentence is illegal, but not for the reason

cited by Appellant.         Rather, we conclude that the trial court illegally

sentenced Appellant to two mandatory minimum terms of imprisonment for

aggravated indecent assault of a person less than 13 years of age (18

Pa.C.S.A. § 3125(a)(7)), in violation of the prohibition against ex post facto

laws. We also conclude that Appellant’s two mandatory minimum sentences

for IDSI are not illegal in light of either Wolfe or Alleyne. Nevertheless,

since we conclude that Appellant’s two mandatory minimum terms of

imprisonment for aggravated indecent assault have caused his sentence to

be illegal, we must vacate these two sentencing terms. Further, since the

____________________________________________


6
  On August 12, 2015, our Supreme Court granted the Commonwealth’s
petition for allowance of appeal in Wolfe and agreed to consider the
following claim:

         Whether the Superior Court of Pennsylvania’s sua sponte
         determination that the ten year mandatory minimum
         sentence for involuntary deviate sexual intercourse (Person
         less than 16 years) imposed pursuant to 42 Pa.C.S.A.
         § 9718(a)(1) is facially unconstitutional is erroneous as a
         matter of law?

Commonwealth v. Wolfe, 121 A.3d 433 (Pa. 2015) (per curiam order).




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J-S58028-15



trial court ordered that all of Appellant’s sentences be served consecutively

to one another, it is likely that our disposition disturbs the trial court’s

overall sentencing scheme.       Therefore, we vacate Appellant’s entire

judgment of sentence and remand for resentencing. We will explain.

     As this Court has held, “[a]pplication of a mandatory minimum

sentence gives rise to illegal sentence concerns, even where the sentence is

within the statutory limits.” Commonwealth v. Watley, 81 A.3d 108, 118

(Pa. Super. 2013) (en banc).      “Legality of sentence questions are not

waivable and may be raised sua sponte by this Court.” 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. Ali, 112 A.3d 1210, 1225 (Pa. Super. 2015) (internal

corrections omitted).

     The mandatory minimum sentencing statute in this case – 42

Pa.C.S.A. § 9718 – was originally enacted on December 30, 1982, with the

legislation effective 60 days from the date of enactment. Section 9718 was

then amended in 1995, 2004, 2006, and 2014. In this case, the trial court

did not identify the version (or versions) of Section 9718 that it applied

when it sentenced Appellant.    Nevertheless, it is apparent that, when the

trial court sentenced Appellant to serve the two mandatory minimum terms

of imprisonment for aggravated indecent assault of a person less than 13

years of age (18 Pa.C.S.A. § 3125(a)(7)), the trial court employed the

version of Section 9718 that was in effect from November 30, 2004 until

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J-S58028-15



December 31, 2006.7         This conclusion is a result of several factors.   First,

the version of Section 9718 that was in effect from November 30, 2004 until

December 31, 2006 provides for the penalties that Appellant actually

received for his aggravated indecent assault convictions.        Specifically, the

version of Section 9718 that was in effect from November 30, 2004 until

December 31, 2006 provides:

         (a) Mandatory sentence.—

                                           ...

         (3) A person convicted of the following offenses shall be
         sentenced to a mandatory term of imprisonment as follows:

              18 Pa.C.S. § 3125(a)(7) – not less than two and one-
              half years.

42 Pa.C.S.A. § 9718 (effective from November 30, 2004 until December 31,

2006).

       This version of Section 9718 thus corresponds with Appellant’s

sentences of three to six years’ imprisonment for aggravated indecent

assault of a person less than 13 years of age (18 Pa.C.S.A. § 3125(a)(7)).

       Second, when Section 9718 was amended in 2004, the legislature

specifically declared that 42 Pa.C.S.A. § 9718(a)(3) – which established the

____________________________________________


7
  Appellant has failed to identify the version of Section 9718 under which he
was sentenced and Appellant has never claimed that the trial court
committed any error in sentencing him under the particular version of
Section 9718 that it did. See Appellant’s Brief at 11-15.




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J-S58028-15



mandatory minimum sentence for aggravated indecent assault of a person

less than 13 years of age (18 Pa.C.S.A. § 3125(a)(7)) – would have

retroactive effect. In particular, the Act of November 30, 2004, P.L. 1703,

No. 217, § 6 declares:        “[t]he addition of 42 Pa.C.S.A. § 9718(a)(3) shall

apply to individuals sentenced on or after the effective date of this section.”

Act of November 30, 2004, P.L. 1703, No. 217, § 6.             Therefore, since

Appellant was sentenced “on or after” November 30, 2004, the legislation

declared that the trial court must apply Section 9718(a)(3) to Appellant’s

conviction for aggravated indecent assault of a person less than 13 years of

age (18 Pa.C.S.A. § 3125(a)(7)).

       Third, under the prior version of 42 Pa.C.S.A. § 9718 – which was in

effect from 1995 until November 29, 2004 – the statute did not provide a

mandatory minimum punishment for violation of aggravated indecent assault

of a person less than 13 years of age (18 Pa.C.S.A. § 3125(a)(7)).8 See 42

Pa.C.S.A. § 9718(a) (effective from 1995 until November 29, 2004) (“A

person convicted of the following offenses when the victim is less than 13

years of age shall be sentenced to a mandatory term of imprisonment as
____________________________________________


8
  We note that, at the time Appellant committed the aggravated indecent
assault upon J.R., aggravated indecent assault upon a complainant who is
less than 13 years of age was codified at 18 Pa.C.S.A. § 3125(7). See 18
Pa.C.S.A. § 3125(7) (effective from 1995 until February 6, 2003). However,
the version of 42 Pa.C.S.A. § 9718 which was in effect from 1995 until
November 29, 2004 also did not provide a penalty for violation of 18
Pa.C.S.A. § 3125(7).




                                          - 12 -
J-S58028-15



follows: . . . 18 Pa.C.S. 3125(1) through (6) (relating to aggravated

indecent assault) – not less than two and one-half years”) (emphasis

added).       Therefore, since Appellant received a mandatory minimum

sentence for violating 18 Pa.C.S.A. § 3125(a)(7), the trial court could not

have sentenced Appellant under the version of Section 9718 that was in

effect from 1995 until November 29, 2004.

     Finally, the version of Section 9718 that was in effect at the time of

sentencing provided far more severe mandatory minimum prison terms for

aggravated indecent assault than what Appellant received.          See 42

Pa.C.S.A. § 9718(a) (effective from January 1, 2007 until August 17, 2014)

(providing:    “(3) A person convicted of the following offenses shall be

sentenced to a mandatory term of imprisonment as follows: . . . 18 Pa.C.S.

§ 3125(a)(7) – not less than five years”) (emphasis added).

     As such, with respect to Appellant’s sentences for aggravated indecent

assault of a person less than 13 years of age (18 Pa.C.S.A. § 3125(a)(7)),

the trial court could only have applied the version of Section 9718 that was

in effect from November 30, 2004 until December 31, 2006.

     In the case at bar, however, the jury concluded that Appellant

committed the aggravated indecent assaults upon J.R. “between January

[] 2002 [and] January 2003.”        Verdict Slip, 9/22/09, at 1 (emphasis

added).   Further, as noted above, at the time Appellant committed the

aggravated indecent assaults upon J.R., Section 9718 did not provide for any

mandatory minimum sentence for the violation of 18 Pa.C.S.A. § 3125(a)(7).

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J-S58028-15



See 42 Pa.C.S.A. § 9718(a) (effective from 1995 until November 29, 2004)

(“A person convicted of the following offenses when the victim is less than

13 years of age shall be sentenced to a mandatory term of imprisonment as

follows: . . . 18 Pa.C.S. 3125(1) through (6) (relating to aggravated

indecent assault) – not less than two and one-half years”) (emphasis

added). Because the trial court imposed a mandatory minimum sentence for

aggravated indecent assault of a person who is less than 13 years of age (18

Pa.C.S.A. § 3125(a)(7)) that did not exist at the time Appellant committed

his offenses, Appellant’s mandatory minimum sentences for aggravated

indecent assault of a person who is less than 13 years old (18 Pa.C.S.A.

§ 3125(a)(7)) are in violation of the prohibition against ex post facto laws

and are illegal. Commonwealth v. Rose, ___ A.3d ___, 2015 WL 7283338

(Pa. 2015) (holding that “a defendant convicted of third-degree murder must

be sentenced under the sentencing statute in effect at the time the

defendant committed the ultimately deadly assault upon the victim,” and not

under the sentencing statute that existed at the time the victim actually

died, some 14 years later); Alleyne v. United States, ___ U.S. ___, 133

S.Ct. 2151, 2160-2161 (2013) (“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”).

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J-S58028-15



We must therefore vacate Appellant’s sentences for aggravated indecent

assault of a person less than 13 years of age (18 Pa.C.S.A. § 3125(a)(7)).

       With respect to Appellant’s IDSI convictions, J.R. specifically testified:

that she was six years old when Appellant began molesting her; that

Appellant abused her “just about every[] day for about a year;” and, that

she was seven years old the “last [time she was] at that house that had the

attic.” N.T. Trial, 9/15/09, at 81-83. Since J.R. was born in April 1995, the

last time Appellant could have committed IDSI upon J.R. was April 2003.

However, the version of 42 Pa.C.S.A. § 9718 that was in effect from 1995

until November 29, 2004 and the version of 42 Pa.C.S.A. § 9718 that was in

effect from November 30, 2004 until December 31, 2006 provide the same

mandatory minimum punishment for the offense of IDSI.             Given this, we

shall treat the trial court’s sentencing order as imposing the sentencing

provisions included within the version of Section 9718 that was in effect

from 1995 until November 29, 2004. In this connection, we note that, not

only   do   Appellant’s   sentences   of   five-and-a-half   to   eleven    years’

imprisonment for IDSI with a person less than 13 years of age (18 Pa.C.S.A.

§ 3123(a)(6)) correspond with the version of 42 Pa.C.S.A. § 9718 that was

in effect from 1995 until November 29, 2004, but the version of 42 Pa.C.S.A.

§ 9718 that was in effect at the time of sentencing provided far more severe

mandatory minimum prison terms than what Appellant received.               See 42

Pa.C.S.A. § 9718(a) (effective from January 1, 2007 until August 17, 2014)

(providing: “[a] person convicted of the following offenses when the victim

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J-S58028-15



is under 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”).9    Therefore, with

respect to Appellant’s two mandatory minimum sentences for IDSI, we

conclude that the trial court applied the version of 42 Pa.C.S.A. § 9718 that

was in effect from 1995 until November 29, 2004.

       We must now determine whether Appellant’s mandatory minimum

sentences for IDSI with a person who is less than 13 years of age are illegal

____________________________________________


9
  Again, we note that the penalties for IDSI were identical under the version
of Section 9718 that was in effect from 1995 until November 29, 2004 and
the version of Section 9718 that was in effect from November 30, 2004 until
December 31, 2006. Compare 42 Pa.C.S.A. § 9718 (effective from 1995
until November 29, 2004) (“[a] person convicted of the following offenses
when the victim is under 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 five years”); 42
Pa.C.S.A. § 9718 (effective from November 30, 2004 until December 31,
2006) (same).

Further, the trial court’s error at sentencing – where the trial court
concluded that Appellant was convicted of IDSI of a person who was “less
than 16 years of age” when the jury, in fact, found Appellant guilty of IDSI
with a person who was “less than 13 years of age” – is harmless in light of
the fact that both versions of 42 Pa.C.S.A. § 9718 provide a five-year
mandatory minimum sentence for violating “18 Pa.C.S. § 3123 (relating to
involuntary deviate sexual intercourse) . . . when the victim is under 16
years of age.” Compare 42 Pa.C.S.A. § 9718 (effective from 1995 until
November 29, 2004) (“[a] person convicted of the following offenses when
the victim is under 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 five years”); 42 Pa.C.S.A. § 9718
(effective from November 30, 2004 until December 31, 2006) (same).




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in light of Wolfe and Alleyne.10 In this case, Appellant was sentenced to

two mandatory minimum terms of imprisonment for IDSI, under the version

of Section 9718 that was in effect from 1995 until November 29, 2004 – and

not under the version of the statute that this Court held unconstitutional in

Wolfe. Further, the version of Section 9718 that was effective from 1995

until November 29, 2004 did not contain any provision or subsection that the

Wolfe Court later held unconstitutional. Therefore, we conclude that Wolfe

does not control this case and that Wolfe does not invalidate the version of

Section 9718 under which Appellant was sentenced.              Hence, Appellant’s

sentence is not illegal under Wolfe.           We also conclude that Appellant’s

sentence is not illegal in light of Alleyne. We will explain.

       In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States

Supreme Court held: “[o]ther than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” Apprendi, 530 U.S. at 489. Further, in Alleyne, the United States

Supreme Court expanded “Apprendi’s basic jury-determination rule to

mandatory minimum sentences.”             Alleyne, ___ U.S. at ___, 133 S.Ct. at

2167 (Breyer, J., concurring).          Specifically, the Alleyne Court held that,
____________________________________________


10
   We need not undertake any Alleyne analysis for Appellant’s aggravated
indecent assault convictions, as we have found that there is no statutory
mandatory minimum punishment that applies to those offenses. See supra.




                                          - 17 -
J-S58028-15



where an “aggravating fact” increases a mandatory minimum sentence, “the

fact is an element of a distinct and aggravated crime.     [The fact] must,

therefore, be submitted to the jury and found beyond a reasonable doubt.”

Alleyne, 133 S.Ct. at 2162-2163. The Alleyne Court explained:

       It is indisputable that a fact triggering a mandatory
       minimum alters the prescribed range of sentences to which
       a criminal defendant is exposed. . . . And because the
       legally prescribed range is the penalty affixed to the crime .
       . . it follows that a fact increasing either end of the range
       produces a new penalty and constitutes an ingredient of the
       offense. . . .

       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 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
       . . . and found beyond a reasonable doubt.


                                   - 18 -
J-S58028-15



Alleyne, 113 S.Ct. at 2160-2161 and 2163 (emphasis in original) (internal

quotations, citations, and parenthetical information omitted).

      At the time Alleyne was decided, many of Pennsylvania’s mandatory

minimum sentencing statutes were written in an identical format.         As an

example of this format, we shall quote the mandatory minimum sentencing

statute found at 18 Pa.C.S.A. § 7508. In relevant part, 18 Pa.C.S.A. § 7508

provides:

        (a) General rule.--Notwithstanding any other provisions of
        this or any other act to the contrary, the following
        provisions shall apply:

            (1) A person who is convicted of [possessing a
            controlled substance with the intent to deliver] where
            the controlled substance is marijuana shall, upon
            conviction, be sentenced to a mandatory minimum term
            of imprisonment and a fine as set forth in this
            subsection:

               (i) when the amount of marijuana involved is at least
               two pounds, but less than ten pounds, or at least ten
               live plants but less than 21 live plants; one year in
               prison and a fine of $5,000 or such larger amount as
               is sufficient to exhaust the assets utilized in and the
               proceeds from the illegal activity . . .

                                     ...

        (b) Proof of sentencing.--Provisions of this section shall
        not be an element of the crime. Notice of the applicability 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 sentencing. The court
        shall consider evidence presented at trial, shall afford the
        Commonwealth and the defendant an opportunity to


                                    - 19 -
J-S58028-15


        present necessary additional evidence and shall determine,
        by a preponderance of the evidence, if this section is
        applicable.

        (c) Mandatory sentencing.--There shall be no authority
        in any court to impose on an offender to which this section
        is applicable a lesser sentence than provided for herein or to
        place the offender on probation, parole or work release or to
        suspend sentence. Nothing in this section shall prevent the
        sentencing court from imposing a sentence greater than
        provided herein. Sentencing guidelines promulgated by the
        Pennsylvania Commission on Sentencing shall not
        supersede the mandatory sentences provided herein. . . .

        (d) Appellate review.--If a sentencing court refuses to
        apply this section where applicable, the Commonwealth
        shall have the right to appellate review of the action of the
        sentencing court. The appellate court shall vacate the
        sentence and remand the case to the sentencing court for
        imposition of a sentence in accordance with this section if it
        finds that the sentence was imposed in violation of this
        section. . . .

18 Pa.C.S.A. § 7508.

     Following Alleyne, mandatory minimum sentencing statutes that

followed the above format were generally deemed unconstitutional, as they

provided that: the “aggravating facts” contained in the mandatory minimum

statute were not elements of the crime; notice of either the “aggravating

facts” or of the applicability of the mandatory minimum sentencing statute

was not required prior to conviction; the applicability of the mandatory

minimum statute was to be determined at sentencing; the Commonwealth

need only prove the “aggravating facts” by a preponderance of the evidence;

a judge – and not a jury – was to act as the fact-finder for purposes of

determining the “aggravated facts;” and, if the “sentencing court refuse[d]



                                    - 20 -
J-S58028-15



to   apply [the   mandatory        minimum      sentence] where        applicable, the

Commonwealth shall have the right to appellate review of the actions of the

sentencing court.”       See, e.g., 18 Pa.C.S.A. § 7508(a)-(d); see also

Commonwealth v. Mosley, 114 A.3d 1072 (Pa. Super. 2015) (holding that

18    Pa.C.S.A.   § 7508      is    unconstitutional      in   light    of   Alleyne);

Commonwealth v. Fennell, 105 A.3d 13 (Pa. Super. 2014) (holding that

Alleyne renders 18 Pa.C.S.A. § 7508 unconstitutional in its entirety); see

also Commonwealth v. Hopkins, 117 A.3d 247, 258-259 (Pa. 2015)

(“[a]fter Alleyne, these aspects of the statute – that the provisions are

declared not to be elements of the offense, that notice is not required prior

to conviction, that factfinding is conducted at sentencing, that the

sentencing court performs factfinding, that the applicable standard is

preponderance of the evidence, and that the Commonwealth has the right to

appeal where the imposed sentence was found to be in violation of the

statute – are now infirm”).

      Further, in Newman, an en banc panel of this Court held that the

above-summarized, unconstitutional provisions of Pennsylvania’s mandatory

minimum sentencing statutes were not severable from the remaining, valid

provisions of the statutes.         Therefore, Newman held that mandatory

minimum     sentencing     statutes    such     as   18   Pa.C.S.A.     § 7508   were

unconstitutional in their entirety.      Newman, 99 A.3d at 86.              Later, in

Hopkins, our Supreme Court agreed with Newman and held that




                                       - 21 -
J-S58028-15



mandatory minimum sentencing statutes such as 18 Pa.C.S.A. § 7508 were

wholly unconstitutional. Hopkins, 117 A.3d at 247.

       In Commonwealth v. Wolfe, a panel of this Court extended

Newman and held that a version of 42 Pa.C.S.A. § 9718, which was in

effect from January 1, 2007 until August 17, 2014, was unconstitutional

under Alleyne.11       Wolfe, 106 A.3d at 805.         In Wolfe, the 18-year-old

defendant had sexual intercourse with a 13-year old female; he was then

charged with and convicted of IDSI with a person less than 16 years of age,

pursuant to 18 Pa.C.S.A. § 3123(a)(7).             Wolfe, 106 A.3d at 805.   18

Pa.C.S.A. § 3123(a)(7) provides:

         A person commits a felony of the first degree when the
         person engages in deviate sexual intercourse with a
         complainant:

                                           ...

              (7) 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.

18 Pa.C.S.A. § 3123(a)(7).

       Following Mr. Wolfe’s conviction, the trial court sentenced him to a

mandatory minimum, ten-year term of imprisonment for the IDSI conviction,

pursuant to the version of 42 Pa.C.S.A. § 9718 that was in effect from

____________________________________________


11
  At the time Wolfe was decided, our Supreme Court had yet to decide
Hopkins.




                                          - 22 -
J-S58028-15



January 1, 2007 until August 17, 2014. See Wolfe, 106 A.3d at 800. In

relevant part, this version of Section 9718 read:

        (a) Mandatory sentence.—

        (1) A person convicted of the following offenses when the
        victim is under 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
        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.

        (d) Authority of court in sentencing.--There shall be no
        authority in any court to impose on an offender to which
        this section is applicable any lesser sentence than provided
        for in subsection (a) or to place the offender on probation or
        to suspend sentence. Nothing in this section shall prevent
        the sentencing court from imposing a sentence greater than
        that provided in this section.         Sentencing guidelines
        promulgated      by   the    Pennsylvania Commission       on
        Sentencing shall not supersede the mandatory sentences
        provided in this section.

        (e) Appeal by Commonwealth.--If a sentencing court
        refuses to apply this section where applicable, the

                                    - 23 -
J-S58028-15


        Commonwealth shall have the right to appellate review of
        the action of the sentencing court. The appellate court shall
        vacate the sentence and remand the case to the sentencing
        court for imposition of a sentence in accordance with this
        section if it finds that the sentence was imposed in violation
        of this section.

42 Pa.C.S.A. § 9718 (effective from January 1, 2007 until August 17, 2014).

     On direct appeal, a panel of this Court sua sponte considered whether

Section 9718 was unconstitutional, and whether Mr. Wolfe’s sentence was

illegal, in light of Newman and Alleyne. Wolfe, 106 A.3d at 801-802.

     To begin, the Wolfe Court was cognizant that the “aggravating fact,”

which triggered Mr. Wolfe’s mandatory minimum sentence for IDSI, was that

the victim was “under 16 years of age” – and that this particular aggravating

fact was “also contained as an element within the subsection of the IDSI

statute under which [Mr. Wolfe] was convicted.” Wolfe, 106 A.3d at 805;

see also 18 Pa.C.S.A. § 3123(a)(7) (“[a] person commits a felony of the

first degree when the person engages in deviate sexual intercourse with a

complainant . . . who is less than 16 years of age”). Thus, the Wolfe Court

observed, “in order to convict [Mr. Wolfe] of IDSI, the Commonwealth was

already required to prove beyond a reasonable doubt that the victim was

less than 16 years old.” Wolfe, 106 A.3d at 805.

     However, the mandatory minimum sentencing statute at issue in

Wolfe followed the same format that was seen in many of Pennsylvania’s

mandatory minimum sentencing statutes – and the format that the

Newman     Court   had   already   concluded   was   fatally   unconstitutional.

Specifically, the version of 42 Pa.C.S.A. § 9718, which was in effect from

                                    - 24 -
J-S58028-15



January 1, 2007 until August 17, 2014, provided that:        the “aggravating

facts” contained in the mandatory minimum statute were not elements of

the crime; notice of either the “aggravating facts” or of the applicability of

the mandatory minimum sentencing statute was not required prior to

conviction; the applicability of the mandatory minimum statute was to be

determined at sentencing; the Commonwealth need only prove the

“aggravating facts” by a preponderance of the evidence; a judge – and not a

jury – was to act as the fact-finder for purposes of determining the

“aggravated facts;” and, if the “sentencing court refuse[d] to apply [the

mandatory minimum sentence] where applicable, the Commonwealth shall

have the right to appellate review of the actions of the sentencing court.”

42 Pa.C.S.A. § 9718(c)-(e) (effective from January 1, 2007 until August 17,

2014).

      As the Wolfe Court held, since Alleyne rendered the above provisions

unconstitutional and since Section 9718 followed “the same format as the

[mandatory minimum sentencing] statute[] [that was] struck down as

facially unconstitutional in Newman,” the Wolfe Court, too, was required to

conclude that Section 9718 was facially unconstitutional. Wolfe, 106 A.3d

at 805. The Wolfe Court explained:

         in this case, although the jury was required to find that the
         victim was less than 16 years of age in order to convict [Mr.
         Wolfe], we cannot ignore the binding precedent from an en
         banc decision of this Court.      Newman stands for the
         proposition that mandatory minimum sentence statutes in
         Pennsylvania of this format are void in their entirety. As


                                    - 25 -
J-S58028-15


        Section 9718 is indistinguishable from the statute[] struck
        down in Newman . . . , 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.

Wolfe, 106 A.3d at 806 (some internal citations omitted).

      In the case at bar, Appellant claims that he is entitled to relief simply

because the Wolfe Court struck down the particular version of Section 9718

that was at issue in that case. Appellant’s Brief at 14. Yet, as was explained

above, Appellant was not sentenced under the version of Section 9718 that

was struck down in Wolfe.       Rather, the trial court sentenced Appellant

under the version of Section 9718 that was in effect from 1995 until

November 29, 2004. In relevant part, this version read:

        (a) Mandatory sentence.—

        (1) A person convicted of the following offenses when the
        victim is under 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 five years.

42 Pa.C.S.A. § 9718 (effective from 1995 until November 29, 2004).

      As can be seen, the version of Section 9718 that was in effect from

1995 until November 29, 2004 did not follow the “same format” as the

version of Section 9718 that the Wolfe Court struck down – and it did not

follow “the same format as the [mandatory minimum sentencing] statute[]

[that was] struck down as facially unconstitutional in Newman.”         Wolfe,



                                    - 26 -
J-S58028-15



106 A.3d at 805. Rather, the version of Section 9718 under which Appellant

was sentenced is spartan: it simply states the “aggravating fact” (which is

also an element of the crime) and then specifies the punishment for

violation. Moreover, the version of Section 9718 under which Appellant was

sentenced does not contain any provision that the Newman, Wolfe, or

Hopkins Courts concluded were unconstitutional.              Specifically, the version

of Section 9718 that was in effect from 1995 until November 29, 2004 does

not contain any provision declaring:               “that the [aggravating facts] are

declared not to be elements of the offense, that notice is not required prior

to conviction, that factfinding is conducted at sentencing, that the

sentencing court performs factfinding, that the applicable standard is

preponderance of the evidence, [or] that the Commonwealth has the right to

appeal where the imposed sentence was found to be in violation of the

statute.”12 Hopkins, 117 A.3d at 258-259.

       Therefore, we conclude that Wolfe does not control this case and that

Wolfe does not invalidate the version of Section 9718 under which Appellant

was sentenced.       Appellant’s sentences for IDSI are thus not illegal under

Wolfe.
____________________________________________


12
   Further, with respect to Appellant’s sentences for IDSI, our analysis would
not change even if the trial court had sentenced Appellant under the version
of Section 9718 that was in effect from November 30, 2004 until December
31, 2006. To be sure, 42 Pa.C.S.A. § 9718(c), (d), and (e) did not become
effective until January 1, 2007.




                                          - 27 -
J-S58028-15



       We also conclude that Appellant’s sentences for IDSI are not illegal

under Alleyne.13        In this case, Appellant was convicted of IDSI with a

person less than 13 years of age (18 Pa.C.S.A. § 3123(a)(6)). This statute

provides:

         § 3123. Involuntary deviate sexual intercourse.

         (a) Offense defined.--A person commits a felony of the first
         degree when the person engages in deviate sexual
         intercourse with a complainant:

                                           ...

              (6) who is less than 13 years of age[.]

18 Pa.C.S.A. § 3123(a)(6) (effective from 1995 until February 6, 2003).

       Appellant’s mandatory minimum sentence for IDSI was triggered

simply by virtue of the fact that the “victim [wa]s under 16 years of age” –

and this fact was an element of Appellant’s conviction for IDSI with a person

who is “less than 13 years of age.”            42 Pa.C.S.A. § 9718(a)(1) (effective

____________________________________________


13
   Although Appellant’s direct appeal was not literally pending at the time
Alleyne was decided, it is well-settled that Appellant is entitled to whatever
benefit the constitutional rule announced in Alleyne would bring him, as this
is a nunc pro tunc direct appeal from Appellant’s judgment of sentence.
Commonwealth v. Little, 248 A.2d 32 (Pa. 1968) (the appellant was
entitled to benefit from the rule announced in the 1966 Miranda decision, in
a “nunc pro tunc [direct] appeal of a case tried on April 17, 1964”);
Commonwealth v. McCloud, 383 A.2d 894 (Pa. 1978) (“[the Pennsylvania
Supreme Court] has held that the [Commonwealth v. McCutchen, 343
A.2d 669 (Pa. 1975)] line of cases is to be applied to cases on direct appeal.
The same is true where, by post conviction relief, a petitioner is granted a
direct appeal as if timely filed as here”); Commonwealth ex rel. Smith v.
Meyers, 261 A.2d 550 (Pa. 1970).



                                          - 28 -
J-S58028-15



from 1995 until November 29, 2004) (“[a] person convicted of the following

offenses when the victim is under 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 five years”). Thus,

in this case, Appellant had notice, “ex ante, [of] the contours of the penalty

that the legislature affixed to” his crimes and application of the mandatory

minimum     sentencing   statute   was   dependent   solely   upon   Appellant’s

conviction for the crimes at trial, by a jury, based upon proof of all facts

beyond a reasonable doubt.     Alleyne, 113 S.Ct. at 2160-2161 and 2163.

Appellant’s mandatory minimum sentences for IDSI thus do not offend

Alleyne and Appellant’s sentences for IDSI are not illegal. Appellant’s claim

to the contrary fails.

      However, since the trial court ordered that all of Appellant’s sentences

be served consecutive to one another, our action – in vacating Appellant’s

sentences for aggravated indecent assault of a person less than 13 years of

age (18 Pa.C.S.A. § 3125(a)(7)) – might have disturbed the trial court’s

overall sentencing scheme.    Therefore, we vacate Appellant’s judgment of

sentence and remand for resentencing. Commonwealth v. Williams, 997

A.2d 1205, 1210-1211 (Pa. Super. 2010) (“if a correction by this Court may

upset the sentencing scheme envisioned by the trial court, the better

practice is to remand [for resentencing]”) (internal quotations, citations, and

corrections omitted).




                                     - 29 -
J-S58028-15



      Judgment of sentence vacated.        Case remanded for resentencing.

Jurisdiction relinquished.

      President Judge Gantman joins this memorandum.

      Judge Platt files a Concurring and Dissenting Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2016




                                  - 30 -
