Com. v. Noble, B.

J-S81034-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

BRANDON J. NOBLE,

Appellant No. 986 MDA 2017

Appeal from the Judgment of Sentence November 29, 2016 in the Court of Common Pleas of Lackawanna County Criminal Division at No.: CP-35-CR-0001777-2014

BEFORE: PANELLA, J., STABILE, J., and PLATT, J.* JUDGMENT ORDER BY PLATT, J.: FILED MARCH 08, 2018

Appellant, Brandon J. Noble, appeals from the judgment of sentence imposed following his entry of a guilty plea to one count of involuntary deviate sexual intercourse (IDSI). We remand for correction of the record and preparation of a supplemental trial court opinion.

This case stems from Appellant’s unlawful sexual contact with the victim, J.G., over a one year-long period, while she was twelve and thirteen years old. On December 30, 2014, Appellant pleaded guilty to one count of

IDSI.1 On December 16, 2015, he filed a motion to withdraw his plea, which ____________________________________________

• • Retired Senior Judge assigned to the Superior Court.

1 As discussed infra, it is unclear whether Appellant pleaded guilty to IDSI under 18 Pa.C.S.A. § 3123(a)(7) (complainant less than sixteen years of age; offender four or more years older and not married to complainant) or § 3123(b) (complainant less than thirteen years of age).

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the trial court denied. On November 29, 2016, the court determined that Appellant is a sexually violent predator. It sentenced him to a term of not less than seventy-eight nor more than 160 months’ incarceration, followed by eighty months of probation. Appellant’s motion for reconsideration of sentence was denied by operation of law on May 22, 2017. Appellant timely appealed, and filed a timely concise statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). The court filed an opinion on September 6, 2017. See Pa.R.A.P. 1925(a).

On appeal, Appellant raises issues challenging his plea and sentence, and, significant to our disposition, argues that the court sentenced him in accordance with the incorrect section of the IDSI statute (section 3123(b), instead of 3123(a)(7)), which negatively impacted his offense gravity score (OGS). (See Appellant’s Brief, at 5, 24-26). Because the trial court has submitted to this Court an inadequate Rule 1925(a) opinion and a certified record with numerous inconsistences, we are constrained to remand.

We begin by emphasizing that the absence of an adequate trial court opinion poses a substantial impediment to meaningful and effective appellate review. See Commonwealth v. Woosnam, 819 A.2d 1198, 1203–04 (Pa. Super. 2003); Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998).

Here, from the record before us, it is impossible to discern with certainty the specific section of the IDSI statute pursuant to which Appellant pleaded guilty and was sentenced. Although the written guilty plea colloquy states that Appellant pleaded guilty to section 3123(a), the elements listed directly

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correspond to section 3123(b). (See Guilty Plea Colloquy, 12/30/14, at 1, 3). The docket and several documents in the record, including the sentencing order, indicate that Appellant pleaded guilty and was sentenced pursuant to section 3123(b). (See Criminal Docket, at 4; Order of Sentence, 11/29/16; Guideline Sentence Form, (date illegible), at 1 (listing OGS of 14); Department of Corrections Commitment Form, 12/07/16, at 1, 3). However, other record documents indicate that the applicable section is 3123(a)(7). (See Order Denying Motion to Withdraw Guilty Plea, 11/08/16, at 3; Order of Sexual Offender’s Board Assessment, 1/05/15).

The trial court’s Rule 1925(a) opinion is likewise inconsistent. Specifically, it first states that Appellant pleaded guilty to one count of IDSI at section 3123(b). (See Trial Court Opinion, 9/06/17, at 2). It then contradictorily explains that: “the written Guilty Plea Colloquy reflects that the plea entered by [Appellant] and accepted by the [c]ourt was to one (1) count of IDSI under 18 Pa.C.S.A. § 3123(a)(7) with an OGS of 12.” (Id. at 19) (citing the Guilty Plea Colloquy). Although the court acknowledged that the docket reflects the plea was to section 3123(b), it characterized this as a clerical error to be corrected following this appeal. (See id.).

Under these circumstances, where both the trial court’s Rule 1925(a) opinion and the written guilty plea colloquy on which it relies are internally inconsistent with regard to the relevant offense, we have concluded that the best disposition is to remand for correction of the record and preparation of a supplemental Rule 1925(a) opinion. Upon remand, the court may, if it deems

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necessary, conduct further proceedings to aid it in carrying out these directives.

Case remanded with instructions. Panel jurisdiction is retained.

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