Appeal from the Judgment of Sentence of April 25, 2012 In the Court of Common Pleas of Montgomery County Criminal Division at No.: CP-46-CR-0009201-2010
BEFORE: SHOGAN, J., WECHT, J., and COLVILLE, J.[*]
James Elia ("Elia") appeals from his April 25, 2012 judgment of sentence. Elia raises two issues of first impression for this Court, as well as a challenge to the sufficiency of the evidence. After detailed review, we affirm.
Following allegations that he engaged in sexual conduct with a fourteen year-old-girl, Elia was charged with five counts of involuntary deviate sexual intercourse ("IDSI") with a child under the age of sixteen, five counts of statutory sexual assault, five counts of aggravated indecent assault of a child under the age of sixteen, one count of corruption of the morals of a minor, five counts of indecent assault of a child under the age of sixteen, and one count of unlawful contact or communication with a minor.On June 27, 2011, pursuant to a negotiated plea agreement with the Commonwealth, Elia pleaded guilty to one count of IDSI and one count of statutory sexual assault. In exchange for Elia's plea, the Commonwealth withdrew the remaining charges and did not exercise its right to pursue the mandatory minimum ten-year prison term pursuant to 42 Pa.C.S. § 9718(a), which applies to the IDSI count to which Elia pleaded. Sentencing was scheduled for a later date so that Elia could be evaluated to determine whether he was a sexually violent predator pursuant to Megan's Law. See generally 42 Pa.C.S. § 9799.24.
On September 26, 2011, Elia filed a pro se motion to withdraw his guilty plea. Elia alleged, inter alia, that plea counsel was ineffective. In a separate motion, Elia also requested that new counsel be appointed to represent him. On October 13, 2011, the trial court held a hearing on Elia's motion, at which Elia was represented by the same plea counsel whose effectiveness Elia challenged in his motion. At the conclusion of the hearing, the court determined that Elia had presented a fair and just reason to withdraw his plea, namely an assertion of actual innocence, and that Elia was withdrawing his plea knowingly, voluntarily, and intelligently. The trial court did not specifically find that a conflict of interest existed between Elia and plea counsel, or that any animus between the two was sufficient to justify removing plea counsel from the case. Thus, the court denied Elia's request for a substitution of appointed counsel. However, plea counsel subsequently filed a motion to withdraw as counsel, wherein counsel asserted that a conflict of interest had arisen that necessitated the appointment of new counsel. Following a hearing, the trial court granted counsel's motion and appointed Attorney Francis P. Walsh, Esq. ("Attorney Walsh"), to represent Elia at trial.
On January 17, 2012, Elia appeared for trial with Attorney Walsh. Before trial could commence, Attorney Walsh presented an oral motion to the court seeking to withdraw Elia's withdrawal of his guilty plea. Attorney Walsh contended that Elia should not have been permitted to withdraw his plea because he did not expressly assert his innocence. Additionally,
Attorney Walsh argued that the plea withdrawal hearing should never have occurred, at least without the appointment of new counsel, because Elia had alleged that plea counsel was ineffective in his motion to withdraw the plea. The trial court denied the motion.
Before trial began, the Commonwealth notified the trial court that it was pursuing only one count of each of the charges listed above. A non-jury trial commenced immediately thereafter. At that trial, the following facts were presented to the court.
In the summer of 2010, K.P-F. ("victim"), then fourteen, met Elia, who was then twenty-five years-old, at a local baseball field in Montgomery County, Pennsylvania. At the time, Elia was dating the victim's aunt. During their initial interactions, both the victim and the victim's aunt informed Elia that the victim was fourteen years old. As time passed, the relationship between Elia and the victim evolved from in-person conversations at the baseball field to electronic communication via Facebook and text messaging.
At some point during that summer, the victim's mother learned that the victim and Elia were communicating with one another. The victim's mother attempted to prohibit the victim from any further contact with Elia. However, on September 24, 2010, Elia picked the victim up from school and drove her to the baseball field in his mother's minivan. Initially, they sat on the bleachers and talked. They then returned to the minivan and got into the backseat. There, they engaged in sexual intercourse.
In another encounter sometime during September or October 2010, the victim performed oral sex on Elia. Elia also inserted his fingers into the victim's vagina, and touched the victim's breasts and buttocks with his hands. Shortly thereafter, the victim's mother learned of the sexual relationship and took the victim to a doctor, where the victim was diagnosed as having contracted a sexually transmitted disease.
On November 17, 2010, the Pennsylvania State Police intercepted a telephone conversation between Elia and the victim's mother, who consented to the interception. During the conversation, Elia stated that his relationship with the victim had been going on for approximately six months. Elia admitted that he was twenty-five years-old, and that he knew that the victim was fourteen years-old. However, Elia claimed that the victim's age did not prevent him from developing feelings for her. Elia admitted that he had engaged in unprotected sexual intercourse with the victim.
On November 18, 2010, after being arrested, Elia was interviewed by Pennsylvania State Trooper John Becker. Elia waived his constitutional right to remain silent and to have counsel present, and agreed to answer Trooper Becker's questions. During the interview, Elia confessed to engaging in oral sex with the victim, whom he knew to be fourteen years-old. Elia admitted that he performed oral sex on the victim, and that she performed oral sex and manual stimulation on him in return. Elia further admitted to touching the victim's breasts, vagina, and buttocks. Elia denied that he had ever engaged in vaginal intercourse with the victim. Elia also informed Trooper Becker that he possessed nude pictures of the victim on his phone, which he shared with three other people. Elia insisted that the relationship was consensual in both its platonic and sexual aspects, and that in no way was the relationship forced upon the victim.
At the conclusion of the non-jury trial, the trial court found Elia guilty of IDSI, statutory sexual assault, aggravated indecent assault, corruption of minors, indecent assault, and unlawful contact with a minor. On March 19, 2012, the Commonwealth filed a notice of its intent to pursue the ten-year mandatory minimum sentence applicable to Elia's IDSI conviction pursuant to 42 Pa.C.S. § 9718(a).
On April 25, 2012, the parties appeared for sentencing. Before sentence was imposed, Attorney Walsh argued that the application of subsection 9718(a) in this case constituted an unconstitutionally cruel and unusual punishment. Specifically, Attorney Walsh argued that the imposition of a mandatory ten-year prison term for IDSI was grossly disproportionate to the conduct that formed the basis for the crime, which in this case was voluntary oral sex. Attorney Walsh further highlighted the disproportionality of the application of the provision to Elia's IDSI conviction by comparing it to Elia's statutory sexual assault conviction, which was predicated on vaginal intercourse, conduct that Attorney Walsh maintained was more severe than the oral sex that triggered the application of the mandatory sentence. The trial court rejected this argument and held that the mandatory minimum sentence was constitutional, and applicable to Elia.
The trial court sentenced Elia to ten to twenty years' incarceration pursuant to 42 Pa.C.S. § 9718(a) on the IDSI count. The court imposed no further penalty on the corruption of minors and unlawful contact with a child counts. The trial court determined that each of the remaining counts merged with other counts for sentencing purposes. Additionally, the trial court informed Elia that he must comply with the requirements of Megan's Law for the remainder of his lifetime.
On May 4, 2012, Elia filed post-sentence motions, wherein he alleged that: (1) the trial court erred in denying his request to withdraw his withdrawal of his guilty plea; (2) his plea counsel was ineffective; (3) the evidence was insufficient to prove him guilty of IDSI beyond a reasonable doubt; and (4) subsection 9718(a) was unconstitutional. On May 17, 2012, the trial court denied Elia's post-sentence motions.
On May 25, 2012, Elia filed a timely notice of appeal. In response, the trial court directed Elia to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Elia timely complied. On July 18, 2012, the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).
Elia raises the following issues for our review:
I. Did the trial court err in allowing [Elia] to withdraw his guilty plea where the court made a finding that [Elia] was asserting that he was not guilty of the charges despite the fact that [Elia] never testified that he was not guilty?
II. Did the Commonwealth fail to prove beyond a reasonable doubt that [Elia] committed the crime of involuntary deviate sexual intercourse in the County of Montgomery?
III. Was the sentence of ten (10) to twenty (20) years['] incarceration for involuntary deviate sexual intercourse as a result of imposing a mandatory minimum ten (10) year sentence pursuant to 42 Pa.C.S.A. § 9718(a)(1) illegal because the mandatory minimum sentence provision is unconstitutional in violation of Article 1, ...