NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. JASON WILLIAM CICHETTI Appellant No MDA 2012 Appeal from the Judgment of Sentence July 17, 2012 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR BEFORE: PANELLA, J., MUNDY, J., and PLATT, J. * MEMORANDUM BY MUNDY, J.: FILED OCTOBER 04, 2013 Appellant, Jason William Cichetti, appeals from the July 17, 2012 aggregate judgment of sentence of five years probation after he pled guilty to four counts of unlawful contact with a minor. 1 After careful review, we affirm. The trial court summarized the factual history of this case as follows. The relevant facts are not in dispute. [Appellant] first came to the attention of Pennsylvania law enforcement on March 11, On that date he began an internet chat with Annabelle in Pa. He thought he was chatting with a thirteen[-]year[-]old girl. In point of fact, Annabelle in Pa. was Special Agent Jessica Eger of * Retired Senior Judge assigned to the Superior Court Pa.C.S.A. 6318(a)(4).

2 the Attorney General s Bureau of Criminal Investigations. On eight separate occasions between March 11, 2010 and August 16, 2010 [Appellant] made internet contact with Annabelle in Pa. On each occasion [Appellant] was in his Maryland home and Special Agent Eger was at her computer in Dauphin County Pennsylvania. During each contact [Appellant] used a webcam to expose himself to and masturbate in front of Annabelle in Pa. Charges were filed in Dauphin County on August 25, [Appellant] was arrested in his Maryland home on August 27, At the time of his arrest a search warrant was executed pursuant to which his computer was seized and thereafter searched. In October of 2010 the Attorney General s office received a forensic report on the computer. It showed that [Appellant] had conducted numerous chats with a minor using the name Pa. Princess 715. In November 2010 they discovered that Pa. Princess 715 was not the minor child she claimed to be. She was in fact East Pennsboro Township Police Officer Denise Craul. [Appellant] had chatted with her on eight separate occasions beginning on April 10, 2010 and ending on June 14, On each occasion he was in his Maryland home and Officer Craul was at her computer in Cumberland County, Pennsylvania. During each contact [Appellant] used a webcam to expose himself to and masturbate in front of Pa. Princess 715. After the Attorney General s Office made contact with Officer Craul, it was agreed that her prosecution of [Appellant] would be handled by their office. [Appellant] was charged in Cumberland County on January 31, He was arrested on those charges on February 3, [Appellant] pleaded guilty to the Dauphin County charges on February 16, He was sentenced in connection with those charges on June - 2 -

3 9, On November 10, 2011 he filed a motion to dismiss the Cumberland County charges on the basis that they were barred by the compulsory joinder rule. Trial Court Opinion, 10/26/12, at 1-3. On May 19, 2011, the Commonwealth filed an information charging Appellant with eight counts of unlawful contact with a minor. On November 10, 2011, Appellant filed a motion to dismiss these charges on the basis of the compulsory joinder rule. The trial court conducted a hearing on January 3, On February 23, 2012, the trial court entered an order denying Appellant s motion to dismiss. On April 24, 2012, Appellant pled guilty to four counts of unlawful contact with a minor, and the remaining counts were dismissed. The trial court ordered an assessment by the Sexual Offenders Assessment Board (SOAB) in order to determine whether Appellant met the criteria to be designated as a sexually violent predator (SVP) under Megan s Law. On July 17, 2012, the trial court sentenced Appellant to an aggregate term of five years probation. 2 The SOAB determined that Appellant did not meet the criteria for a SVP. On August 14, 2012, Appellant filed a timely notice of appeal. 3 2 The trial court sentenced Appellant to one year minus one day to two years minus one day imprisonment on the first count with 397 days credit for time served, and five years probation on each of the remaining counts. All of the probationary sentences were to be served concurrently. 3 Appellant and the trial court have complied with Pa.R.A.P

4 On appeal, Appellant raises one issue for our review. Appellant s Brief at 6. I. Did the [trial] court err in denying [Appellant] s motion to dismiss the instant prosecution because it was barred by 18 Pa.C.S.[A.] 110, the compulsory joinder rule, because the instant charges should have been brought during [Appellant] s Dauphin County prosecution? Appellant avers that the current charges in Cumberland County were barred by the compulsory joinder rule, as they should have been consolidated with the charges filed against him in Dauphin County. Id. at 10. As such, Appellant s issue presents solely a question of law. As a result, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Fithian, 961 A.2d 66, 71 n.4 (Pa. 2008). The compulsory joinder rule, codified at section 110, provides in relevant part, as follows When prosecution barred by former prosecution for different offense Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances: (1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for: - 4 -

5 18 Pa.C.S.A. 110(1)(ii). (ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and occurred within the same judicial district as the former prosecution unless the court ordered a separate trial of the charge of such offense[.] However, before we may address the merits of Appellant s claim, we must first address whether it is properly before this Court. It is axiomatic that by entering a guilty plea, the defendant waives his right to challenge on direct appeal all nonjurisdictional defects except the legality of the sentence and the validity of the plea. Commonwealth v. Lincoln, --- A.3d ---, 2013 WL , *2 (Pa. Super. 2013) (citation omitted). Furthermore, this Court has held that claims going to the compulsory joinder rule are waivable claims. See Commonwealth v. Simmer, 814 A.2d 696, 699 (Pa. Super. 2002) (stating, a defendant s voluntary entry into an ARD program, with respect to a charge of DUI, constitutes a waiver of the defendant s right to later assert section 110 as a bar to prosecution of the DUI offense, upon the defendant s removal from the ARD program[] ); Commonwealth v. Johnson, 466 A.2d 636, 639 (Pa. Super. 1983) (stating, an accused who is aware of all charges filed against him in separate townships but based on the same criminal episode, and who fails to move for the consolidation of these charges, waives his section

6 statutory right to have all of these charges brought in a single prosecution[] ). As a result, we cannot conclude such a claim is jurisdictional or goes to the legality of the sentence. In the case sub judice, although Appellant did file a motion to dismiss the case on the basis of section 110, said motion was denied by the trial court. After the motion was denied, Appellant elected to enter a guilty plea in lieu of going to trial. 4 As a result, Appellant cannot argue on appeal that his motion to dismiss pursuant to the compulsory joinder rule should have been granted. 5 See Lincoln, supra. 4 We note this Court has held that an order denying a motion to invoke [section 110] s protection is subject to immediate appeal. Commonwealth v. Barber, 940 A.2d 369, 376 (Pa. Super. 2007) (citation omitted), appeal denied, 960 A.2d 835 (Pa. 2008). 5 Even if the issue were not waived, Appellant would not be entitled to relief. Appellant acknowledges that Dauphin County and Cumberland County are not within the same judicial district[.] 18 Pa.C.S.A. 110(1)(ii); Appellant s Brief at 17; see also 18 Pa.C.S.A. 901(a) (stating Dauphin County is the Twelfth Judicial District and Cumberland County is the Ninth Judicial District). However, Appellant argues that the Attorney General s involvement in both [prosecutions] alters the meaning of judicial district. Id. Specifically, Appellant avers because the Attorney General has concurrent jurisdiction to prosecute in any county in this Commonwealth, therefore, the entire Commonwealth of Pennsylvania should be considered [her] judicial district when a defendant has pending charges stemming from the same criminal episode in multiple counties. Id. at 20. We find this argument unavailing. The plain text of section 110(1)(ii) follows the criminal offenses at issue, not the prosecuting authority. See 18 Pa.C.S.A. 110(1)(ii) (stating, any offense based on the same conduct or arising from the same criminal episode ) (emphases added). Additionally, our Supreme Court has held that judicial district in section 110(1)(ii) means the geographical area established by the General Assembly in which a court (Footnote Continued Next Page) - 6 -

7 Based on the foregoing, we conclude Appellant s sole issue on appeal is waived. Accordingly, the July 17, 2012 judgment of sentence is affirmed. Judgment of sentence affirmed. Judgment Entered. Deputy Prothonotary Date: 10/4/2013 (Footnote Continued) of common pleas is located. Fithian, supra at 75. We would decline Appellant s invitation to rewrite the meaning of judicial district in the statute

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