Commonwealth v. McCauley, 613 WDA 2017

199 A.3d 947

COMMONWEALTH of Pennsylvania

v.Anthony MCCAULEY, Appellant

No. 613 WDA 2017

Superior Court of Pennsylvania.

Argued April 17, 2018

Filed November 28, 2018

Stephanie M. Noel, Public Defender, Pittsburgh, for appellant.

Michael W. Streily, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: BOWES, J., DUBOW, J., and MURRAY, J.

OPINION BY DUBOW, J.:

Appellant, Anthony McCauley, appeals from the Judgment of Sentence entered in the Allegheny County Court of Common Pleas, following his convictions after a jury trial for Rape of a Child, Involuntary Deviate Sexual Intercourse with a Child, Statutory Sexual Assault, Unlawful Contact with a Minor, Unlawful Restraint of a Minor, Indecent Assault of a person less than 13 years of age, two counts of Corruption of Minors, and Endangering the Welfare of Children.¹ After careful review, we again vacate Appellant's Judgment of Sentence, order the recusal of the trial court judge, and remand with instructions.

This Court previously set forth the underlying facts, so we will not repeat them here in detail. See Commonwealth v. McCauley , No. 380 WDA 2015, 2016 WL 2908318 (Pa. Super. filed May 17, 2016) (unpublished memorandum). In summary, Appellant sexually abused the child victim when she was six and twelve years old. In August 2013, the child victim disclosed Appellant's sexual abuse to her grandmother, who subsequently notified police.²

On November 13, 2014, a jury convicted Appellant of nine sexual offenses. The trial court imposed an aggregate term of twenty to forty years' incarceration. See N.T., 12/6/16, at 2. Appellant filed a direct appeal, challenging the sufficiency of the evidence to support his convictions and the legality of his sentence due to the imposition of an illegal mandatory minimum sentence pursuant to 42 Pa.C.S. § 9718. This Court affirmed Appellant's convictions, but vacated the Judgment of Sentence and remanded for further proceedings.

Significantly, we observed that the certified record on this first appeal to Superior Court was inconsistent and unclear about whether the trial court had actually imposed a mandatory minimum sentence. Commonwealth v. McCauley , No. 380 WDA 2015, unpublished memorandum at 8-9, 2016 WL 2908318 (Pa. Super. filed May 17, 2016). As a result, this Court instructed the trial court to clarify whether it had imposed a mandatory minimum sentence. In particular, Superior Court ordered the trial court as follows: (1) if the trial court imposed a mandatory minimum sentence pursuant to Section 9718, the trial court must "resentence Appellant without imposition of a mandatory minimum term[;]" or (2) if the trial court did not apply Section 9718, the trial court "shall re-impose Appellant's original sentence." Id. at 9.³

The trial court judge failed to follow the Superior Court Order. Rather, on December 6, 2016, the trial court conducted a brief and inadequate resentencing hearing. The trial court first stated that, when imposing the twenty- to forty-year sentence, it did not apply the mandatory minimum sentence pursuant to Section 9718. The trial court, however, ignored Superior Court's mandate of imposing the same sentence, and instead imposed a new sentence: an aggregate term of twenty years less two days of incarceration to forty years less four days of incarceration.⁴

Appellant filed a timely Post-Sentence Motion on December 9, 2016.⁵ He also filed a Motion for Recusal on February 7, 2017, challenging the trial court's impartiality. The trial court summarily denied the Motion for Recusal on March 8, 2017, and denied the Post-Sentence Motion on April 6, 2017.

Appellant filed a timely Notice of Appeal on April 21, 2017. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant raises five issues on appeal:

[1.] Did the trial court err in failing to grant [Appellant's] Motion for Recusal where, based on the totality of the circumstances, the trial court's impartiality reasonably could have been questioned and its failure to recuse tended to undermine public confidence in the administration of justice?

[2.] Does the trial court's failure to comply with this honorable Court's order for remand again necessitate remand?

[3.] Did the trial court err in determining that [Appellant] was not originally sentenced pursuant to the mandatory sentencing provisions of 42 Pa.C.S. § 9718 ?

[4.] Did the trial court err when it imposed a new discretionary sentence upon [Appellant] without affording him the full panoply of rights to which a criminal defendant is entitled at sentencing and without considering the factors it was statutorily required to consider under both 42 Pa.C.S. § 9721(b) and 42 Pa.C.S. § 9725 ?

[5.] Must the trial court's order designating [Appellant] as a sexually violent predator be vacated where the framework within which that designation was made was deemed unconstitutional by this honorable Court in Commonwealth v. Butler [, 173 A.3d 1212, 1214 (Pa. Super. 2017), appeal granted , 190 A.3d 581 (Pa. 2018) ]?

Appellant's Brief at 7-8 (reordered).

We first address Appellant's claim that the trial court improperly denied his Motion for Recusal. See id. at 45-52. We review the denial of a motion to recuse for an abuse of discretion, while "recognizing that the judge himself [or herself] is best qualified to gauge his [or her] ability to preside impartially." Commonwealth v. Harris , 979 A.2d 387, 392 (Pa. Super. 2009) (citations omitted). "A party seeking recusal bears the burden of producing evidence to establish bias, prejudice, or unfairness[,] which raises a substantial doubt as to the jurist's ability to preside impartially." Commonwealth v. Watkins , 630 Pa. 652, 108 A.3d 692, 734 (2014) (citations omitted).

"It is axiomatic that a fair tribunal is a basic requirement of due process." Caperton v. A.T. Massey Coal Co., Inc. , 556 U.S. 868, 876, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009) ; U.S. Const. Amend. XIV. The United States Supreme Court has recognized that a litigant's due process rights are violated when the circumstances of a judicial decision "g[i]ve rise to an unacceptable risk of actual bias." Williams v. Pennsylvania , ––– U.S. ––––, 136 S.Ct. 1899, 1908, 195 L.Ed.2d 132 (2016). Moreover, the appearance of bias or prejudice can be as damaging to public confidence in the administration of justice as the actual presence of bias or prejudice. Commonwealth v. Goodman , 454 Pa. 358, 311 A.2d 652, 654 (1973).

However, "simply because a judge rules against a defendant does not establish any bias on the part of the judge against that defendant." Commonwealth v. Travaglia , 541 Pa. 108, 661 A.2d 352, 367 (1995). Along the same lines, a judge's remark made during a hearing in exasperation at a party may be characterized as intemperate, but that remark alone does not establish bias or partiality. See Corbin v. Cowan , 716 A.2d 614, 619 (Pa. Super. 1998). In contrast, it is appropriate for a judge to recuse when the judge has publicly on numerous occasions expressed views about sentencing a class of defendants, ignoring the trial court's obligation to impose individual sentences on defendants. Commonwealth v. Lemanski , 365 Pa.Super. 332, 529 A.2d 1085 (1987) (holding that trial court should recuse when judge expressed his view publicly that he should sentence all drug offenders to the maximum penalty).

Similarly, when reviewing a motion for recusal, we may consider the cumulative effect of a judge's remarks and conduct in multiple cases, even if no single act creates an appearance of bias or impropriety. Commonwealth v. Rhodes , 990 A.2d 732, 748-49 (Pa. Super. 2009) (citation omitted).

After carefully reviewing the certified record before us, we agree that there is substantial evidence that the trial court judge demonstrated bias and personal animus against Appellant's counsel and the Public Defender's Office to such an extent that it "raises a substantial doubt as to the jurist's ability to preside impartially." Watkins , 108 A.3d at 734 (citations omitted).

We do not come to this conclusion lightly. It is important, however, to put this case in the context of several other cases in which Superior Court agreed with challenges to the trial court judge's sentencing decisions. On December 19, 2016, Superior Court issued its decision in Commonwealth v. Bernal , No. 138 WDA 2016, 2016 WL 7362624 (Pa. Super. filed Dec. 19, 2016) (unpublished memorandum). In that case, the trial court imposed consecutive, statutory maximum sentences on a sex offender. Superior Court reversed the trial court, expressing "our concern regarding the sentencing judge's failure to acknowledge the guidelines, and the imposed sentences' deviation from the guidelines." Id. at 16. Superior Court expressed further concern that "before imposing consecutive, statutory maximum sentences, the sentencing judge failed to request an updated PSI report, and failed to acknowledge or consider the rehabilitative needs of Bernal, as well as mitigating evidence." Id. at 16-17.

A few weeks later, on January 9, 2017, in Commonwealth v. A.S. , No. 1366 WDA 2015, 2017 WL 75866 (Pa. Super. filed Jan. 9, 2017) (unpublished memorandum), Superior Court again reversed an aggravated range sentence that this trial court judge imposed on a sex offender. Among the reasons supporting the Superior Court decision to reverse the sentencing decision was that the trial court judge "did not properly consider the various statutory sentencing factors, as the court had repeatedly relied on impermissible factors such as unreliable facts and misinformation ." Id. at 34 (emphasis added).

In highly unusual footnotes in both Bernal and A.S. , Superior Court noted that it was troubled with the trial court judge's biased decision-making process and inability to impose individualized sentences for sex offenders. Superior Court suggested that the Public Defender's Office file a Motion for Recusal on remand because Superior Court could not sua sponte order recusal. Bernal...