July 18, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
TIMOTHY JAMES MATTESON, Appellant
Submitted June 16, 2014
Appeal from the Judgment of Sentence of the Court of Common Pleas, Potter County, Criminal Division, No. CP-53-CR-0000122-2012. Before MINOR, J.
Brent A. Petrosky, Public Defender, Lock Haven, for appellant.
Andy J. Watson, Assistant District Attorney, Coudersport, for Commonwealth, appellee.
Before: PANELLA, JENKINS and MUSMANNO, JJ.
Timothy James Matteson (" Matteson" ) appeals from the judgment of sentence imposed following his convictions of one count each of aggravated indecent assault of a child less than 13 years of age, indecent assault of a person less than 13 years of age and corruption of minors. We affirm.
Following a jury trial, Matteson was found guilty of the above-mentioned crimes. The trial court sentenced Matteson to 120 to 240 months in prison on the aggravated indecent assault of a child conviction, following the Commonwealth's request for the mandatory minimum sentence of 10 years under 42 Pa.C.S.A. § 9718(a)(3).
Matteson filed a timely Notice of Appeal. The trial court ordered Matteson to file a Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement. Matteson
filed a timely Concise Statement and the trial court issued an Opinion.
On appeal, Matteson raises the following questions for our review:
I. Where a [trial] court sentences [a defendant] pursuant to a Commonwealth request to sentence to the mandatory minimum statute, is such a sentence proper in light of Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)?
II. Where a [trial] court sentences [a defendant] pursuant to a Commonwealth request to sentence to the mandatory minimum[,] is such a statute constitutional in light of [Alleyne]?
Brief for Appellant at 3.
In his first claim, Matteson contends that, pursuant to Alleyne, any fact that triggers a mandatory minimum sentence provision must be found beyond a reasonable doubt by a jury, and not by a judge. Id. at 6-9. He claims that, because his mandatory minimum sentencing factors were not submitted to a trier of fact, his sentence violates his rights under the Sixth and Fourteenth Amendments, and his judgment of sentence should be vacated and the case remanded for re-sentencing. Id. at 9.
A mandatory minimum sentencing claim that invokes the reasoning of Alleyne implicates the legality of the sentence. Commonwealth v. Munday, 2013 PA Super. 273, 78 A.3d 661, 664 (Pa. Super. 2013). " A challenge to the legality of the sentence may be raised as a matter of right, is non-waivable, and may be entertained so long as the reviewing court has jurisdiction." Commonwealth v. Robinson, 2007 PA Super. 230, 931 A.2d 15, 19-20 (Pa. Super. 2007) ( en banc ).
In Alleyne, the United States Supreme Court held the following:
Any fact that, by law, increases the penalty for a crime is an " element" that must be submitted to the jury and found beyond a reasonable doubt. Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an " element" that must be submitted to the jury.
Alleyne, 133 S.Ct. at 2155.
" The Alleyne decision . . . renders those Pennsylvania mandatory minimum sentencing statutes that do not pertain to prior convictions constitutionally infirm insofar as they permit a judge to automatically increase a defendant's sentence based on a preponderance of the evidence standard." Commonwealth v. Watley, 2013 PA Super. 303, 81 A.3d 108, 117 (Pa. Super. 2013) ( en banc ) (footnote omitted); see also id. at 117 n.4 (wherein this Court lists the statutes, including section 9718, that are unconstitutional due to the Alleyne decision).
However, the Sixth Amendment concerns present in Alleyne are not implicated in this case. Here, Matteson was charged with aggravated indecent assault of a child, which requires, inter alia, that the victim is less than 13 years of age. See 18 Pa.C.S.A. § 3125. The victim testified that she was 11 years old at the time of the incident. N.T., 10/28/13, at 1. The jury received an instruction that it was required to find that the victim was less than 13 years of age. Trial Court Opinion, 3/4/14, at 4. Therefore, by finding Matteson guilty of aggravated indecent assault of a child beyond a reasonable doubt, the jury specifically found the element required to impose the mandatory minimum sentence. See Watley, 81 A.3d at 121 (concluding that the appellant's mandatory minimum sentence under section 9712.1 was not illegal under Alleyne because the jury, by virtue of its verdict of guilty on the possession of firearms charges, rendered a specific finding as to whether the
appellant possessed the handguns). Thus, the requirements of Alleyne have been met, and Matteson's claim is without merit.
In his second claim, Matteson contends that the mandatory minimum provisions of 42 Pa.C.S.A. § 9718 are unconstitutional. Brief for Appellant at 9-10.
As noted above, the language that increases a defendant's sentence based on a preponderance of the evidence standard in section 9718 has been found unconstitutional. See Watley, 81 A.3d at 117. However, since the jury found that the Commonwealth proved every element of aggravated indecent assault of a child beyond a reasonable doubt, including a victim under the age of 13, the trial court properly imposed the mandatory minimum sentence.
Judgment of sentence affirmed.