Post-Conviction Relief • Ineffective Assistance of Counsel • Legality of Sentence • Dismissal of PCRA Petition

Commonwealth v. Weimer, PICS Case No. 17-1187 (Pa. Super. July 7, 2017) Lazarus, J. (39 pages).

Unlawful contact with a minor conviction should have been graded as a default third-degree felony where jury was not charged to make a finding as to what offense defendant contacted the victim minor with the purpose of committing, thereby precluding a grading of the conviction. Order of the PCRA court affirmed in part and reversed in part.

Paul Weimer appealed the PCRA court’s dismissing his petition. Appellant was found guilty by a jury of 21 counts relating to his sexual abuse of three adolescents, R.Z., M.G., and J.D. Appellant was charged with multiple counts of IDSI, unlawful contact with a minor, statutory sexual assault, indecent assault, furnishing liquor to minors, corruption of minors, open lewdness, endangering the welfare of children, and rape. Appellant was acquitted of all charges relating to a fourth teen, J.C., but convicted of various offenses relating to R.Z., M.G., and J.D. The commonwealth sought a 10-year mandatory minimum sentence for the IDSI convictions, and after appellant was classified as a sexually violent predator under Megan’s Law, the trial court sentenced him to an aggregate term of 25-50 years’ imprisonment, including 5-10 years’ incarceration for unlawful contact with a minor.

Following the denial of his direct appeal, appellant filed the present PCRA petition, asserting ineffective assistance of trial counsel and challenging the legality of his mandatory minimum sentence for IDSI and his sentence for unlawful contact with a minor. The PCRA court gave appellant notice of its intent to dismiss his petition without a hearing. After PCRA counsel filed an amended petition, the PCRA court dismissed.

On appeal, appellant reiterated his ineffective assistance of counsel and illegal sentence arguments, and further challenged the validity of the PCRA court’s notice of intent to dismiss his petition. The court first affirmed the dismissal of appellant’s ineffective assistance of counsel claims for the same reasons as set forth by the PCRA court. The court agreed that appellant failed to show how appellant’s trial attorneys represented conflicting interests, or that he suffered prejudice from their failure to withdraw since the trial court would not have granted such a motion.

However, the court reversed the PCRA court’s dismissal of appellant’s illegal sentence challenge. As to appellant’s challenge to his mandatory minimum sentence for IDSI, the court noted that the mandatory minimum sentence statute was ruled unconstitutional pursuant to the U.S. Supreme Court’s ruling Alleyne v. U.S., 133 S.Ct. 2151. The court held that Alleyne‘s holding was applicable to appellant since his judgment of sentence became final after the Court’s ruling. Thus, the court held that appellant was entitled to be resentenced without reference to the mandatory minimum sentence. As to appellant’s challenge to his sentence for unlawful contact with a minor, the court agreed with appellant that he was entitled to have the conviction graded as a default third-degree felony, since the jury was not charged to make a finding as to what offense appellant intended to commit when he contacted J.D. Thus, the court held that this lack of finding precluded a grading of appellant’s conviction other than the default.

Finally, the court rejected appellant’s argument that he was entitled to relief from the PCRA court’s allegedly defective notice of intent to dismiss without a hearing. Although the court acknowledged that a predismissal notice was intended to afford a petitioner the opportunity to amend his PCRA petition, the court noted that appellant had previously been granted several opportunities to amend and supplement his petition.