holding that pursuant to statute, the grading of a conviction of unlawful contact with a minor for sentencing purposes is predicated upon the defendant’s conviction of an underlying offense and the defendant may - 14 - J-S28019-20 not be acquitted of the underlying offense upon which the conviction of unlawful contact with a minor is based
How later courts described this case
- holding that pursuant to statute, the grading of a conviction of unlawful contact with a minor for sentencing purposes is predicated upon the defendant’s conviction of an underlying offense and the defendant may - 14 - J-S28019-20 not be acquitted of the underlying offense upon which the conviction of unlawful contact with a minor is based
- stating that “a defendant need not be successful in completing the purpose of his communication with a minor in order to be found guilty of” unlawful contact with a minor and that the defendant need not have even been charged with the underlying substantive offense
- clarifying that for purposes of section 6318(a)(1), a defendant need not be separately convicted of, or even charged with, the Chapter 31 offense for which he contacted the minor
- finding evidence insufficient to support higher grading of unlawful contact with minor where the jury found the defendant not guilty of the predicate offense for that grading
Written by the judges who cited it.
The opinion
Justice SAYLOR,
concurring.
I agree with the majority that the default grading provision should apply, but I have some differences with its reasoning.
In the absence of a jury finding regarding which prohibited activity the defendant intended to engage in for purposes of an unlawful contact with a minor conviction, application of anything other than the default grading provision raises constitutional concerns under Apprendi v. New Jersey, 530 U.S. 466, 490 , 120 S.Ct. 2348, 2362-63 , 147 L.Ed.2d 435 (2000) (holding, with limited exception, that judicial findings which result in punishment beyond statutory máximums must be submitted to a jury and proven beyond a reasonable doubt). 1 Further, this Court has determined that Apprendi challenges implicate sentencing illegality, and therefore, are non-waivable. See Commonwealth v. Aponte, 579 Pa. 246 , 250 n. 1, 855 A.2d 800 , 802 n. 1 (2004).
I realize Apprendi is not implicated directly by the present facts, since Appellee’s actual sentence fell below the five-year statutory maximum for a first-degree misdemeanor, 18 Pa.C.S. § 1104. See Apprendi, 530 U.S. at 490 , 120 S.Ct. at 2362-63 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statu *646 tory maximum must be submitted to a jury----” (emphasis added)). Nevertheless, to assure constitutional compliance in all cases, and consistent with the policy of lenity, I support the majority’s decision that the best outcome in cases of inconsistent verdicts is to resort to default grading provisions where available. 2
My other concern goes to the amorphous scope of the special weight afforded to acquittals, as referenced by the majority. See Majority Opinion at 644, 9 A.3d at 1148. As I have previously discussed, such allocation — while clearly salutary — is in substantial tension with the courts’ allowance of inconsistent verdicts in the first instance. See Commonwealth v. Magliocco, 584 Pa. 244, 269 , 883 A.2d 479, 494 (2005) (Saylor, J., concurring and dissenting). Magliocco , and the special-weight policy, have altered this general rule for some cases, but substantial uncertainty remains concerning the boundaries of the special-weight jurisprudence. See, e.g., Commonwealth v. Miller, 607 Pa. 305 , 5 A.3d 814 (2010) (allowing appeal on the question: “Does an acquittal of the felony upon which a second-degree murder charge is predicated necessitate reversal of the jury’s second-degree murder conviction?”).
. There is a fifteen-year difference between the maximum term of incarceration generally available as between a first-degree felony and a first-degree misdemeanor. Compare 18 Pa.C.S. § 1103, with id. § 1104. Consequently, the distinction can be quite significant for Apprendi purposes.
. Parenthetically, in instances in which the Commonwealth does not charge underlying crimes, it may be incumbent upon it to secure special jury findings to support enhanced sentencing in compliance with Apprendi .