Commonwealth v. Shelton

1

COMMONWEALTH OF PENNSYLVANIA v. TYLER PAUL SHELTON Appellant

No. 28 MDA 2023

No. J-A07043-24

Superior Court of Pennsylvania

April 24, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the PCRA Order Entered December 7, 2022 In the Court of Common Pleas of Bradford County Criminal Division at No(s) CP-08-CR-0000856-2015

BEFORE: STABILE, J., SULLIVAN, J., and STEVENS, P.J.E ^[*]

MEMORANDUM

STEVENS, P.J.E.

Appellant, Tyler P. Shelton, appeals from the order dated December 6, 2022, entered in the Bradford County Court of Common Pleas. We affirm the order and deny Appellant's application for appointment of substitute counsel.

The relevant procedural history and facts are as follows: The Commonwealth charged Appellant with 100 counts each of Rape of Child, Involuntary Deviate Sexual Intercourse with Child, Aggravated Indecent Assault of Child, Indecent Assault, and Corruption of Minors; 40 counts of Corruption of Minors; and 10 counts of Attempted Involuntary Deviate Sexual Intercourse with Child. Appellant's 12-year-old daughter was the victim. Appellant was convicted by a jury of fifteen counts of corruption of minors. On September 15, 2016, Appellant was sentenced to 75 to 360 months' incarceration. Appellant filed a post sentence motion which was denied on March 6, 2017. In his direct appeal to this Court, Appellant challenged the admission of evidence in his trial. On September 7, 1017, this Court affirmed. See Commonwealth v. Shelton, 170 A.3d 549 (Pa. Super. 2017).

On December 7, 2018, Appellant filed a timely pro se PCRA petition raising the two illegality of sentence claims at issues in this instant appeal. On July 11, 2020, the court denied his PCRA petition without a hearing and gave him twenty days to respond. Appellant filed a timely response that he had yet to be appointed an attorney. The court appointed Attorney Jason Beardsley, who inexplicably filed at least seven requests for an extension of time before filing an amended PCRA petition in June 2022. On December 6, 2022, Appellant's PCRA petition was denied. Appellant filed a timely notice of appeal. This appeal followed. ^[1]

Appellant raises two issues for our review:

1. Whether an illegal sentence was imposed upon Mr. Shelton when the sentencing court imposed consecutive sentences on fifteen counts of Corruption of Minors, graded as misdemeanors of the first degree, when the legislature has specified that when Corruption of Minors occurred as a course of conduct the appropriate grading is a single felony of the third degree.

2. Whether the PCRA Court erred in finding Mr. Shelton was ineligible for RRRI, and therefore received an illegal sentence.

Appellant's Br. at 3.

Initially, we note that Appellant, while represented by Attorney Beardsley, filed a pro se application for the appointment of substitute counsel pursuant to Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), on January 30, 2023. By order of court dated September 15, 2023, Attorney Beardsley was deemed withdrawn as counsel and Attorney Jordan Leonard was appointed as appellate counsel. Instantly, Appellant's counseled brief was filed by Attorney Leonard, and thus Appellant's application for appointment is denied as moot.

Appellant's first issue is that he received an illegal sentence when the sentencing court imposed consecutive sentences on fifteen counts of corruption of minors, graded as first-degree misdemeanors, instead of a single third-degree felony. Appellant's Br. at 8. "A claim a petitioner is serving an illegal sentence is cognizable under the PCRA, as long as the claim is raised in a timely petition." Commonwealth v. Moore, 247 A.3d 990, 993 (Pa. 2021). The Commonwealth argues that Appellant's claim, cognizable under the PCRA, was not raised in Appellant's petition or any amended petition and is therefore waived. Appellee's Br. at 2. Specifically, the Commonwealth asserts, "Appellant raised only the issue of his RRRI eligibility in the PCRA filed on December 7, 2018. . . . The PCRA court does not address the issue in its 1925(a) opinion because it was not raised." Id. While it is true that the PCRA court does not mention or address any issue other than the RRRI eligibility, Appellant properly raised his first illegal sentence claim in a timely petition. Our review of the record reveals that Appellant's pro se PCRA petition states this in the argument section:

I am eligible offender for RRRI under current law. Comm v. Robinson, 7 A.3d 868 (Pa. Super. 2010). No RRRI is an illegal sentence[.]

15 counts of 18 Pa.C.S. § 6301(2)(1)(i) should carry the same as one count of 18 Pa.C.S. § 6301(2)(1)(ii) if crime alleged satisfies "course of conduct." Comm v. Kelly, 102 A.3d 1025 (Pa. Super. 2014)[.]

Appellant's Pro Se PCRA Petition, 12/7/18, at 8 (punctuation added). Thus, it is facially clear that Appellant raised both issues in his PCRA petition.

Had the Commonwealth properly briefed the issues, we would not have to guess if the Commonwealth instead meant that Appellant failed to raise this issue in his 1925(b) statement of matters complained of on appeal, which should result in waiver. On January 11, 2023, the trial court ordered Appellant to file a 1925(b) statement within twenty-one days or else the issues would be waived. Appellant thereafter filed two (counseled) statements pursuant to 1925(b). The first was filed on February 6, 2023, and included only the RRRI eligibility issue. The second was filed on February 10, 2023, and raised both issues Appellant raises in his instant brief. Notably, neither 1925(b) statement was filed within the twenty-one-day limit. The trial court, however, accepted Appellant's February 6, 2023, statement as timely and formulated its 1925(a) opinion in response to it, ignoring the additional issue raised in Appellant's February 10, 2023, statement. The record reflects that the trial court's order directing Appellant to file a 1925(b) statement did not specify the address where Appellant could mail his statement, as is required by Pa.R.A.P. 1925(b)(3)(iii). It would be inequitable to deem issues waived on appeal due to the untimely filing of a 1925(b) statement where the trial court's order to file the statement does not comport with the requirements of Rule 1925(b). See Commonwealth v. Jones, 193 A.3d 957, 961 (Pa. Super. 2018). Additionally, Appellant's previous counsel, Attorney Beardsley, who filed both 1925(b) statements, was subsequently suspended from the practice of law and imprisoned. "This Court has held that both the complete failure to file the 1925(b) statement and the untimely filing of a 1925(b) statement is per se ineffectiveness because it is without reasonable basis designed to effectuate the client's interest and waives all issues on appeal." Commonwealth v. Sanchez-Frometa, 256 A.3d 440, 442-443 (Pa. Super. 2021) (quotation marks, citations, and corrections omitted). "While these circumstances often require a remand, where the trial court addresses the issues raised in an untimely Rule 1925(b) statement, we need not remand but may address the issues on their merits." Id. (quotation marks and citations omitted). For these reasons, although the Commonwealth and trial court both declined to address Appellant's issue, we do not find it waived and will address the merits.

Appellant's first issue is an illegal sentence claim cognizable under the PCRA. Moore, supra. It is well settled that a challenge to the legality of a sentence raises a question of law. Commonwealth v. Smith, 956 A.2d 1029, 1033 (Pa. Super. 2008) (en banc). In reviewing this type of claim, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Childs, 63 A.3d 323, 325 (Pa. Super. 2013). "An illegal sentence must be vacated[.]" Commonwealth v. Ramos, 197 A.3d 766, 769 (Pa. Super. 2018) (citation and quotation marks omitted).

Appellant was convicted of fifteen counts of corruption of minors, a misdemeanor offense. He was sentenced to five months' to twenty-four months incarceration on each count consecutively, for an aggregate term of incarceration of 75 to 360 months, or thirty^[2] years' maximum. His issue on appeal is not that he should have been sentenced concurrently rather than consecutively. Instead, he argues that fifteen counts of corruption of minors constitutes a "course of conduct," which should be graded as a felony according to statute, and thus he should have been subject to the penalty for a felony. Had he been sentenced to one felony of the third degree instead of fifteen first-degree misdemeanors, his maximum sentence would have been seven years. Appellant's Br. at 15.

The statute defining the offense of corruption of minors reads, in pertinent part, as follows:

(a) Offense defined.--

(1) (i) Except as provided in subparagraph (ii), whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of any crime, or who knowingly assists or encourages such minor in violating his or her parole or any order of court, commits a misdemeanor of the first degree.

(ii) Whoever, being of the age of 18 years and upwards, by any course of conduct in violation of Chapter 31 (relating to sexual offenses) corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of an offense under Chapter 31 commits a felony of the third degree.

18 Pa.C.S. § 6301(a) (emphasis added).

A person who has been convicted of a misdemeanor may be sentenced to imprisonment for a definite term which shall be fixed by the court and shall be not more than: (1) Five years

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