J-S63005-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID L. BAYNES

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1437 WDA 2017

Appeal from the Judgment of Sentence June 8, 2017

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0000244-2014,

CP-02-CR-0002773-2014

BEFORE: OTT, J., MURRAY, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.: FILED JANUARY 25, 2019

David L. Baynes appeals from the judgment of sentence imposed June

8, 2017, in the Allegheny County Court of Common Pleas. The trial court re- sentenced Baynes to an aggregate term of 231⁄2 to 47 years’ imprisonment

following his convictions of rape, involuntary deviate sexual intercourse

(“IDSI”),1 and related charges at Docket No. 244-2014, and simple assault2

at Docket No. 2773-2014. The court also determined Baynes met the criteria

for classification as a sexually violent predator (“SVP”) pursuant to

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 Former Justice specially assigned to the Superior Court.

1 See 18 Pa.C.S. §§ 3121(a)(1) and 3123(a)(1).

2 See 18 Pa.C.S. § 2701(a)(1).
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Pennsylvania’s Sexual Offender Registration and Notification Act (“SORNA”).3

On appeal, Baynes challenges both the legality and discretionary aspects of

his sentence. For the reasons below, we are, once again, constrained to

vacate his sentence, and remand for resentencing.

The facts underlying Baynes’ convictions are summarized in a prior

memorandum decision of this Court, and we need not recite them herein. See

Commonwealth v. Baynes, 156 A.3d 332 [378 WDA 2015] (Pa. Super.

2016) (unpublished memorandum at *1-*2). In summary, at Docket No. 244- 2014, Baynes was charged with rape, IDSI, sexual assault, indecent assault,

indecent exposure, and simple assault,4for his attack on a woman, S.H., who

was staying with him after she was ousted from a drug recovery house. After

those charges were filed, another woman, M.S., came forward claiming

Baynes had sexually assaulted her as well. At Docket No. 2773-2014, he was

charged with similar crimes with respect to his assault of M.S. The cases were

consolidated for a joint trial. On November 5, 2014, a jury found Baynes

guilty of all charges at Docket No. 244-2014. At Docket No. 2773-2014, the

jury acquitted Baynes of the sexual offenses, but convicted him of simple

assault. The trial court directed the Sexual Offender Assessment Board

(“SOAB”) to perform an assessment of Baynes to determine if he met the

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3 See 42 Pa.C.S. §§ 9799.10-9799.41.

4 See 18 Pa.C.S. §§ 3121(a)(1), 3123(a)(1), 3124.1, 3126(a)(7), 3127, and

2701(a)(1), respectively.
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criteria for classification as an SVP. See 42 Pa.C.S. § 9799.24. The next day,

the Commonwealth notified Baynes of its intent to invoke the mandatory

minimum sentencing provision of 42 Pa.C.S. § 9718.2(a), calling for a

minimum 25 years’ imprisonment based on a second-strike, since he had

previously been convicted of a sexual offense. On February 16, 2016, the trial court conducted a combined SVP and

sentencing hearing. Based on the SOAB’s findings, the court determined

Baynes met the criteria for classification as an SVP, and sentenced him to an

aggregate term of 25 to 50 years’ imprisonment. Specifically, the court

imposed the following sentences at Docket No. 244-2014: (1) a term of 10

to 20 years for rape, (2) a consecutive term of 10 to 20 years for IDSI, and

(3) a consecutive term of five to 10 years for sexual assault. However, the

court imposed no further punishment on the remaining convictions at Docket

No. 244-2014, or on the simple assault conviction at Docket No. 2773-2014.

Baynes filed a timely direct appeal, arguing the trial court erred in failing

to conduct a full colloquy when he chose not to attend the jury selection and

first day of his trial. See Baynes, supra. A panel of this Court rejected that

claim. Nevertheless, the panel found the sentence imposed was illegal, and

vacated it sua sponte. Specifically, the panel concluded the trial court: (1)

erred when it imposed a sentence for sexual assault, as that charge should

have merged with either rape or IDSI for sentencing purposes; and (2) failed

to impose the second-strike mandatory minimum sentencing provision of

Section 9718.2(a). See id., 156 A.3d 332 (unpublished memorandum at *5-
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*6). The panel remanded the case with the following instruction: “When

resentencing [Baynes], the court must properly apply both merger law and

the second-strike provision of Section 9718.2(a)(1), which is not satisfied by

the aggregate sentence we have just vacated.” Id. (unpublished

memorandum at *6). Baynes’ subsequent petition for allowance of appeal in

the Pennsylvania Supreme Court was denied. See Commonwealth v.

Baynes, 165 A.3d 875 (Pa. 2017).

On June 8, 2017, the trial court resentenced Baynes to an aggregate

term of 231⁄2 to 47 years’ imprisonment, comprised of the following

consecutive sentences: (1) at Docket No. 244-2014, 10 to 20 years for rape,

10 to 20 years for IDSI, and two and one-half to five years for indecent

exposure, and (2) at Docket No. 2773-2014, one to two years for simple

assault. Baynes filed a post-sentence motion, challenging the discretionary

aspects of his new sentence. The trial court denied the motion on July 31,

2017, and this timely appeal followed.5, 6

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5 We note that Baynes’ notice of appeal lists both docket numbers. See Notice

of Appeal, 8/30/2017. In June of 2018, the Pennsylvania Supreme Court in

Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), held that “when a

single order resolves issues arising on more than one lower court docket,

separate notices of appeal must be filed. The failure to do so will result in

quashal of the appeal.” Id. at 977 (footnote omitted). Nevertheless, the

Walker Court specifically announced its decision would be applied

prospectively only. See id. Therefore, because the notice of appeal in the

present case was filed before Walker, we need not quash this appeal.

6 On August 31, 2017, the trial court ordered Baynes to file a concise

statement of errors complained of on appeal by October 16, 2017. See
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Baynes raises five issues on appeal, all challenging either his sentence

or his registration requirements under SORNA. The Commonwealth concedes

Baynes is entitled to resentencing on two bases. First, the trial court imposed

an illegal sentence on his conviction of indecent exposure, which was graded

as a first-degree misdemeanor when it should have been graded as a second- degree misdemeanor.7 See Baynes’ Brief at 24-25; Commonwealth’s Brief at

12-14. Indecent exposure is graded as a first-degree misdemeanor only if the

defendant “knows or should have known that any of the persons present

[were] less than 16 years of age[.]” 18 Pa.C.S. § 3127(b). Here, the

Commonwealth admits there was no evidence presented that any persons

under the age of 16 were present when Baynes committed the crime. See

Commonwealth’s Brief at 13. Because the statutory maximum sentence

permissible for a second-degree misdemeanor is two years, we agree the two

and one-half to five year term imposed on Baynes’ indecent exposure

conviction was illegal.

____________________________________________ Pa.R.A.P. 1925(b). Baynes complied with the court’s directive and filed a

concise statement on October 13, 2017.

7 Although this claim was not presented to the trial court, it raises a challenge

to the legality of Baynes’ sentence. See Commonwealth v. Pantalion, 957

A.2d 1267, 1271 (Pa. Super. 2008). Accordingly, it may be raised for the first

time on appeal, or by an appellate court sua sponte. See Commonwealth

v. Batts, 163 A.3d 410, 434 (Pa. 2017).
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Furthermore, the Commonwealth recognizes Baynes’ designation as an

SVP must be vacated under the current state of the law. We agree.

Our ruling is based upon two recent appellate court decisions.8 First, on

July 17, 2017, the Pennsylvania Supreme Court held in Commonwealth v.

Muniz, 164 A.3d 1189 (Pa. 2017), that SORNA’s registration provisions

constitute punishment, and, therefore, the retroactive application of those

provisions violates the ex post facto clauses of the federal and Pennsylvania

constitutions. Thereafter, on October 31, 2017, a panel of this Court, in

Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), appeal

granted, 190 A.3d 581 (Pa. 2018),9 recognized that “Muniz was a sea change

in the longstanding law of this Commonwealth as it determined that the

registration requirements under SORNA are not civil in nature but a criminal

punishment.” Id. at 1215. As such, the panel concluded the statutory

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8 This issue, too, was not raised before the trial court; however, because it

implicates the legality of Baynes’ sentence, and it may be raised for the first

time on appeal. See Batts, supra. 9 The Pennsylvania Supreme Court granted allowance of appeal on the

following claim:

Whether the Superior Court of Pennsylvania erred in vacating the

trial court’s Order finding [Respondent] to be [a Sexually Violent

Predator (“SVP”)] by extrapolating the decision in

[Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189

(2017),] to declare SVP hearings and designations

unconstitutional under 42 Pa.C.S. § 9799.24(e)(3).

Commonwealth v. Butler, 190 A.3d 581, 582 (Pa. 2018). At this time,

however, the Butler decision is controlling.
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mechanism for designating a defendant as an SVP set forth in 42 Pa.C.S. §

9799.24(e)(3), which permits a trial court to make the determination based

upon clear and convincing evidence, was “constitutionally flawed” pursuant to

the United States Supreme Court’s decisions in Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000).

Accordingly, the Butler panel held: “[T]rial courts cannot designate convicted

defendants SVPs (nor may they hold SVP hearings) until our General Assembly

enacts a constitutional designation mechanism.” Butler, supra, 173 A.3d at

1218. Therefore, the panel vacated the order designating the defendant as

an SVP, and remanded the case to the trial court to determine his proper

registration period pursuant to 42 Pa.C.S. §§ 9799.14 and 9799.15. See id.

The decision in Butler compels the same result here. Accordingly, we

vacate Baynes’ designation as an SVP and his concomitant lifetime registration

requirement under SORNA. Upon remand for resentencing, we direct the trial

court to determine Baynes’ proper registration period, and provide notice to

him thereof.

Moreover, our independent review of the record reveals another basis

for vacating Baynes’ most recent sentence. The trial court failed to apply the

Section 9718.2 second-strike mandatory minimum sentence of 25 years’
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imprisonment to Baynes’ conviction of either rape or IDSI as instructed by the

prior panel of this Court.10 See Baynes, supra. It is well-established that the Commonwealth has the sole discretion to

invoke a mandatory minimum sentence. Commonwealth v. Mebane, 58

A.3d 1243, 1249 (Pa. Super. 2012). “Once properly invoked by the

prosecution, a mandatory minimum sentence cannot be circumvented as a

matter of judicial discretion.” Id. See 42 Pa.C.S. § 9718.2(d) (“There shall

be no authority in any court to impose on an offender to which this section is

applicable any lesser sentence than provided for ... or to place the offender on

probation or to suspend sentence.”).

Here, prior to Baynes’ original sentencing hearing, the Commonwealth

filed a notice of its intention to invoke the mandatory minimum sentence of

25 years’ imprisonment set forth in Section 9718.2(a)(1), based upon Baynes’

prior conviction of sexual assault. Although the court imposed an aggregate

minimum term of 25 years’ imprisonment, it did not impose the requisite

mandatory minimum sentence. See Baynes, supra, 156 A.3d 332

(unpublished memorandum at *5). Consequently, the panel that considered

Baynes’ direct appeal vacated the judgment of sentence and remanded the

case to the trial court to, inter alia, “properly apply ... the second-strike

provision of Section 9718.2(a)(1), which [was] not satisfied by the aggregate

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10 As the panel noted on Baynes’ direct appeal, “[w]e can raise and review an

illegal sentence sua sponte.” Baynes, supra, 156 A.3d 332 (unpublished

memorandum at *4).
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sentence[.]” Id. (unpublished memorandum at *6). Nevertheless, upon

remand, the trial court declined to impose the mandatory minimum term set

forth in Section 9718.2(a)(1), instead choosing to impose consecutive

sentences on several distinct convictions.11 Accordingly, we are compelled to

vacate Baynes’ judgment of sentence on this basis as well, and remand to the

trial court to apply the second-strike provision of Section 9718.2(a)(1).

As for the three remaining claims listed in Baynes’ brief, we find he is

entitled to no further relief. First, Baynes argues the trial court had no

authority at resentencing to impose a term of imprisonment on the two counts

for which he was assessed no further penalty during his original sentencing,

i.e., indecent exposure and simple assault. See Baynes’ Brief at 19-23. He

insists “the imposition of new sentences as to those counts was reversible

error insofar as he was not serving a sentence as to those counts.” Id. at 19.

Preliminarily, we note Baynes relies almost exclusively on statutory and

case law regarding the Post Conviction Relief Act,12 which is inapplicable since

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11 During the resentencing hearing, the trial court expressed confusion

concerning the mandatory minimum sentencing requirements:

I’m not real sure what the Superior Court wants me to do with

these kind[] of sentencings since this is a second sexual offense. I don’t know if it’s supposed to be 25 to life, or if we are supposed

to sentence the way I sentenced. Since there are conflicting

opinions from the Superior Court, I‘m just taking my best shot.

N.T., 6/8/2017, at 12.

12 See 42 Pa.C.S. §§ 9541-9546.
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this is a direct appeal from the judgment of sentence. Nevertheless, we note

that “[w]hen a defendant challenges one of several interdependent sentences,

he, in effect, challenges the entire sentencing plan.” Commonwealth v.

Goldhammer, 517 A.2d 1280, 1283 (1986), cert. denied, 480 U.S. 950

(1987). Therefore, after this Court vacated Baynes’ original sentence and

remanded the case for resentencing, the trial court had the authority to

impose any legal sentence.

Baynes also challenges the discretionary aspects of his June 8, 2017,

sentence, insisting the court imposed a manifestly excessive and

unreasonable sentence. See Baynes’ Brief at 25-31. Because we have

vacated Baynes’ entire sentence on a different basis, we find this claim to be

moot.

Lastly, Baynes contends the newly enacted registration requirements of

SORNA,13 which will apply to him upon remand, are “punitive, unlawful and

unconstitutional.” Id. at 34. Baynes notes that while the statute was

amended to address the concerns in Muniz,14 the burdens placed on

registrants under the new requirements are as punitive as those in Muniz. See id. at 37-38. However, as the Commonwealth explains in its brief, Baynes

has not yet been sentenced under this statute; therefore, “any ruling on its

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13 See 2018, Feb. 21, P.L. 27, No. 10, § 19.

14 See 42 Pa.C.S. § 9799.51(d)(4) (explaining the intention of the General

Assembly in amending the statute was to, inter alia, address the concerns of

the Muniz and Butler Courts).
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constitutionality in the instant appeal would be premature.” Commonwealth’s

Brief at 20. We agree. See Commonwealth v. Semuta, 902 A.2d 1254, 1261-1262 (Pa. Super. 2006) (holding defendant had no standing to challenge

constitutionality of statute under which he was not convicted), appeal denied, 932 A.2d 1288 (Pa. 2007). Accordingly, because the trial court (1) imposed an illegal sentence on

Baynes’ conviction of indecent exposure, and (2) neglected to impose the

mandatory minimum sentence requested by the Commonwealth, we vacate

Baynes’ judgment of sentence, and remand for resentencing.15 Additionally, we vacate Baynes’ designation as an SVP, and direct the trial court to provide

notice to Baynes of his proper registration requirements.

Judgment of sentence vacated. Case remanded for proceedings

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/25/2019

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15 Because our disposition upsets the entire sentencing scheme, we vacate the

entire sentence and remand for resentencing. See Goldhammer, supra.