Com. v. Fleming, R. (memorandum)

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J-S36032-18 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA Appellee v. ROBERT STEPHEN FLEMING Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1404 EDA 2017 Appeal from the Judgment of Sentence November 23, 2015 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0003920-2014 BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J. MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 10, 2018 Appellant, Robert Stephen Fleming, appeals pro se and nunc pro tunc from the judgment of sentence entered in the Chester County Court of Common Pleas, following his jury trial convictions for involuntary deviate sexual intercourse (“IDSI”) with a child less than 16, IDSI with a child less than 13, incest with a child less than 13, incest with a child between 13 and 18, aggravated indecent assault of a child less than 16, aggravated indecent assault of a child, corruption of minors, endangering the welfare of children (“EWOC”), and indecent assault.1 For the following reasons, we affirm in part, vacate in part, and remand with instructions. The relevant facts and procedural history of this case are as follows. On ____________________________________________ 18 Pa.C.S.A. §§ 3123(a)(7), 3123(b), 4302(b)(1), 4302(b)(2), 3125(a)(8), 3125(a)(b), 6301(a)(1)(ii), 4304(a), 3126(a)(7), and respectively. 1 J-S36032-18 August 31, 2015, a jury convicted Appellant of four counts of indecent assault, two counts each of IDSI with a child less than 16, IDSI with a child less than 13, incest with a child less than 13, and incest of a child between 13 and 18, and one count each of aggravated assault of a child less than 16, aggravated assault of a child less than 13, corruption of minors, and EWOC, stemming from Appellant’s repeated sexual assault of his daughter. The court sentenced Appellant on November 23, 2015, to an aggregate term of thirty-seven (37) to eighty-six (86) years’ incarceration. That same day, the court adjudicated Appellant a sexually violent predator (“SVP”) and informed Appellant of his lifetime registration requirement under the Sex Offender Registration and Notification Act (“SORNA”) at 42 Pa.C.S.A. §§ 9799.10-9799.41, as both a Tier III offender and an SVP. On December 3, 2015, Appellant timely filed post-sentence motions, which the court denied on April 29, 2016. On September 2, 2016, Appellant filed a pro se letter to the court, which the court deemed Appellant’s timely first pro se petition filed under the Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-9546. That same day, the PCRA court appointed PCRA counsel. On March 31, 2017, the PCRA court granted relief in part and reinstated Appellant’s direct appeal rights nunc pro tunc. Appellant filed a timely notice of appeal from the judgment of sentence nunc pro tunc on April 27, 2017. In two pro se letters to the court dated May 8, 2017, and May 10, 2017, Appellant requested to proceed pro se on direct appeal. On May 17, 2017, the trial court informed this Court of Appellant’s -2- J-S36032-18 request. This Court directed the trial court on June 29, 2017, to conduct a Grazier2 hearing. The trial court held a Grazier hearing on July 17, 2017, and subsequently determined Appellant waived counsel knowingly, voluntarily, and intelligently. On July 18, 2017, the court ordered Appellant to file a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b); Appellant failed to comply. Appellant raises one issue for review: [WHETHER APPELLANT PROPERLY PRESERVED HIS ISSUES ON APPEAL?] (Appellant’s Brief at 7-13).3 As a prefatory matter, “to preserve their claims for appellate review, appellants 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 [Rule] 1925(b) statement will be deemed waived.” Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005) (quoting Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309 (1998)). “Rule 1925(b) waivers may be raised by the appellate court sua sponte.” Commonwealth v. Hill, 609 Pa. 410, 427, 16 A.3d 484, 494 (2011). ____________________________________________ 2 Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998). In his brief, Appellant raises approximately 28 issues, many of which are unclear. For the purposes of disposition, we summarized Appellant’s primary issue. 3 -3- J-S36032-18 Instantly, the court ordered Appellant on July 18, 2017, to file a Rule 1925(b) statement. Appellant, however, failed to comply. Accordingly, Appellant waived all issues on appeal. See Castillo, supra; Lord, supra. As a second prefatory matter, we observe: [A]ppellate briefs and reproduced records must materially conform to the requirements of the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P. 2101. This Court may quash or dismiss an appeal if the appellant fails to conform to the requirements set forth in the Pennsylvania Rules of Appellate Procedure. Id.; Commonwealth v. Lyons, 833 A.2d 245 (Pa.Super. 2003)[, appeal denied, 583 Pa. 695, 879 A.2d 782 (2005)]. Although this Court is willing to liberally construe materials filed by a pro se litigant, pro se status confers no special benefit upon the appellant. Id. at 252. To the contrary, any person choosing to represent himself in a legal proceeding must, to a reasonable extent, assume that his lack of expertise and legal training will be his undoing. Commonwealth v. Rivera, 685 A.2d 1011 ([Pa.Super.] 1996). Commonwealth v. Adams, 882 A.2d 496, 497-98 (Pa.Super. 2005). The applicable rules of appellate procedure mandate that an appellant’s brief shall consist of the following matters, separately and distinctly entitled and in the following order: (1) Statement of jurisdiction. (2) Order or other determination in question. (3) Statement of both the scope of review and the standard of review. (4) Statement of the questions involved. (5) Statement of the case. (6) Summary of argument. -4- J-S36032-18 (7) Statement of the reasons to allow an appeal to challenge the discretionary aspects of a sentence, if applicable. (8) Argument for appellant. (9) A short conclusion stating the precise relief sought. (10) The opinions and pleadings specified Subdivisions (b) and (c) of this rule. in (11) In the Superior Court, a copy of the statement of errors complained of on appeal, filed with the trial court pursuant to Rule 1925(b), or an averment that no order requiring a statement of errors complained of on appeal pursuant to [Rule] 1925(b) was entered. Pa.R.A.P. 2111(a). Further, Briefs and reproduced records shall conform in all material respects with the requirements of these rules as nearly as the circumstances of the particular case will admit, otherwise they may be suppressed, and, if the defects are in the brief or reproduced record of the appellant and are substantial, the appeal or other matter may be quashed or dismissed. Pa.R.A.P. 2101 (emphasis added). See also Pa.R.A.P. 2114-2119 (addressing specific requirements of each subsection of appellate brief). Noncompliance with Rule 2116 is particularly grievous because the statement of questions involved defines specific issues Commonwealth v. Maris, 629 A.2d 1014 (Pa.Super. 1993). for review. See also Pa.R.A.P. 2116(a) (explaining statement of questions involved must state concisely issues to be resolved). Moreover, The argument shall be divided into as many parts as there -5- J-S36032-18 are questions to be argued; and shall have at the head of each part—in distinctive type or in type distinctively displayed—the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent. Pa.R.A.P. 2119(a) (emphasis added). See also Commonwealth v. Noss, 162 A.3d 503, 509 (Pa.Super. 2017) (explaining arguments which are not appropriately developed are waived on appeal); Commonwealth v. Knox, 50 A.3d 732 (Pa.Super. 2012), appeal denied, 620 Pa. 721, 69 A.3d 601 (2013) (reiterating failure to cite to legal authority to support argument results in waiver). Instantly, Appellant’s pro se appellate brief falls short of the requisite standards. Appellant’s brief lacks a statement of the scope and the standard of review, a summary of the argument, legal argument sufficient to allow appellate review, and a separate conclusion section stating the precise relief sought. See Pa.R.A.P. 2111(a). Further, Appellant attempts to raise approximately 28 issues in his brief, but fails to discuss them appropriately with citations to legal authority under separate headings in the one and onehalf (1½) page argument section of the brief. See 2116(a), 2119(a). Appellant’s gross deviation from procedural rules governing appellate briefs precludes meaningful review and constitutes waiver of his issue(s) for appellate review. See Noss, supra; Knox, supra. For the foregoing reasons, Appellant has waived all appellate issues. Accordingly, we affirm. See generally In re K.L.S., 594 Pa. 194, 197 n.3, 934 A.2d 1244, 1246 n.3 -6- J-S36032-18 (2007) (stating where issues are waived on appeal, we should affirm rather than quash appeal). Nevertheless, we are mindful of recent case law calling into question the validity of Appellant’s SVP status. Consequently, we elect to review the legality of Appellant’s sentence sua sponte. See Commonwealth v. Randal, 837 A.2d 1211 (Pa.Super. 2003) (en banc) (explaining challenges to illegal sentence cannot be waived and may be raised by this Court sua sponte, assuming jurisdiction is proper; illegal sentence must be vacated); Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super. 2017), allowance of appeal granted, ___ PA. ___, ___ A.3d ___ (July 31, 2018) (addressing legality of appellant’s SVP status sua sponte). Recently, the Pennsylvania Supreme Court held that the registration requirements under SORNA constitute criminal punishment. Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017). In light of Muniz, this Court held: “[U]nder Apprendi and Alleyne, a factual finding, such as whether a defendant has a mental abnormality or personality disorder that makes him…likely to engage in predatory sexually violent offenses, that increases the length of registration must be found beyond a reasonable doubt by the chosen fact-finder.”4 Butler, supra at 1217 (internal quotations and ____________________________________________ Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). 4 -7- J-S36032-18 citations omitted). This Court further held: “Section 9799.24(e)(3) of SORNA[5] violates the federal and state constitutions because it increases the criminal penalty to which a defendant is exposed without the chosen factfinder making the necessary factual findings beyond a reasonable doubt.” Id. at 1218. The Butler Court concluded that trial courts can no longer designate convicted defendants as SVPs or hold SVP hearings, “until [the] General Assembly enacts a constitutional designation mechanism.” Id. (vacating appellant’s SVP status and remanding to trial court for sole purpose of issuing appropriate notice under 42 Pa.C.S.A. § 9799.23, governing reporting requirements for sex offenders, as to appellant’s registration obligation). 6, 7 ____________________________________________ See 42 Pa.C.S.A. § 9799.24(e)(3) (stating: “At the hearing prior to sentencing, the court shall determine whether the Commonwealth has proved by clear and convincing evidence that the individual is a sexually violent predator”). 5 Following Muniz and Butler, the Pennsylvania General Assembly enacted legislation to amend SORNA. See Act of Feb. 21 2018, P.L. 27, No. 10 (“Act 10”). Act 10 amended several provisions of SORNA, and also added several new sections found at 42 Pa.C.S.A. §§ 9799.42, 9799.51-9799.75. In addition, the Governor of Pennsylvania recently signed new legislation striking the Act 10 amendments and reenacting several SORNA provisions, effective June 12, 2018. See Act of June 12, 2018, P.L. 1952, No. 29. These modifications do not apply to Appellant’s SVP adjudication, however, which the trial court imposed in 2015 under the original SORNA. 6 We recognize the Pennsylvania Supreme Court has taken Butler up for review on the Commonwealth’s petition for allowance of appeal. The Supreme Court’s review of Butler, however, remains in its early stages. Further, unless and until our Supreme Court rules otherwise, Butler remains binding authority. 7 -8- J-S36032-18 Here, the court adjudicated Appellant an SVP under SORNA on November 23, 2015. On December 3, 2015, Appellant filed a post-sentence motion, which the court denied on April 29, 2016. Appellant timely filed his first pro se PCRA petition on September 2, 2016. On March 31, 2017, the PCRA court granted relief and reinstated Appellant’s direct appeal rights nunc pro tunc. Appellant filed a timely notice of appeal nunc pro tunc on April 27, 2017. While Appellant’s direct appeal was pending, our Supreme Court decided Muniz on July 19, 2017, and this Court decided Butler on October 31, 2017. In light of Muniz and Butler, Appellant’s SVP status constitutes an illegal sentence, which we can review sua sponte. See Randal, supra. Therefore, we vacate Appellant’s SVP status and remand the case to the trial court to issue a revised notice to Appellant pursuant to 42 Pa.C.S.A. § 9799.23 in accordance with Butler. Accordingly, we affirm the judgment of sentence in all respects, but vacate Appellant’s SVP status, and remand with instructions.8 Judgment of sentence affirmed in part and vacated in part; case remanded with instructions. Jurisdiction is relinquished. ____________________________________________ Due to our disposition, we deny Appellant’s pro se open “Motion for Default Judgment.” 8 -9- J-S36032-18 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 10/10/18 - 10 -

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