Com. v. Caswell, J. ( 2019 )

J-S81010-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
JOSEPH CHARLES CASWELL
Appellant No. 1003 MDA 2018
Appeal from the Judgment of Sentence Entered May 4, 2018
In the Court of Common Pleas of Lackawanna County
Criminal Division at No.: CP-35-CR-0001630-2016
BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED MARCH 22, 2019
Appellant Joseph Charles Caswell appeals from the judgment of
sentence entered in the Court of Common Pleas of Lackawanna County (“trial
court”), following his guilty plea to rape of a mentally disabled person.1
Appellant’s counsel, Donna M. De Vita, Esquire, has filed a petition to
withdraw, alleging that this appeal is wholly frivolous, and filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). For the reasons set
forth below, we affirm, in part, vacate, in part, and remand to the trial court
for further proceedings; counsel’s petition to withdraw is denied.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 3121(a)(5).
J-S81010-18
The facts and procedural history of this case are undisputed. As
summarized by the trial court:
[The foregoing charge] stemmed from an investigation by the
Scranton Police Department’s Special Victims Unit after they were
notified that [] an autistic female [(the “victim”)], who has the
mental capacity of a five (5) year old and would not be capable of
consenting to sexual activity, was pregnant. After the victim gave
birth, [Appellant], who is the victim’s cousin, voluntarily appeared
at Scranton Police Head Quarters to submit a DNA sample, upon
the request of his aunt, the victim’s mother. The DNA test results
eliminated two other subjects and indicated that [Appellant] was
the father with 99.9999% probability. After [Appellant] was taken
into custody and Mirandized,[2] he waived his Miranda rights
and informed the officers that he could not be the father because
he is sterile. After discussing the DNA test results, [Appellant]
stated the intercourse was “an accident.” [Appellant] also gave a
written statement that he took the victim to get ice cream from
the grocery store, before he subsequently parked in the little
league parking lot where they began kissing and eventually had
intercourse in the backseat.
On October 30, 2017, [Appellant] entered a guilty plea to
one (1) count of rape of a mentally disabled person. Prior to
entering his guilty plea, [Appellant] executed a lengthy written
plea colloquy form in which he indicated his knowledge that the
maximum penalty he faced was twenty-five (25) years of
confinement and a $25,000.00 fine, the elements of the crimes
charged, his satisfaction with counsel, and the terms of the plea
agreement. T[he trial c]ourt also conducted an on the record
inquiry into the whether [Appellant] was entering a knowing,
voluntary, and intelligent plea. [Appellant] advised the [trial
court] that he was aware of the rights he was giving up and the
penalties he was facing. [Appellant] further admitted that he
committed the crime of engaging in sexual intercourse with the
victim, a person with a mental disability who was incapable of
consent[ing]. After determing that [Appellant] was entering a
knowing, voluntary, and intelligent plea, [the trial court] accepted
the guilty plea. Sentencing was deferred pending completion of a
presentence investigation report [(“PSI”)].
On May 4, 2018, [the trial court] determined that
[Appellant] is a sexually violent predator and imposed sentence.
[The trial court] sentenced [Appellant] above the aggravated
range to ten (10) to twenty (20) years in a state correctional
institution.
____________________________________________
2 Miranda v. Arizona, 384 U.S. 436 (1966).
-2-
J-S81010-18
On May 11, 2018, [Appellant] filed a motion for
reconsideration of sentence, alleging that [the trial court] imposed
an excessive sentence and erroneously relied upon factors
contemplated by the guidelines. [The trial court] denied
[Appellant’s] motion on May 14, 2018, and [Appellant] filed a
notice of appeal to [this Court] on June 5, 2018.
Trial Court Opinion, 8/13/18, at 1-3 (internal citations and unnecessary
capitalizations omitted). Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
On September 25, 2018, Appellant’s counsel filed in this Court a motion
to withdraw as counsel and filed an Anders brief, wherein counsel raises the
following issues for our review:
[I.] Whether the sentencing court erroneously relied upon factors
that are already taken into consideration by the Sentencing
Guidelines, such as the victim’s mental disability and Appellant’s
prior criminal record, when it imposed a sentence above the
aggravated range and which sentence is the maximum sentence
permitted for the crime charged?
[II.] Whether the sentencing court imposed a harsh and
unreasonable sentence?
Anders Brief at 4.
When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first examining counsel’s petition to
withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.
2007) (en banc). It is well-established that, in requesting a withdrawal,
counsel must satisfy the following procedural requirements: 1) petition the
court for leave to withdraw stating that, after making a conscientious
examination of the record, counsel has determined that the appeal would be
frivolous; 2) provide a copy of the brief to the defendant; and 3) advise the
-3-
J-S81010-18
defendant that he or she has the right to retain private counsel, proceed pro
se or raise additional arguments that the defendant considers worthy of the
court’s addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009).
Instantly, counsel’s petition to withdraw from representation provides
that counsel reviewed the record and concluded that the appeal is frivolous.
Furthermore, counsel notified Appellant that she was seeking permission to
withdraw and provided Appellant with copies of the petition to withdraw and
her Anders brief. Counsel also advised Appellant of his right to retain new
counsel, proceed pro se, or raise any additional points he deems worthy of
this Court’s attention. Accordingly, we conclude that counsel has satisfied the
procedural requirements of Anders.
We next must determine whether counsel’s Anders brief complies with
the substantive requirements of Santiago, wherein our Supreme Court held:
[I]n the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel must: (1) provide a summary of the
procedural history and facts, with citations to the record; (2) refer
to anything in the record that counsel believes arguably supports
the appeal; (3) set forth counsel’s conclusion that the appeal is
frivolous; and (4) state counsel’s reasons for concluding that the
appeal is frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that have
led to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361. Here, our review of counsel’s brief indicates that
she has complied with the briefing requirements of Santiago. We, therefore,
conclude that counsel has satisfied the minimum requirements of
Anders/Santiago.
-4-
J-S81010-18
Once counsel has met her obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the appeal
is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5. Thus, we now
turn to the merits of Appellant’s appeal.
Appellant’s issues on appeal implicate the discretionary aspects of his
sentence. Specifically, he argues that the trial court abused its discretion in
“double counting” the victim’s mental disability and his criminal record to
fashion his sentence of 10 to 20 years in prison. Relatedly, Appellant argues
that the trial court abused its discretion in imposing upon him the statutory
maximum sentence, i.e., a sentence outside of the Sentencing Guidelines and
the aggravated range.
At the outset, “we note that when a defendant enters a guilty plea, he
or she waives all defects and defenses except those concerning the validity of
the plea, the jurisdiction of the trial court, and the legality of the sentence
imposed.” Commonwealth v. Stradley, 50 A.3d 769, 771 (Pa. Super. 2012)
(citation omitted). “Our law presumes that a defendant who enters a guilty
plea was aware of what he was doing. He bears the burden of proving
otherwise.” Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super.
2011) (citation omitted). Where there have been no sentencing restrictions
in a plea agreement, an “open plea,” the entry of a guilty plea will not preclude
a challenge to the discretionary aspects of sentencing. Commonwealth v.
Dalberto, 648 A.2d 16, 20 (Pa. Super. 1994), appeal denied, 655 A.2d 983-5-
J-S81010-18
(Pa. 1995). The record in this case reveals that Appellant entered into an
open guilty plea. Accordingly, because of his open plea of guilty, Appellant is
permitted to challenge the discretionary aspects of his sentence.
It is well-settled that “[t]he right to appeal a discretionary aspect of
sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220
(Pa. Super. 2011). Rather, where an appellant challenges the discretionary
aspects of a sentence, an appellant’s appeal should be considered as a petition
for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa.
Super. 2007). As we stated in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s
brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)). Whether a particular issue constitutes a substantial question about
the appropriateness of sentence is a question to be evaluated on a case-by-
case basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.
2001), appeal denied, 796 A.2d 979 (Pa. 2002).
-6-
J-S81010-18
Here, Appellant has satisfied the first three requirements of the four-
part Moury test. Appellant filed a timely appeal to this Court, preserved the
issue on appeal through his post-sentence motions, and included a Pa.R.A.P.
2119(f) statement in his brief.3 We, therefore, must determine only if
Appellant’s sentencing issues raise a substantial question.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825,
828 (Pa. Super. 2007). We have found that a substantial question exists
“when the appellant advances a colorable argument that the sentencing
judge’s actions were either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms which underlie
the sentencing process.” Commonwealth v. Phillips, 946 A.2d 103, 112
(Pa. Super. 2008) (citation omitted), appeal denied, 964 A.2d 895 (Pa.
2009).
Here, Appellant has a raised a substantial question with respect to his
discretionary aspects of sentence claims. See Commonwealth v. Bowen,
975 A.2d 1120, 1120 (Pa. Super. 2009) (noting that a defendant’s argument
that his sentence “was based on an unconstitutional factor . . . raises a
substantial question for our review”); Commonwealth v. Goggins, 748 A.2d
721, 728 (Pa. Super. 2000) (en banc) (stating that double counting a
____________________________________________
3 Rule 2119(f) provides that “[a]n appellant who challenges the discretionary
aspects of a sentence in a criminal matter shall set forth in his brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).
-7-
J-S81010-18
defendant’s prior record score raises a substantial question), appeal denied,
759 A .2d 920 (Pa. 2000); Commonwealth v. Robinson, 931 A.2d 15, 27
(Pa. Super. 2007) (a claim that the trial court impermissibly double-counted
factors already incorporated in the sentencing guidelines raises a substantial
question); Commonwealth v. McNabb, 819 A.2d 54, 56–57 (Pa. Super.
2003) (a claim that the trial court relied on impermissible factors raises a
substantial question); Commonwealth v. Fullin, 892 A.2d 843, 848 (Pa.
Super. 2006) (concluding appellant raised substantial question where he
argued “that the trial court improperly based [appellant’s] aggravated range
sentence on a factor that constituted an element of the offense”);
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (stating
that an “[a]ppellant’s contention that the sentencing court exceeded the
recommended range in the sentencing guidelines without an adequate basis
raises a substantial question for this Court to review.”); Commonwealth v.
Lawrence, 960 A.2d 473, 478 (Pa. Super. 2008) (stating that a claim that a
sentence was unreasonable because it was outside the sentencing guidelines
raises a substantial question). Accordingly, we will address the merits of
Appellant’s sentencing claims.
When reviewing a challenge to the trial court’s discretion, our standard
of review is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. An abuse of discretion is
more than just an error in judgment and, on appeal, the trial court
will not be found to have abused its discretion unless the record
-8-
J-S81010-18
discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill-will.
Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012) (quoting
Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002)),
appeal denied, 64 A.3d 630 (Pa. 2013).
We first address Appellant’s argument that the trial court abused its
discretion in double counting the victim’s mental disability and his criminal
history in crafting his sentence of 10 to 20 years in prison. Appellant’s Brief
at 14. In particular, Appellant points out that the victim’s mental disability is
an element of the charged offense, i.e., rape of a mentally disabled person.4
Id. Similarly, Appellant argues that the trial court double-counted his criminal
history as it already was reflected in his prior record score. Id. at 14-15.
Generally, “[i]t is impermissible for a court to consider factors already
included within the sentencing guidelines as the sole reason for increasing or
decreasing a sentence to the aggravated or mitigating range.”
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)
____________________________________________
4 As charged in this case, a person commits rape when “the person engages
in sexual intercourse with a complainant . . . [w]ho suffers from a mental
disability which renders the complainant incapable of consent.” 18 Pa.C.S.A.
§ 3121(a)(5). Section 3121(a)(5) does not provide whether a defendant must
know that the victim has a mental disability rendering him or her incapable of
consent. The Commonwealth nevertheless must prove mens rea.
Commonweatlh v. Thomson, 673 A.2d 357, 359 (Pa. Super. 1996). The
victim’s mental state is a material element of the crimes. Therefore, under
Section 302 of the Crimes Code, the Commonwealth must prove, at a
minimum, the defendant recklessly disregarded the existence of the victim’s
mental disability. Id. (quoting Commonwealth v. Cater, 418 A.2d 537, 539
(Pa. Super. 1980).
-9-
J-S81010-18
(emphasis in original). Additionally, “[t]rial courts are permitted to use factors
“already included in the guidelines if, they are used to supplement other
extraneous sentencing information.” Id. When deciding whether a court has
improperly based an aggravated sentence on a factor that is already
considered by the sentencing guidelines, we have stated:
[T]he guidelines were implemented to create greater
consistency and rationality in sentencing. The guidelines
accomplish the above purposes by providing a norm for
comparison, i.e., the standard range of punishment, for the
panoply of crimes found in the crimes code and by providing a
scale of progressively greater punishment as the gravity of the
offense increases. . . . The provision of a “norm” also strongly
implies that deviation from the norm should be correlated with
facts about the crime that also deviate from the norm for the
offense, or facts relating to the offender's character or criminal
history that deviates from the norm and must be regarded as not
within the guidelines contemplation. Given this predicate, simply
indicating that an offense is a serious, heinous or grave offense
misplaces the proper focus. The focus should not be upon the
seriousness, heinousness or egregiousness of the offense
generally speaking, but, rather, upon how the present case
deviates from what might be regarded as a “typical” or “normal”
case of the offense under consideration.
Fullin, 892 A.2d at 848 (citation omitted). Moreover, “[a]n aggravated range
sentence [is] justified to the extent that the individual circumstances of [the
defendant’s] case are atypical of the crime for which [the defendant] was
convicted, such that a more severe punishment is appropriate.” Id. The
Fullin Court affirmed an aggravated range sentence because the trial court
justified the sentence by opining on “the extreme indifference for the
consequences of [the defendant’s] actions and because of the extreme nature
of the harm to the victim.” Id. at 849 (citation omitted).
- 10 -
J-S81010-18
Here, the trial court noted that given the extent of the victim’s mental
limitations, her mental disability was an appropriate supplemental factor. Trial
Court Opinion, 8/13/18, at 9. The trial court intimates that the individual
circumstances of this case are atypical of the crime for which Appellant was
convicted. Thus, the trial court maintains that Appellant’s statutory maximum
sentence was appropriate.
Regardless of whether this case is typical or atypical, and even if the
trial court impermissibly considered the victim’s mental disability or
Appellant’s criminal history, it also considered a number of additional,
permissible factors in sentencing Appellant to the statutory maximum
sentence of 10 to 20 years’ imprisonment. As the trial court explained:
In imposing sentence, [the trial court] noted the relative
sophistication of [Appellant], as compared to the victim, as an
aggravating factor. [Appellant] is of average intelligence, was
honorably discharged from the military, and has a lengthy work
history; in contrast, the victim is non-verbal with a significant
mental disability and the mental capacity of a 5 year old child.
[The trial court] was also aware of [Appellant’s] long criminal
history resulting in a prior record score of 5, including a past
conviction for a sexual offense [(indecent assault)]. [The trial
court] also noted the age difference between [Appellant] and the
victim; [Appellant] was 58 years old at the time, and the victim
was 27. [The trial court] further noted that [Appellant] abused
his position of trust and his relationship with the victim, as he took
his mentally disabled cousin for ice cream and then impregnated
her. An additional aggravating factor this [c]ourt found
compelling was the fact that the victim became pregnant and gave
birth as a result of this rape. As noted by the Commonwealth ,
this caused tremendous amount of trauma and stress to the
mentally disabled victim, who does not have the mental capacity
to understand what was happening to her body. Finally, this
[c]ourt considered [Appellant’s] statements regarding his lack of
responsibility for his conduct. Although [Appellant] confessed to
the police and entered a guilty plea, [he] did not completely accept
responsibility. Despite [Appellant’s] contentions, confessing to
the police and entering a guilty plea does not amount to a
complete acceptance of responsibility. Specifically, during
- 11 -
J-S81010-18
[Appellant’s] interview for his presentence investigation report,
[he] gave his version of events as follows:
“They say that I raped by cousin. I didn’t rape her, it
was consensual. They say because of her disability
that it’s rape that I had sex with her. She’s non-
verbal. She had a fight with her mom so I picked her
up and we went out to the park. I gave her a hug to
comfort her and we ended up having sex up at the
park. She started kissing me and it went from there.”
....
Even after his arrest and guilty plea, [Appellant] characterized his
behavior as consensual and even claimed that the victim initiated
the contact. The [trial court] is of the opinion that is not a genuine
acceptance of responsibility.
Trial Court Opinion, 8/13/18, at 8-9 (record citations omitted). Given the trial
court’s use of other permissible factors, it did not abuse its discretion in
considering the victim’s mental disability and Appellant’s criminal history. See
Bowen, 975 A.2d at 1127 (noting that, despite relying on an impermissible
factor, the trial court evaluated several permissible factors in imposing an
aggravated-range sentence); Commonwealth v. P.L.S., 894 A.2d 120, 133
(Pa. Super. 2006) (finding that even if the trial court considered an
inappropriate factor at sentencing, “the court offered significant other support
for sentencing in excess of the guidelines in this case”), appeal denied, 906
A.2d 542 (Pa. 2006).
We next address Appellant’s argument that the trial court abused its
discretion in imposing upon him a statutory maximum sentence of 10 to 20
years’ incarceration because the sentence is unreasonable. Appellant’s Brief
at 15-16.
- 12 -
J-S81010-18
It is settled that the trial court may sentence a defendant outside the
range provided by the sentencing guidelines as long as the trial court gives its
reasons for doing so on the record. Commonwealth v. Walls, 846 A.2d 152,
158 (Pa. Super. 2004), reversed on other grounds, 926 A.2d 957 (Pa.
2007).
When reviewing a sentence outside of the guideline range,
the essential question is whether the sentence imposed was
reasonable. Commonwealth v. Walls, [] 926 A.2d 957, 962
([Pa.] 2007). An appellate court must vacate and remand a case
where it finds that “the sentencing court sentenced outside the
sentencing guidelines and the sentence is unreasonable.” 42
Pa.C.S.A. § 9781(c)(3). In making a reasonableness
determination, a court should consider four factors:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(d). A sentence may be found unreasonable
if it fails to properly account for these four statutory factors. A
sentence may also be found unreasonable if the “sentence was
imposed without express or implicit consideration by the
sentencing court of the general standards applicable to
sentencing.” Walls, 926 A.2d at 964. These general standards
mandate that a sentencing court impose a sentence “consistent
with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant.” 42
Pa.C.S.A. § 9721(b).
Commonwealth v. Sheller, 961 A.2d 187, 190-91 (Pa. Super. 2008),
appeal denied, 980 A.2d 607 (Pa. 2009).
Simply put,
Where an excessiveness claim is based on a court’s sentencing
outside the guideline ranges, we look, at a minimum, for an
indication on the record that the sentencing court understood the
- 13 -
J-S81010-18
suggested sentencing range. When the court so indicates, it may
deviate from the guidelines, if necessary, to fashion a sentence
which takes into account the protection of the public, the
rehabilitative needs of the defendant, and the gravity of the
particular offenses as it relates to the impact on the life of the
victim and the community, so long as the court also states of
record the factual basis and specific reasons which compelled him
to deviate from the guideline range.
Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003)
(internal citations and quotation marks omitted). The trial court also is
required to consider the sentencing guidelines. See Commonwealth v.
Bonner, 135 A.3d 592, 604 (Pa. Super. 2016). When the challenged sentence
is within the sentencing guidelines, we may only vacate a sentence where the
application of the guidelines would be clearly unreasonable. Id. (citing 42
Pa.C.S.A. § 9781(c)(2)). Here, it is undisputed that Appellant received a
sentence outside of the aggravated range of the guidelines. The trial court
imposed upon him a statutory maximum sentence of 10 to 20 years’
imprisonment. See 18 Pa.C.S.A. § 1103(a). Thus, we may vacate his
sentence only if it was clearly unreasonable. Bonner, 135 A.3d at 604.
Initially, we note that “[w]here a PSI exists, we presume that the trial
court was aware of relevant information regarding the defendant’s character
and weighed those considerations along with mitigating statutory factors. A
PSI constitutes the record and speaks for itself.” Bonner, 135 A.3d at 605
(original brackets and citation omitted). Here, the trial court was provided
with a PSI and we presume the trial court was aware of the relevant
information contained therein. The trial court also was aware of the
sentencing guidelines. See Trial Court Opinion, 8/13/18, at 10.
- 14 -
J-S81010-18
Moreover, as stated earlier, the trial court provided a number of reasons
for sentencing Appellant outside of the sentencing guidelines. Specifically, the
trial court found that the victim was Appellant’s non-verbal cousin with a
severe mental disability and a mental capacity of a five-year-old child. The
court further found that Appellant abused his position of trust by taking the
victim out for ice cream and then raping her at the little league parking lot.
Because of the rape, the victim became pregnant and ultimately carried and
delivered a child. The court also found that the pregnancy and the resulting
birth caused the victim tremendous physical and emotional trauma because
the victim lacked the capacity to appreciate that was happening to her body.
The trial court observed that the significant age difference between the victim
and Appellant. At the time of the rape, the victim was 27 years old and
Appellant was 58 years old. Finally, the trial court found that Appellant did
not accept responsibility for his actions even though he pleaded guilty sub
judice. Given the trial court’s review of the PSI and based on the foregoing
factors, we cannot conclude that the trial court abused its discretion under the
circumstances of this case in imposing upon Appellant a statutory maximum
sentence of 10 to 20 years’ imprisonment for rape of a mentally disabled
person. Accordingly, Appellant is not entitled to relief.
Finally, based on our review of the record, we conclude that, under
Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), appeal
- 15 -
J-S81010-18
granted, No. 47 WAL 2018, 2018 WL 3633945 (Pa. filed July 31, 2018),
Appellant’s SVP designation is unconstitutional.5
As this Court has explained:
Butler applied Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2017), which held that the sexual offender requirements under
the Sexual Offender Registration and Notification Act
[(“SORNA”)], including its SVP framework, constitute punishment.
Butler determined that, as a result of Muniz, the SVP procedure
is subject to the constitutional requirement that the facts
constituting that punishment must be found by a fact-finder
beyond a reasonable doubt. Thus, 42 Pa.C.S.A. § 9799.24(e)(3),
which requires the trial court to find the relevant facts by clear
and convincing evidence, was deemed unconstitutional. Id. at
1218.
Commonwealth v. Tighe, 184 A.3d 560, 583 (Pa. Super. 2018).
Thus, in light of Butler, Appellant’s SVP designation under SORNA is
illegal. We vacate the May 4, 2018 judgment of sentence only with respect to
the trial court’s SVP determination under SORNA and remand this matter to
the trial court to determine what registration requirements apply to Appellant,
and to provide him proper notice thereof.
We have conducted an independent review of the record and addressed
Appellant’s arguments on appeal. Based on our conclusions above, we agree
with Appellant’s counsel that the sentencing issues Appellant seeks to litigate
in this appeal are wholly frivolous. However, in light of Appellant’s SVP
designation, which implicates the legality of his sentence, we deny counsel’s
____________________________________________
5 As we observed in Butler, we sua sponte may review Appellant’s SVP
designation because it implicates the legality of his sentence. Butler, 173
A.3d at 1214-15.
- 16 -
J-S81010-18
petition to withdraw. We vacate the judgment of sentence only insofar as it
relates to the SVP designation, but affirm it in all other respects.
Judgment of sentence affirmed, in part, and vacated, in part. Case
remanded for further proceedings consistent with this Memorandum. Petition
to withdraw denied. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/2019
- 17 -