Opinion
J-S52014-18 No. 588 MDA 2018
10-10-2018
COMMONWEALTH OF PENNSYLVANIA, Appellee v. MICHAEL EDWARD SILUK, JR., Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered March 14, 2018
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0004194-2001 CP-22-CR-0004196-2001 CP-22-CR-0004197-2001 CP-22-CR-0004198-2001 CP-22-CR-0004199-2001 BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and STRASSBURGER, J. MEMORANDUM BY BENDER, P.J.E.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Michael Edward Siluk, Jr., appeals from the trial court's March 14, 2018 order that amended his sentence to reflect 10 to 20 years' incarceration on three separate counts. After careful review, we reverse that order.
In 2001, Appellant was arrested and charged with multiple crimes stemming from sexual assaults he committed against several prostitutes. In November of 2002, a jury convicted him of four counts of rape, one count of involuntary deviate sexual intercourse, two counts of aggravated indecent assault, one count of sexual assault, one count of aggravated assault, two counts of robbery, and two counts of simple assault. On February 20, 2003, Appellant was sentenced to an aggregate term of 621 to 1260 months' (or approximately 52 to 105 years') incarceration. Pertinent to the present appeal, Appellant's sentence included flat terms of 10 years' imprisonment for one count of sexual assault and two counts of aggravated indecent assault. The court imposed those three flat sentences because each of the offenses carried a statutory maximum term of 10 years' incarceration, but Appellant was also subject to a mandatory minimum term of 10 years' imprisonment for each count pursuant to 42 Pa.C.S. § 9714(a)(1) (Sentences for second and subsequent offenses). In support of these flat sentences, the trial court relied on Commonwealth v. Bell , 645 A.2d 211, 216-18 (Pa. 1994) (affirming a flat, five-year sentence where the mandatory-minimum sentence and the statutory-maximum sentence were both five years' incarceration).
See 18 Pa.C.S. § 3124.1 (grading sexual assault as a felony of the second degree); 18 Pa.C.S. § 3125(a) (grading aggravated indecent assault as a felony of the second degree); 18 Pa.C.S. § 1103(2) (stating that a person convicted of a second-degree felony may be sentenced to a term of incarceration "which shall be fixed by the court at not more than ten years").
Appellant filed a timely direct appeal from his judgment of sentence. After this Court affirmed on January 15, 2004, our Supreme Court denied his subsequent petition for allowance of appeal on October 13, 2004. See Commonwealth v. Siluk , 847 A.2d 761 (Pa. Super. 2004) (unpublished memorandum), appeal denied, 860 A.2d 123 (Pa. 2004).
Over the ensuing years, Appellant filed, inter alia, several petitions for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Additionally,
[i]n December [of] 2011, Appellant filed a petition in the Court of Common Pleas[,] which he labeled a "Petition to Correct and/or Modify Illegal Sentence Pursuant to the Court's Inherent Power to Correct an Illegal Sentence." In this filing, Appellant argued that the trial court illegally imposed the three individual flat sentences of ten years' imprisonment. Appellant argued that the trial court should modify the sentences to include a minimum and maximum of ten years. Further, Appellant alleged that the Department of Corrections [(DOC)] acted without authority and changed the relevant sentences to ten to twenty years' imprisonment.
On January 11, 2012, the lower court entered an order denying Appellant's petition to modify his sentence, specifically finding that "the sentences imposed on the second degree felonies were mandated under 42 Pa.C.S. § 9714 and lawful under ... Bell ...." Order, 1/11/12, at 1.
On April 17, 2014, Appellant filed a petition for mandamus in the Commonwealth Court, requesting that the DOC be compelled to recalculate the relevant sentences to have minimum and maximum terms of ten years' imprisonment. In response, the DOC alleged it had authority to modify the sentence[,] as it previously had received a clarification letter from the sentencing judge indicating that the flat sentences should have been terms of ten to twenty years' imprisonment and confirming that its imposition of flat sentences was an obvious and patent mistake.
On June 5, 2014, the Commonwealth Court dismissed Appellant's petition, reasoning that (1) the trial court has authority to correct clerical sentencing errors and (2) the DOC properly corrected the sentences to ten to twenty years' imprisonment based on the alleged clarification order from the trial court and the fact that the trial court subsequently denied Appellant's petition for modification of his sentence. See Siluk v. Wetzel , 524 M.D. 2013 (Pa. Cmwlth. 2014). The Commonwealth Court did not acknowledge that the lower court's January 11, 2012 order stated that the flat sentences imposed were lawful under Bell. On February 17, 2015, the Supreme Court affirmed the Commonwealth Court's dismissal of Appellant's mandamus
petition in a per curiam order. See Siluk v. Wetzel , 631 Pa. 285, 110 A.3d 993 (2014).Commonwealth v. Siluk , No. 804 MDA 2017, unpublished memorandum at 3-5 (Pa. Super. filed Feb. 2, 2018) (hereinafter, " Siluk I ").
On August 6, 2015, [Appellant] filed a petition for "clarification of sentence" in the Court of Common Pleas of Bedford County, arguing that it was illegal to change his flat ten-year sentences to sentences of ten to twenty years' imprisonment. On September 2, 2015, the lower court dismissed [Appellant's] filing, which it characterized as a PCRA petition, without a hearing. On August 9, 2016, this Court affirmed the dismissal of Appellant's filing as an untimely PCRA petition.
On February 7, 2017, Appellant, while incarcerated at S.C.I. Rockview, filed [a] pro se Petition for Writ of Habeas Corpus Ad Subjiciendum, arguing that the DOC erroneously interpreted the sentence imposed by the trial court.
The trial court treated Appellant's February 7, 2017 petition for writ of habeas corpus as an untimely PCRA petition and denied it. On appeal to this Court, the panel in Siluk I , supra , first concluded that the trial court had erred by construing Appellant's habeas petition as a PCRA petition. The panel stressed that, "Appellant's assertion of error is due to ambiguity in the sentence imposed," and, therefore, "it was appropriate for Appellant to seek habeas relief." Siluk I , No. 804 MDA 2017, unpublished memorandum at 7 (relying on Commonwealth v. Heredia , 97 A.3d 392, 394-95 (Pa. Super. 2014) ("If the alleged error [asserted in a petition] is thought to be attributable to ambiguity in the sentence imposed by the trial court, then a writ of habeas corpus ad subjiciendum lies to the trial court for clarification and/or correction of the sentence imposed.")).
The Siluk I panel also concluded that "there is ambiguity in the sentence that is currently in place." Id. at 8. Specifically, the panel noted that, while the trial court had relied on Bell to support the legality of Appellant's flat, 10-year sentences, the DOC claimed that the court had sent it a "clarification letter" stating that those sentences had been corrected to 10 to 20 years' incarceration. Id. Based on this ambiguity, the Siluk panel vacated the trial court's order denying Appellant's writ of habeas corpus and "remand[ed] to the trial court for clarification and/or correction of the sentence imposed." Id. Notably, however, the panel did not vacate any aspect of Appellant's judgment of sentence.
On remand, the trial court issued the March 14, 2018 order presently on appeal. In that order, entitled, "Amended Sentencing Order," the court "resentenced" Appellant on the at-issue counts to terms of 10 to 20 years' incarceration. Order, 3/14/18, at 1 (unnumbered). The court also noted that "[a]ll other sentences remain as imposed[,]" and Appellant's aggregate term of incarceration was unchanged. Id. at 2 (unnumbered).
Appellant filed the instant timely, pro se notice of appeal, and he also timely complied with the trial court's order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Herein, he presents 12 issues for our review:
I. Whether the lower court erred and violated the Double Jeopardy Clause by modifying Appellant's three flat sentences to ten to twenty[-]year sentences?
II. Whether the lower court erred [by] sentencing Appellant to an enhanced sentence for every crime of violence pursuant to 42 Pa.C.S.[] § 9714, in a criminal episode?
III. Whether [] Appellant's designation as a Sexually Violent Predator [(SVP)] violates the federal and state constitutions [by] increasing the penalty [] Appellant is exposed to without the fact[-]finder making the necessary factual findings pursuant to Alleyne v. United States , 113 S.Ct. 2151 (2013)?
IV. Whether the evidence presented was insufficient to sustain the conviction for aggravated assault as charged in violation of the Fourteenth Amendment?
V. Whether the conviction for the crime of aggravated assault was the result of a constitutional amendment and/or variance to the crime charged in the information in violation of the Fifth, Sixth, and Fourteenth Amendments?
VI. Whether [] Appellant was denied a preliminary hearing in the case at 4199 CR 2001?
VII. Whether the district court erred in failing to dismiss the case at 4199 CR 2001, for lack of subject matter jurisdiction sua sponte?
VIII. Whether the lower court erred and violated Appellant's Sixth Amendment right to confrontation pursuant to Crawford v. Washington , 541 U.S. 36 (2004), by admitting the preliminary hearing testimony of Maria Houseworth at trial?
IX. Whether the lower court erred in holding that the case at 4199 CR 2001 was subject to compulsory joinder, and not dismissing the case for lack of jurisdiction, and/or improper venue?
X. Whether [] Appellant was denied his Fourteenth Amendment right to due process by the Commonwealth's failure to prove the dates of the crimes with reasonable certainty at 4197, and 4199 CR 2001?
XI. Whether the lower court erred and committed reversible error by failing to give the jury a cautionary and[] limiting instruction when evidence of other crimes[,] wrongs[,] or bad acts were admitted at Appellant's trial as required by Commonwealth v. Billa , 555 A.2d 835 (Pa. 1989)?
XII. Whether the District Attorney's Office committed prosecutor[ial] misconduct in violation of the Fourteenth Amendment by the suppression of evidence, failure to collect and preserve evidence, solicitation and use of known perjured testimony, failure to correct perjured testimony and knowingly and willingly lying to the district court to obtain an illegal arrest warrant?Appellant's Brief at 5-6 (unnecessary capitalization omitted).
Before addressing Appellant's issues, we recognize that it is unclear whether the trial court had the authority to enter the March 14, 2018 order resentencing Appellant. Obviously, the trial court did not have traditional jurisdiction to alter Appellant's original sentences, imposed in 2003 and finalized in 2004, under 42 Pa.C.S. § 5505 (providing that a court "may modify or rescind any order within 30 days after its entry, ... if no appeal from such order has been taken or allowed"). Additionally, while this Court in Siluk I remanded for the trial court to 'clarify or correct' the at-issue sentences, we did not vacate those terms of incarceration. Therefore, the only way the trial court could resentence Appellant in the March 14, 2018 order is if his case "fall[s] within the limited class of cases amenable to the exercise by a trial court of the inherent power to correct patent errors despite the absence of traditional jurisdiction." Commonwealth v. Holmes , 933 A.2d 57, 65 (Pa. 2007).
Whether Appellant's case falls within such a class is a question we need not answer herein, as it is clear that the sentences the court imposed in the March 14, 2018 order are patently illegal and must be reversed. As stated supra, the statutory maximum term of incarceration for Appellant's second- degree aggravated indecent assault and sexual assault convictions is 10 years' imprisonment. See 18 Pa.C.S. § 3124.1; 18 Pa.C.S. § 3125(a); 18 Pa.C.S. § 1103(2). Thus, the court's imposition of 20-year maximum terms for each of those convictions is illegal, and we reverse the court's March 14, 2018 resentencing order on this basis.
In light of this disposition, we need not address Appellant's first issue on appeal, in which he contends that the 10- to 20-year sentences imposed by the court are illegal on double jeopardy grounds. We also cannot address Appellant's remaining claims, as they each involve challenges to his 2003 sentence, or allege errors that occurred at (or before) trial and, therefore, they are outside the scope of the present appeal. Additionally, several of Appellant's claims (such as his second and third issues challenging the legality of his 2003 sentence and SVP designation) are cognizable under the PCRA. Consequently, they must be presented in a PCRA petition and meet a timeliness exception. See , e.g., Commonwealth v. Fahy , 737 A.2d 214, 223 (Pa. 1999) (holding that claims challenging the legality of sentence are subject to review within the PCRA, but must first satisfy the PCRA's time limits). In other words, were we to review these issues herein, we would be effectively permitting Appellant to evade the PCRA's timeliness requirement.
In sum, we reverse the trial court's March 14, 2018 order resentencing Appellant to 10 to 20 years' imprisonment for the three, at-issue counts. Consequently, Appellant's original, 2003 sentence - including his flat, 10-year terms of incarceration for two counts of aggravated indecent assault and one count of sexual assault - remains in effect, as that judgment of sentence became final in 2004, and the Siluk I panel did not vacate any aspect of it. We direct the DOC to enforce Appellant's three, flat 10-year terms, and give him appropriate credit for any time that he has served in excess of those sentences.
Order reversed. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/10/2018