J-S45004-23
2024 PA Super 11
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANGEL LUIS MERCED :
:
Appellant : No. 231 MDA 2023
Appeal from the Judgment of Sentence Entered September 6, 2022
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0005625-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANGEL MERCED :
:
Appellant : No. 232 MDA 2023
Appeal from the Judgment of Sentence Entered September 6, 2022
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0000845-2020
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*
OPINION BY BOWES, J.: FILED: JANUARY 22, 2024
Angel Luis Merced appeals the aggregate judgment of sentence of thirty-
six to seventy-two years of imprisonment following his convictions for multiple
counts of involuntary deviate sexual intercourse (“IDSI”) and related sexual
offenses. After review, we vacate the sentencing order and remand for
resentencing.
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S45004-23
We glean the following background from the certified record. At case
number 5625 of 2019, Appellant was charged with numerous sex crimes
pertaining to minor victims K.P., A.P., and S.P. According to the criminal
information, the acts were alleged to have occurred between January 2007
and January 2019, though the testimony at trial bore out that the acts took
place from 2007 through the summer of 2009. Counts five, six, and seven
were for corruption of minors entailing a course of conduct, a felony of the
third degree, in violation of 18 Pa.C.S. § 6301(a)(1)(ii). This provision first
became effective on December 6, 2010, nearly four years after Appellant’s
conduct began and approximately a year after it ceased.
At case number 845 of 2020, Appellant faced numerous charges as to
minor victim N.P. Count one was IDSI of a child, in violation of 18 Pa.C.S.
§ 3123(b), and count two was IDSI of a person less than sixteen years of age,
in violation of § 3123(a)(7). Both related to the same act, wherein Appellant
blindfolded N.P. and placed his penis into her mouth.
Following a consolidated jury trial, Appellant was found guilty of all
charges. The trial court sentenced Appellant to imprisonment as indicated
hereinabove. More particularly, the court graded the corruption of minors
convictions at case number 5625 of 2019 as felonies of the third degree, and
also imposed concurrent sentences for the two IDSI convictions at case
number 845 of 2020. Additionally, as part of the sentencing order, the court
imposed a condition of no contact with the victims or their families and
directed that Appellant may not be within 100 yards of their residences.
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Appellant filed a timely post-sentence motion challenging the length of
his sentence. The motion was denied by operation of law after the trial court
did not render a decision, and these timely appeals followed. Both Appellant
and the trial court complied with Pa.R.A.P. 1925.1 Appellant presents the
following three issues for our review:
1. Did the trial court illegally sentence [Appellant] on counts
[five], [six], and [seven] of information 5625 of 2019, for
corruption of minors graded as third-degree felonies, rather than
first-degree misdemeanors, where 18 Pa.C.S. § 6301(a)(1)(ii) did
not exist when the offenses occurred between 2007 and 2009,
thus violating the ex post facto provisions of the United States
Constitution and the Constitution of the Commonwealth of
Pennsylvania, and where the court did not instruct the jury that
an element of the offenses was that [Appellant] had engaged in a
course of conduct in violation of Chapter 31?
2. On information 845 of 2020, was the imposition of a sentence
for [IDSI] with a child, count [one], illegal as this conviction
should have merged without count [two], [IDSI] with a person
under the age of [sixteen], where there was only a single act of
oral intercourse, and the elements of [IDSI] with a child merged
with [IDSI] with a person under age [sixteen]?
3. Did the trial court err in imposing conditions of no contact with
the victims or the victims’ families, and barring [Appellant] from
being within 100 feet of the victims’ residences, where the court
had no jurisdiction to impose these conditions, as the
Pennsylvania Department of Probation and Parole has exclusive
authority over state parole conditions, and the Pennsylvania
Department of Corrections has exclusive authority over state
prison conditions?
____________________________________________
1 In its Rule 1925(a) opinion, the trial court stated that it did not contest the
issues raised by Appellant and requested that the case be remanded for it to
address the same. In the same vein, the Commonwealth filed a letter to this
Court indicating that it was not filing a brief and that it would rely upon the
trial court’s opinion, thus offering no contest to Appellant’s claims.
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Appellant’s brief at 7-8 (cleaned up).
In his first issue, Appellant attacks the legality of his sentences for
corruption of minors at case number 5625 of 2019. In so doing, he advances
two distinct arguments. First, Appellant contends that the subsection grading
the offenses as felonies of the third degree did not exist at the time the crimes
occurred, and therefore his sentence arising therefrom violates ex post facto
prohibitions. Second, he argues that the jury was not instructed by the trial
court to make a factual finding as to whether there was a course of conduct,
as required to prove § 6301(a)(1)(ii), and likewise the verdict slip did not
contain such an interrogatory. Therefore, he believes that his sentences for
corruption of minors at this case are illegally graded as felonies of the third
degree, and instead should default to misdemeanors of the first degree,
consistent with § 6301(a)(1)(i).2
We first consider Appellant’s contention that his sentences violated ex
post facto prohibitions. This presents a question of law, and as such, “our
standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Lippincott, 208 A.3d 143, 146 (Pa.Super. 2019).
Our High Court has stated that the ex post facto prohibition
forbids the Congress and the States to enact any law which
imposes a punishment for an act which was not punishable at the
____________________________________________
2 Appellant does not argue that he was improperly convicted of corruption of
minors or that the Commonwealth presented insufficient evidence to prove
the same; rather, he only asserts that the trial court incorrectly graded the
convictions as felonies of the third degree. Therefore, the issue of whether
Appellant was properly convicted of the crimes is not before this Court.
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time it was committed; or imposes additional punishment to that
then prescribed. Through this prohibition, the Framers sought to
assure that legislative Acts give fair warning of their effect and
permit individuals to rely on their meaning until explicitly changed.
The ban also restricts governmental power by restraining arbitrary
and potentially vindictive legislation.
Commonwealth v. Rose, 127 A.3d 794, 798 (Pa. 2015) (cleaned up). “It is
well-settled that for a criminal or penal law to be deemed an ex post facto
law, two critical elements must be met: it must be retrospective, that is, it
must apply to events occurring before its enactment, and it must disadvantage
the offender affected by it.” Commonwealth v. Martz,
232 A.3d 801, 809
(Pa.Super. 2020) (cleaned up). A violation may occur when a law “changes
the punishment, and inflicts a greater punishment, than the law annexed to
the crime . . . when committed.” Lehman v. Pennsylvania State Police,
839 A.2d 265, 269 (Pa. 2003).
As to this issue, Appellant accurately notes that the subsection of
corruption of minors with which he was charged and ultimately sentenced,
§ 6301(a)(1)(ii), was not enacted until December 2010. This crime requires
proof of a course of conduct and is graded as a felony of the third degree.
During the time of the offenses, however, the comparable corruption statute
did not require proof of a course of conduct and any violation was graded as
a misdemeanor of the first degree. The record supports the finding that all
the acts giving rise to the convictions occurred prior to 2010, when the minor
victims resided with Appellant in various places in Pennsylvania. See N.T.
Trial Vol. III, 5/11/22, at 301-02 (Detective Jessica Higgins testifying that the
minors resided in the homes in question from 2007 through 2009, and
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concluding that all incidents of abuse took place during those years). The
testimony from the victims also confirmed that Appellant’s conduct occurred
during that timeframe.
Therefore, by sentencing Appellant to a felony of the third degree, it is
apparent that the sentences applied to acts Appellant committed before the
statute was enacted. Further, this disadvantaged Appellant by imposing
heightened criminal penalties upon him, in the form of a higher graded
offense, compared to the applicable corruption statute at the time of the acts.
Based on the above, we agree with Appellant that the sentences for corruption
of minors at case number 5625 of 2019 violated ex post facto prohibitions and
therefore must be vacated. Bearing in mind that Appellant has not advocated
for vacation of the underlying convictions, we find that the proper remedy is
for the trial court to resentence Appellant to the lower graded subsection of
corruption of minors effective when the crimes occurred, which was a
misdemeanor of the first degree.
Next, Appellant argues that at case number 845 of 2020, his sentence
for IDSI of a child as to victim N.P. is illegal because it should have merged
with the sentence for IDSI of a person less than sixteen years of age. See
Appellant’s brief at 21-24. This challenge implicates the legality of Appellant’s
sentence, and as such “our standard of review is de novo and our scope of
review is plenary.” See Commonwealth v. Watson, 228 A.3d 928, 941
(Pa.Super. 2020).
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Merger of criminal sentences is governed by § 9765 of the Pennsylvania
Sentencing Code, which provides as follows:
No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the other
offense. Where crimes merge for sentencing purposes, the court
may sentence the defendant only on the higher graded offense.
42 Pa.C.S. § 9765. As this Court has noted, “[t]he language of the legislature
is clear. The only way two crimes merge for sentencing is if all elements of
the lesser offense are included within the greater offense.” Watson, supra
at 941 (citation omitted); see also Commonwealth v. Cianci,
130 A.3d 780,
782 (Pa.Super. 2015) (stating that the “relevant question in [a] merger
analysis now is whether person can commit one crime without also committing
[the] other crime and vice-versa, regardless of whether [the] crimes arose
from same set of facts; if [the] elements differ, under [the] legislative
mandate of Section 9765, [the] crimes do not merge”). Finally, “[i]f both
crimes require proof of at least one element that the other does not, then the
sentences do not merge.”
Watson, supra at 941.
A person is guilty of IDSI of a person less than sixteen years of age if
he “engaged in deviate sexual intercourse with a complainant: who is less
than 16 years of age and the person is four or more years older than the
complainant and the complainant and person are not married to each other.”
18 Pa.C.S. § 3123(a)(7). As to IDSI of a child, “[a] person commits [IDSI]
with a child, a felony of the first degree, when the person engages in deviate
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sexual intercourse with a complainant who is less than 13 years of age.” 18
Pa.C.S. § 3123(b).
In support of his position that the sentence for these crimes should
merge, Appellant highlights that both convictions arose from the same act of
Appellant placing his penis in N.P.’s mouth. See Appellant’s brief at 22. He
states that there is no dispute that N.P. was under thirteen years of age at
the time, was not married to Appellant, and Appellant was more than four
years older than N.P. Id. Appellant argues that under these facts, the
Commonwealth necessarily proved all of the elements of IDSI of a child with
the same evidence proving IDSI of a person less than sixteen years of age,
and therefore IDSI of a child should have merged. Id. He alternatively posits
that in the event a traditional merger analysis does not apply, this Court
should nonetheless determine that the sentences merge because they are
different subsections of the same crime and are meant to penalize a single
harm. Id. at 23 (citing Commonwealth v. Williams, 871 A.2d 254
(Pa.Super. 2005)).
Upon review, we do not agree with Appellant that these offenses merge
pursuant to § 9765. As Appellant highlights, each crime has statutory
elements that are not included in the other. IDSI of a person less than sixteen
years of age requires that the actor be more than four years older than, and
not married to, the complainant. Neither of those elements is necessary to
prove IDSI of a child, which also mandates that the victim be under thirteen
years of age. Plainly, a person can commit either one of these crimes without
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necessarily committing the other, and therefore they do not merge. See
Cianci, supra at 782; accord Commonwealth v. Copeland, 1185 MDA
2022,
2023 WL 6158534 at *4 n.6 (Pa.Super. 2023) (non-precedential
decision) (noting that although IDSI of a child and IDSI of a person less than
sixteen years of age are both graded as felonies of the first degree, “our
legislature clearly intends IDSI with a child to be a separate and the more
severe offense”).
Further, we reject Appellant’s invitation to apply a different merger
analysis like that utilized by this Court in our decision in Williams. There, we
relied upon a 1996 case from this Court, Commonwealth v. Dobbs, 682
A.2d 388 (Pa.Super. 1996), which has since been superseded by the
enactment of § 9765. See
Cianci, supra at 783 n.2 (stating that the
defendant’s reliance on Dobbs is misplaced, as “[m]erger law has evolved
substantially since that case was decided. Instead, [§] 9765 and the
‘elements’ approach to merger govern [his] issue”). Accordingly, the proper
test to be applied is that outlined by § 9765, which as discussed, does not
dictate merger of these two offenses.
Accordingly, we find that the trial court did not err in imposing separate
sentences for IDSI of a child and IDSI of a person less than sixteen years of
age at case number 845 of 2020.
In his final claim, Appellant contends that the court exceeded its
authority by imposing conditions in the sentence, particularly those barring
Appellant from contacting the victims or their families or prohibiting him from
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being within 100 yards of the residences of the victims. See Appellant’s brief
at 25-29. “The matter of whether the trial court possesses the authority to
impose a particular sentence is a matter of legality.” Commonwealth v.
Dennis, 164 A.3d 503, 510 (Pa.Super. 2017) (citation omitted). Additionally,
[t]he scope and standard of review applied to determine the
legality of a sentence are well established. If no statutory
authorization exists for a particular sentence, that sentence is
illegal and subject to correction. An illegal sentence must be
vacated. In evaluating a trial court's application of a statute, our
standard of review is plenary and is limited to determining
whether the trial court committed an error of law.
Commonwealth v. Leverette, 911 A.2d 998, 1001–02 (Pa.Super. 2006)
(cleaned up)
Where the trial court imposes a maximum imprisonment sentence of
two or more years, the Pennsylvania Board of Probation and Parole (“PBPP”)
has exclusive authority over the terms of the defendant’s parole. See 61
Pa.C.S. § 6132; see also Commonwealth v. Coulverson, 34 A.3d 135, 141
(Pa.Super. 2011) (recognizing that “the [PBPP] has exclusive authority to
determine parole when the offender is sentenced to a maximum term of
imprisonment of two or more years”) (cleaned up). Further, the authority to
impose a non-contact provision as a special condition of a defendant’s state
incarceration rests with the Pennsylvania Department of Corrections (“DOC”).
See Commonwealth v. Richardson,
296 A.3d 623,
2023 WL 2580633 at *2
(Pa.Super. 2023) (non-precedential decision) (vacating state prison sentence
when the trial court imposed conditions that the defendant refrain from
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contacting with the victims); see also Commonwealth v. Olivo-Vazquez,
248 A.3d 463,
2021 WL 37530 at *4 (Pa. Super. 2021) (non-precedential
decision) (finding the trial court lacked statutory authority to impose a non-
contact provision as part of an appellant’s state incarceration sentence).
Therefore, trial courts do not have statutory authority to impose conditions on
a state sentence, and “any condition the sentencing court purport[s] to impose
on [a defendant’s] state parole is advisory only.”
Coulverson, supra at 141-
42 (citation omitted); see also 61 Pa.C.S. § 6134(b)(1), (2).
Based on this law, we agree with both Appellant and the trial court that
the court lacked authority to impose the conditions it did as part of Appellant’s
sentence. The maximum term of the aggregate sentence was seventy-two
years, and thus the authority to impose a non-contact provision as part of
Appellant’s state incarceration rested with the Pennsylvania DOC. The PBPP
would likewise have the authority to set any similar constraints during
Appellant’s parole. While the trial court was permitted to recommend these
conditions be implemented, it could not impose them as a matter of law.
Accordingly, we vacate the sentencing order and remand for resentencing. On
remand, if it is so inclined, the trial court may suggest implementation of
conditions limiting contact or presence at the victims’ residence.
In sum, Appellant’s sentences for corruption of minors at case number
5625 of 2019, graded as third-degree felonies, cannot stand as they constitute
a violation of ex post facto prohibitions. The trial court is instructed to
resentence Appellant on these offenses as misdemeanors of the first degree.
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The sentences for IDSI of a child and IDSI of a person under sixteen years of
age at case number 845 of 2020 did not merge pursuant to 42 Pa.C.S. § 9765.
Finally, Appellant’s sentence was illegal insofar as the trial court imposed
conditions that only either the PBPP or DOC had authority to instill.
Sentencing order vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 1/22/2024
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