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10/30/97 COMMONWEALTH PENNSYLVANIA v. DENNIS

October 30, 1997

COMMONWEALTH OF PENNSYLVANIA
v.
DENNIS GAFFNEY, APPELLANT



Appeal from JUDGMENT OF SENTENCE December 23, 1996, in the Court of Common Pleas of MONTGOMERY County, CRIMINAL No. 792-96. Before CARPENTER, J.

Before: Cirillo, P.j.e.; Saylor and Olszewski, JJ. Opinion BY Olszewski, J.

The opinion of the court was delivered by: Olszewski

OPINION BY OLSZEWSKI, J.:

Filed October 30, 1997

Dennis Gaffney (appellant) appeals from a judgment of sentence entered on December 23, 1996, by the Court of Common Pleas of Montgomery County. We affirm.

On December 31, 1995, appellant invited a nine-year-old neighborhood girl into his home. Once the girl was inside, appellant removed his pants and exposed his genitals to the child. He then proceeded to pull down her pants, and violated the girl's vagina orally and manually. Afterwards, the victim fled the house crying hysterically. The father of the victim found her soon after and called the police.

On October 19, 1996, appellant pled guilty to the charges of involuntary deviate sexual intercourse, aggravated indecent assault, and corruption of minors and was sentenced to six (6) to thirty (30) years' incarceration. Appellant filed two motions to reconsider this sentence, both of which were denied. Appellant now argues that the lower court's denial of the second motion violated his due process rights. We disagree.

In addition to his prison term, appellant is also subject to the registration provisions of 42 Pa.C.S.A. § 9793, more commonly known as Megan's Law (hereinafter Megan's Law). This law became effective four months after the above incident occurred. Appellant therefore claims that, as applied to his case, Megan's Law is an impermissible ex post facto law. Again, we disagree.

I. Due Process Violation

Appellant argues that his due process rights were violated because a hearing was not held, and consequently he was not present, when the lower court denied his Petition for Reconsideration of Order Denying Defendant's Petition for Reconsideration and/or Modification of Sentence. The lower court was in full compliance with Rule of Criminal Procedure 1410(B)(2)(b), which provides that a Judge shall "determine whether a hearing or argument on the motion is required." The Comment to this rule further explains, "there is no requirement that oral argument be heard on every post-sentence motion." Even when argument is heard, the Comment states, "the defendant need not be present." Rule 1410 makes it clear that the trial Judge has discretion in deciding whether to hear oral argument on a particular motion.

Since appellant does not argue that the trial court abused its discretion, and the court was otherwise in compliance with Rule 1410, we can only assume that appellant is arguing that the rule itself violates due process. The only case which appellant cites in support of this proposition is Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). Riggins, however, requires "a trial court to state, on the record, the reasons for the sentence imposed." Id. at 149. At appellant's sentencing hearing such reasons were recorded; this appeal is instead from the denial of his motion to reconsider the results of that hearing. Thus, Riggins is inapposite to this appeal. Because appellant presents no case law in support of his position, and absolutely no argument otherwise, we dismiss this claim. See Commonwealth v. Luktisch, 451 Pa. Super. 500, 680 A.2d 877, 879 n.1 (1996).

II. The Ex Post Facto Challenge to Megan's Law

A. The United States Constitution

In the United States Constitution, the ex post facto clause provides, "no state shall . . . pass any . . . ex post facto law." U.S. Const. Art. I, ยง 10. Appellant argues that the registration provisions of Megan's Law are punishment, and therefore violate this clause by impermissibly "changing the punishment, and inflict[ing] a greater punishment, than the law annexed to the crime, when committed." See ...


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