Com. v. Fulger, D.
2812 EDA 2016
| Pa. Super. Ct. | Dec 19, 2017Background
- In 2012 a then-7‑year‑old girl (Complainant) later reported that Appellant Duane Fulger, her grandmother’s boyfriend, molested her during baths and sexually assaulted her in a bedroom while other adults were at parties. The report to authorities occurred after forensic and therapeutic disclosures in 2013; Appellant was charged in 2014.
- At trial the jury convicted Fulger of rape of a child (felony‑1), unlawful contact with a minor (charged as felony‑1), indecent assault, corruption of minors, endangering welfare of children, and attempted rape.
- Appellant was sentenced to consecutive terms: 20–40 years for rape of a child and 10–20 years for unlawful contact with a minor.
- Post‑trial appellate counsel filed an Anders/Santiago brief raising only a sufficiency‑of‑the‑evidence challenge and sought to withdraw; the Superior Court found counsel’s filings deficient in some respects but did not remand on that basis.
- The Court sua sponte addressed legality of sentence: unlawful contact was graded as felony‑1 at prosecution/sentencing but the jury was not asked to find the specific underlying purpose (i.e., that the contact was for a felony‑1 offense such as rape), raising an Apprendi issue. The Court held the unlawful contact conviction’s sentence (10–20 years) exceeded the statutory maximum supported by the verdict and vacated the sentence and judgment of sentence; remand for resentencing was ordered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel may withdraw under Anders/Santiago | Counsel contends appeal is frivolous after record review and filed Anders/Santiago brief | Appellant entitled to clear statement of rights and proper Anders/Santiago compliance; some petition language ambiguous | Court denied counsel’s petition to withdraw because filings were deficient and ambiguous regarding appellant’s rights |
| Whether sentencing for unlawful contact with a minor was legal | Commonwealth treated unlawful contact as felony‑1 and sought a 10–20 year sentence | Fulger argued (implicitly) verdict did not support felony‑1 grading because jury never found purpose to commit a felony‑1 offense beyond reasonable doubt | Court held Apprendi applies: purpose elevating grade is a fact that must be found by jury; unlawful contact sentence vacated and remanded for resentencing |
| Whether Apprendi error was harmless | Commonwealth argued evidence of rape purpose was strong (trial testimony) | Defense pointed to denials and inconsistencies undermining an uncontested finding of felony‑1 purpose | Court found the record did not establish the error was harmless and remanded for resentencing |
| Whether sufficiency of evidence claim warranted relief | Counsel asserted sufficiency challenge was meritless | Appellant maintained weight/sufficiency issues but failed to preserve some claims post‑sentence | Court did not resolve sufficiency merits (proceeded on legality of sentence) |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing statutory maximum must be found by jury beyond a reasonable doubt)
- Commonwealth v. Miller, 35 A.3d 1206 (Pa. Super. 2012) (grading of §6318 unlawful contact depends on the underlying offense that was the purpose of contact)
- Commonwealth v. Aikens, 168 A.3d 137 (Pa. 2017) (legality of sentence reviewed de novo and is reviewable sua sponte)
- Commonwealth v. Tanner, 61 A.3d 1043 (Pa. Super. 2013) (vacatur and remand for resentencing when sentencing scheme disturbed by error)
- Commonwealth v. Velez, 51 A.3d 260 (Pa. Super. 2012) (evidence supporting contact for purpose of sexual offense may be inferred from physical acts and directives)
- Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (procedures and content required for Anders brief on direct appeal)
- Anders v. California, 386 U.S. 738 (1967) (counsel seeking to withdraw on appeal must locate any possibly meritorious issues and provide client notice)