Commonwealth v. Pope, 1778 WDA 2018

216 A.3d 299

COMMONWEALTH of Pennsylvania

v.Gerald W. POPE, Appellant

No. 1778 WDA 2018

Superior Court of Pennsylvania.

Submitted May 6, 2019

Filed July 29, 2019

John R. Thomas, Ridgway, for appellant.

Stephanie L. Vettenburg-Shaffer, Assistant District Attorney, Smethport, for Commonwealth, appellee.

BEFORE: OLSON, J., OTT, J., and COLINS^* , J.

OPINION BY COLINS, J.:

Appellant, Gerald W. Pope, appeals from the order that denied his first petition filed under the Post Conviction Relief Act (PCRA).¹ Upon review, we conclude that the trial court imposed an illegal sentence as to the unlawful contact with a minor offense.² We therefore reverse the PCRA court's order, vacate Appellant's judgment of sentence, and remand for resentencing.

This Court previously summarized the factual and procedural history of this appeal as follows:

K.H., who was born in December 1999, lived with her biological mother and her mother's boyfriend, Appellant, from the time she was three years old until she turned thirteen. N.T., 3/24/14, at 23. In January 2013, K.H. began dating B.V. Id. at 23-24. Appellant did not approve of the relationship. Id. at 26.

K.H. eventually confided in a friend that Appellant told K.H. that she would have to perform various sexual acts for Appellant in order to obtain permission to see her boyfriend. N.T., 3/24/14, at 24-25, 26, 41. At trial, K.H. testified that Appellant advised her of the following options if she wanted to see her boyfriend or friends, and the time that would accordingly be allotted: "He said one [hand job] would be for two hours, two would be four and a blow job would be the whole day." Id. at 26. K.H. testified that she gave Appellant a "hand job" in January 2013, in order to see her boyfriend. Id. at 29. She testified that this occurred after school and that she and Appellant were the only two people at home at the time. Id. at 29-30. She also testified that after performing this act, she was permitted to see her boyfriend, but that after two hours with her boyfriend elapsed, Appellant proceeded to the boyfriend's house and, standing outside, texted K.H., advising her that it was time to leave. Id. at 35-36.

K.H. further testified that she subsequently gave Appellant "hand jobs" on multiple occasions in order to see her boyfriend. N.T., 3/24/14, at 37. K.H. stated that no one else was in the home during these occasions that occurred after school. Id. at 37. K.H. also testified that on one occasion, Appellant "tried sticking [his penis] up my butt." Id. at 37.

K.H. testified that the first person she told about these incidents, approximately six months after they began, was her friend, E.K. N.T., 3/24/14, at 41. Although K.H. did not tell her father about these incidents, he indirectly found out after E.K. confided in another friend. Id. at 41-42. Upon learning of these assertions, K.H.'s father took her to the police station in order to report the incidents. Id. at 41-42.

Appellant was charged with one count of criminal attempt of involuntary deviate sexual intercourse [ (IDSI) ]; one count of aggravated [indecent] assault; one count of indecent assault; one count of unlawful contact with a minor and one count of corruption of minors.^[3] Amended Information, 3/21/14, at 1-2. Following a jury trial, Appellant was convicted of unlawful contact with a minor and corruption of minors. He was found not guilty of the other charges.

Appellant was sentenced on August 7, 2014, to a period of incarceration of 62-124 months. He timely appealed on September 2, 2014.

Commonwealth v. Pope , No. 1486 WDA 2014, unpublished memorandum at 1-3 (Pa. Super. filed June 1, 2015). This Court affirmed Appellant's conviction in a June 1, 2015 decision. Id. at 7-10. Appellant did not seek our Supreme Court's review of this Court's decision.

On January 13, 2016, Appellant filed his first, timely, pro se PCRA petition. On August 25, 2016, the PCRA court appointed counsel for Appellant in the PCRA proceedings. Appellant's first and second appointed counsel both withdrew from representation of Appellant, and, on April 26, 2017, the PCRA court appointed Appellant's current PCRA counsel, John Thomas, Esq. and granted him leave to file an amended PCRA petition. On August 15, 2017, Appellant, through his counsel, filed an amended petition alleging that he was denied effective assistance of counsel by his trial counsel based on his failure to file a request for a bill of particulars that would have cured deficiencies in the criminal information. The Commonwealth answered the amended PCRA petition, and Appellant then filed a motion for leave to amend the PCRA petition on November 28, 2017 to include an argument that, in the sentencing order, the trial court erroneously required Appellant to register for life under the Sex Offender Registration and Notification Act (SORNA)⁴ when in fact he should only have been required to register for 25 years as a Tier II offender. The PCRA court granted Appellant leave to amend his PCRA petition on June 20, 2018, and directed the parties file briefs on this additional issue. On July 18, 2018, Appellant filed a second motion for leave to amend the PCRA petition to include the argument that the trial court incorrectly graded the unlawful contact with a minor charge as a felony of the first degree. In a July 24, 2018 order, the PCRA court granted Appellant leave to amend and directed further briefs to be filed on this issue.

On November 15, 2018, the PCRA court entered an opinion and order granting in part and denying in part the PCRA petition. The PCRA court rejected Appellant's argument concerning the grading of the unlawful contact with a minor charge, concluding that Appellant's trial counsel was not ineffective for not objecting to the grading of the unlawful contact charge because he had an objectively reasonable basis for not challenging the grading on the unlawful contact count. PCRA Court Opinion at 4-7. In addition, the PCRA court concluded that Appellant's trial counsel was not ineffective for not filing a request for a bill of particulars but that Appellant's SORNA lifetime registration based on two convictions arising out of the same course of conduct was inappropriate under Commonwealth v. Lutz-Morrison , 636 Pa. 395, 143 A.3d 891 (2016), and therefore Appellant could only be subjected to a 25-year registration period. PCRA Court Opinion at 1-4, 7-8. Appellant filed a timely appeal of the PCRA court's order. In his Pa.R.A.P. 1925(b) statement of errors complained of on appeal, Appellant solely objected to the PCRA court's ruling concerning the grading of the unlawful contact with a minor offense.⁵

Appellant presents the following issues for our review:

I. Whether [Appellant's] trial counsel, Attorney Hackwelder, was ineffective for failing to correct the grading and offense gravity score attributed to the offense of Unlawful Contact with Minor, 18 Pa.C.S.A. § 6318(a)(1) at the time of sentencing?

II. Whether [Appellant's] appellate counsel, Attorney Bulson, was ineffective for failing to argue on appeal that the grading and offense gravity score attributed to the offense of Unlawful Contact with Minor, 18 Pa.C.S.A. § 6318(a)(1) was incorrect?

Appellant's Brief at 4. Appellant frames these issues as a claims of ineffective assistance of counsel arising out of his trial and appellate counsels' failure to challenge the first-degree felony grading of the unlawful contact with a minor offense. We conclude that the grading of the unlawful contact offense as a felony of the first degree was contrary to Section 6318 of the Crimes Code and relevant case law interpreting that statute and that the sentence imposed upon Appellant for this charge was consequently illegal. See Commonwealth v. Adams-Smith , 2019 PA Super 151, *14, 209 A.3d 1011 (2019) (challenge to legality of a sentence cannot be waived and may be raised sua sponte by an appellate court reviewing a ruling on a timely PCRA petition); Commonwealth v. Weimer , 167 A.3d 78, 83 n.6 (Pa. Super. 2017) (challenge to the proper grading of an offense implicates the legality of the sentence). Therefore, we need not conduct an ineffective assistance of counsel analysis in this case.

When reviewing the legality of a sentence, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Bickerstaff , 204 A.3d 988, 995 (Pa. Super. 2019). When a sentence lacks statutory authorization or exceeds the legal parameters prescribed by the applicable statute, the sentence is illegal and must be vacated, and the appellate court shall remand the matter for a corrected sentence to be imposed. Id.

Section 6318 of the Crimes Code, defining the offense of unlawful contact with a minor, provides as follows:

(a) Offense defined.-- A person commits an offense if he is intentionally in contact with a minor, or a law enforcement officer acting in the performance of his duties who has assumed the identity of a minor, for the purpose of engaging in an activity prohibited under any of the following, and either the person initiating the contact or the person being contacted is within this Commonwealth:

(1) Any of the offenses enumerated in Chapter 31 (relating to sexual offenses).

(2) Open lewdness as defined in section 5901 (relating to open lewdness).

(3) Prostitution as defined in section 5902 (relating to prostitution and related offenses).

(4) Obscene and other sexual materials and performances as defined in section 5903 (relating to obscene and other sexual materials and performances).

(5) Sexual abuse of children as defined in section 6312 (relating to sexual abuse of children).

(6) Sexual exploitation of children as defined in section 6320 (relating to sexual exploitation of children).

(b) Grading.-- A violation of subsection (a) is:

(1) an offense of the same grade and degree as the most serious underlying offense in subsection (a) for which the defendant contacted the minor; or

(2) a felony of the third degree;

whichever is greater.

18 Pa.C.S. §...