Com. v. Schrader, E. , 2016 Pa. Super. 121 ( 2016 )

J-S24028-16
2016 PA Super 121COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWARD GALE SCHRADER,
Appellant No. 1537 MDA 2015
Appeal from the Order Dated August 11, 2015
In the Court of Common Pleas of Bradford County
Criminal Division at No(s):
CP-08-CR-0000078-2015
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWARD SCHRADER,
Appellant No. 1538 MDA 2015
Appeal from the Judgment of Sentence April 29, 2015
In the Court of Common Pleas of Bradford County
Criminal Division at No(s):
CP-08-CR-0000777-2014
BEFORE: GANTMAN, P.J., BOWES, AND MUSMANNO, JJ.
OPINION BY BOWES, J.: FILED JUNE 14, 2016
Edward Schrader appeals from the April 29, 2015 judgment of
sentence imposing an aggregate term of one year and eight months to six
years imprisonment after Appellant tendered guilty pleas to two counts of
indecent assault. Appellant separately appeals the trial court’s August 11,
J-S24028-16
2015 determination that he is a sexually violent predator (“SVP”). We
affirm.
The following facts were set forth at the sentencing proceeding and in
the affidavits of probable cause.1 On October 13, 2014,
Appellant sexually assaulted his step-granddaughter, E.C., as she slept at
the home he shared with his wife, N.S. Sometime during the evening,
Appellant walked into E.C.’s bedroom and fondled her. E.C. woke up and
Appellant left the bedroom. E.C. told N.S., who then called the child’s
mother.
Appellant pled guilty to one count of indecent assault of an
unconscious person, graded as a misdemeanor of the first degree, 18
Pa.C.S. § 3126(a)(4), and was assessed by the Sexual Offender Assessment
Board (“SOAB”) in anticipation of sentencing. However, the sentencing/SVP
determination was postponed after police discovered that Appellant had
previously molested E.C.’s younger sister, S.C., multiple times.2
For the crimes against S.C., Appellant pled guilty to a sole count of
indecent assault of a person less than 13 years of age, graded as a
misdemeanor of the first degree. 18 Pa.C.S. § 3126(a)(7).
____________________________________________
1
The guilty plea proceedings are not in the certified record.
2
E.C. testified that S.C. revealed the molestation to her. E.C. then told
her parents, who contacted the police. N.T. Sentencing, 4/29/15, at 47-48.
-2-
J-S24028-16
On April 29, 2015, Appellant was sentenced in both cases. Appellant
waived his right to a pre-sentence SOAB assessment. The trial court then
imposed an aggravated-range sentence of one to three years of
imprisonment at CP-08-CR-0000777-2014. At CP-08-CR-0000078-2015 the
court imposed a consecutive term of eight months to three years. Appellant
does not challenge this sentence, which was within the standard range of the
guidelines. The sentencing court noted that the pre-sentence reports
indicated Appellant had received an Accelerated Rehabilitative Disposition
(“ARD”) for a similar crime against the victims’ aunt in 1983. N.T.
Sentencing, 4/29/15, at 9. That information was brought to the court’s
attention by the maternal grandfather. On August 11, 2015, the SVP
hearing was held and the court designated Appellant an SVP.
On September 8, 2015, Appellant filed a notice of appeal. He now
raises three issues for our review.
1. The [c]ourt erred in sentencing [Appellant] in the
aggravated range of the sentencing guidelines by considering a
prior sexual abuse case that occurred in the 1980[]s and
[Appellant] was given an ARD which was later dismissed and
expunged from his record.
2. The [c]ourt erred in sentencing [Appellant] in the
aggravated range of the guidelines.
3. The [c]ourt erred in designating [Appellant] as a sexual
violent predator.
Appellant’s brief at 3-4.
-3-
J-S24028-16
We first address the timeliness of these appeals. Appellant and the
Commonwealth consider the trial court’s April 29, 2015 sentence final as of
the SVP determination on August 11, 2015. The notice of appeal is timely
with respect to the SVP determination. While individuals convicted of a
sexually violent offense are required to be assessed by the SOAB before
sentencing, Appellant waived that requirement pursuant to Commonwealth
v. Whanger, 30 A.3d 1212 (Pa.Super. 2011).
However, we have not decided when a defendant who waives the SVP
pre-sentence assessment must appeal issues arising prior to the SVP
determination. The concurring opinion in Whanger outlined the issue we
encounter herein: “[T]he question remains whether a similarly situated
defendant who has other issues unrelated to his SVP status should await his
post-sentence SVP hearing before filing his direct appeal.” Whanger, 30
A.3d at 1219, n.3 (Bowes, J., concurring). We conclude that where a
defendant pleads guilty and waives a pre-sentence SVP determination, the
judgment of sentence is not final until that determination is rendered.
It is well-settled that an SVP order is a non-punitive collateral
consequence of the criminal sentence. Commonwealth v. Harris, 972
A.2d 1196, 1201 (Pa.Super. 2009). Appellant’s sentencing claims are
untimely if the incarceration portion of the criminal sentence became final
thirty days after sentencing. Pa.R.Crim.P. 903(a); Commonwealth v.
Lawrence, 99 A.3d 116, 117, n.1 (Pa.Super. 2014) (“[A] direct appeal in a
-4-
J-S24028-16
criminal case can only lie from the judgment of sentence.”) We recognize,
however, that “the imposition of SVP status is a component of the
judgment of sentence even though the ultimate collateral consequences are
non-punitive.” Harris, supra, at 1201 (emphasis added).
In Harris, we considered when the defendant’s judgment of sentence
became final for purposes of the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541–9546. The trial court had sentenced the defendant on
January 11, 2002. The Commonwealth then requested an SVP assessment,
which the trial court denied. Id. at 1198. Subsequently, the defendant
appealed his judgment of sentence, and the Commonwealth appealed the
trial court’s refusal to order an assessment. The defendant’s appeal
concluded in 2002. The Commonwealth’s appeal became final on June 22,
2004, when our Supreme Court reversed and remanded for an SVP hearing.
Id. at 1199.
The defendant in Harris filed a PCRA petition in December of 2004.
The Harris Court ruled the judgment of sentence became final on
September 20, 2004, which was the last day to petition the Supreme Court
of the United States for review of the reversal, and thus, the defendant’s
petition was timely. Id. at 1200.
We see no reason to deem the sentence final when the period of
incarceration was imposed. As Harris noted, an SVP assessment can be
used by the sentencing judge as either an aggravating or mitigating factor.
-5-
J-S24028-16
Id. at 1201. This fact surely plays a role in plea negotiations. Waiving the
pre-sentence SOAB assessment benefits the defendant since the sentencing
court can no longer use a negative SVP determination as an aggravating
factor.3 The Commonwealth benefits as the entry of the guilty plea severely
limits the grounds for withdrawal.
We find additional support for our conclusion in Commonwealth v.
Deshong, 850 A.2d 712 (Pa.Super. 2004). In Deshong, the
Commonwealth and defendant negotiated a guilty plea that included an
agreement to “pay restitution as determined by the Fulton County Probation
Department, subject to a hearing if requested.” Id. at 713 (internal
quotation marks omitted). Fourteen months after sentencing, the amount of
restitution still had not been determined, and the trial court scheduled a
hearing. After sentencing—but before the hearing—we issued an opinion
holding that restitution must be determined at the time of sentencing if the
restitution is imposed as a direct sentence. The trial court, relying on that
case, determined it could not modify the restitution at the hearing.
The Commonwealth appealed. While the timeliness of the appeal was
not specifically challenged we stated, “Although the judgment of sentence
____________________________________________
3
Our holding removes the risk of the SVP determination becoming an
aggravating factor but preserves the ability to request a sentence reduction
if the SVP determination becomes favorable to the defendant.
-6-
J-S24028-16
was entered in April of 2001, we find that the present order refusing to set
restitution acts to finalize the sentence.” Id. at 714, n.1. Deshong pointed
to the parties’ plea agreement, which called for the possibility of a later
restitution hearing. Id. at 714. Thus, the sentence was not final until
restitution had been determined.4 Similarly, the parties in this case made
the SVP waiver a component of the plea agreement. The agreement was not
complete until the SVP determination was made.
Having determined these appeals are timely, we now address
Appellant’s challenges to his sentence. Appellant first avers that the
sentencing court should not have considered his expunged ARD case.
Appellant also challenges the court’s imposition of an aggravated-range
sentence. While Appellant appears to argue that his first issue concerns the
sentence’s legality, it is clear this allegation pertains to its discretionary
____________________________________________
4
Deshong did not specifically determine whether restitution was part of
Deshong’s criminal sentence. That topic is the subject of debate. Compare
Commonwealth v. Wall, 867 A.2d 578, 582 (Pa.Super. 2005) (“The
imposition of costs and restitution are not considered punishment. Both
costs and restitution are designed to have the defendant make the
government and the victim whole.”), and Commonwealth v. Pleger, 934
A.2d 715, 720 (Pa.Super. 2007) (“Various characteristics of restitution
further illustrate that its true nature is that of a criminal sanction.”)
In reaching our conclusion, we cannot and do not disturb the
precedent holding SVP status is non-punitive, although our Supreme Court is
revisiting the issue. Commonwealth v. Reed, 2016 WL 1615779, at *1
(Pa. 2016).
-7-
J-S24028-16
aspects. See Commonwealth v. Shugars, 895 A.2d 1270, 1274
(Pa.Super. 2006) (applying discretionary aspects of sentencing test to claim
trial judge improperly considered uncharged conduct in imposing sentence).
Preliminarily, we note that “there is no absolute right to appeal when
challenging the discretionary aspect of a sentence.” Commonwealth v.
Ahmad, 961 A.2d 884, 886 (Pa.Super. 2008). An appellant must first
satisfy a four-part test to invoke this Court’s jurisdiction. We examine
(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).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013) (citation
omitted). As discussed, these appeals are timely. Appellant’s brief complies
with Pa.R.A.P. 2119(f) by including a separate petition for allowance of
appeal. Finally, both allegations of error raise a substantial question.
Commonwealth v. Hyland, 875 A.2d 1175 (Pa.Super. 2005) (substantial
question where appellant alleges court did not consider any mitigating
circumstances); Shugars, supra, at 1274 (claim that sentencing judge
relied on impermissible factor presents substantial question). Since we
conclude only one claim has been preserved, we address that aspect of the
test separately.
-8-
J-S24028-16
Appellant’s ARD argument has been preserved. He objected to the
victims’ references to the expungement and asked the trial court not to
consider this information. N.T. Sentencing, 4/29/15, at 45. In addressing
Appellant’s claim, the trial court’s opinion cited the Criminal History Record
Information Act (“CHRIA”), 18 Pa.C.S. §§ 9101-9183, and the
Commonwealth Court of Pennsylvania’s analysis of the CHRIA in Doe v.
Zappala, 987 A.2d 190 (Pa.Cmwlth. 2009). Appellant distinguishes Doe
and argues the trial court “had a duty to use a balancing test to determine
the interest and harm the [appellant] would suffer in using his prior
expunged ARD record[.]” Appellant’s brief at 11. We find the CHRIA is
irrelevant to this claim.
The balancing test cited by Appellant is inapplicable herein since
Appellant was not seeking expungement of any record. CHRIA’s balancing
test applies only “when faced with a request for expungement of a criminal
record[.]” Commonwealth v. Butler, 672 A.2d 806, 808 (Pa.Super. 1996)
(quoting Commonwealth v. Wexler, 431 A.2d 877, 879 (Pa.Super.
1981)). The countervailing interest of preserving a record is not present in
this case. The trial court was permitted to consider relevant facts regarding
Appellant’s character and history presented by persons with direct
knowledge of Appellant’s conduct.
Not only does the caselaw authorize a sentencing court to
consider unprosecuted criminal conduct, the sentencing
guidelines essentially mandate such consideration when a prior
-9-
J-S24028-16
record score inadequately reflects a defendant's criminal
background. In 204 Pa.Code § 303.5(d), Adequacy of the Prior
Record Score, the sentencing guidelines provide that the court
“may consider at sentencing previous convictions, juvenile
adjudications or dispositions not counted in the calculation of the
Prior Record Score, in addition to other factors deemed
appropriate by the court.”
Commonwealth v. P.L.S., 894 A.2d 120, 131 (Pa.Super. 2006).
Sentencing is vested in the discretion of the sentencing court and will not be
disturbed absent a manifest abuse of that discretion. Commonwealth v.
McAfee, 894 A.2d 270, 275 (Pa.Super. 2004). No relief is due.
We next address Appellant’s allegation that the trial court did not
consider all relevant factors in imposing an aggravated range sentence.
Appellant argues that the trial judge did not consider mitigating
circumstances, including Appellant’s lack of criminal history, his age, his
cooperation, and remorse. However, Appellant did not object at the
sentencing hearing nor file post-sentence motions.5 Thus, even though the
trial court addressed the claim in its Pa.R.A.P. Rule 1925(a) opinion, it is
waived. Commonwealth v. Tejada, 107 A.3d 788, 789 (Pa.Super. 2015)
(finding defendant’s challenge to discretionary aspects of sentencing claim
____________________________________________
5
The trial court informed Appellant of his post-sentence motion rights at
the conclusion of both the April 29, 2015 sentencing and the August 11,
2015 hearing. N.T. Sentencing, 4/29/15, at 59-60; N.T. SVP Hearing,
8/11/15, at 105-06
- 10 -
J-S24028-16
waived even though raised in Pa.R.A.P. Rule 1925(b) statement and
addressed by trial court).
Even if preserved, the issue lacks merit. A review of the record shows
the sentencing court weighed mitigating factors.
I am going to impose state incarceration. The offense to me is
far more serious than being served in a county prison. It’s
difficult because this defendant, there are many good things
about him. His service, military for years. He served in
Viet[nam], he worked for PennDot for twenty, twenty-five years.
In other ways, he has been a good family person, he’s helped a
lot of people.
But unfortunately, there’s a dark side here that I don’t think he
is being completely honest about. I do not think that the one
incident where he was particularly candid with [E.C.] was one
where he was almost caught red-handed, the very same time
that the conduct occurred. Where he was not caught red-
handed, he still [sic] in denial about [S.C.].
And although I won’t consider the ARD case a conviction, I think
there was some relevance to it. I did look at a statement he
made to the Assessment Board and he blamed that one on, on
the youngster, Tricia, that she was out to get him because he
made some comments about her sexual life that she was angry
about.
So no I don’t see that it is a situation where [Appellant] is just
coming clean and saying I’ve got this problem and I am going to
be completely candid about it. And that does create a concern
for the court in the future.
When you look at all the information, I think he is a serial sex
offender and that’s sad to say because there are many good
qualities about him but unfortunately that is what I call the dark
side.
N.T. Sentencing, 4/29/15, at 56-57. Where, as here, the trial court had the
benefit of a presentence report, considered the requirements of 42 Pa.C.S.A.
- 11 -
J-S24028-16
§ 9721(b), and thoroughly explained the reasons for the sentence, we find
no abuse of discretion. See Commonwealth v. Roberts, 133 A.3d 759,
774-75 (Pa.Super. 2016).
Finally, Appellant attacks his SVP designation. Appellant’s brief at 14.
First, Appellant maintains the Commonwealth’s expert, Paula Brust,
improperly relied on a pattern of abusing S.C. in formulating a diagnosis.
Id. at 17-18. Appellant states these facts are not in the certified record, as
Appellant pled guilty to only one incident of molesting S.C.
[Ms. Brust] found that Appellant suffers from a mental illness,
mental disability or mental abnormality based upon the fact that
the criminal complaint alleges that over a period of at least six
(6) months, recurrent intense sexually browsing fantasies,
sexual urges, or behaviors involving sexual activity with a
prepubescent child. However, although the original criminal
complaint made these allegations the Appellant was only
charged with one count on the formal information filed in the
Court of Common Pleas and only admitted to and pleaded guilty
to the one count of the information. Yet on the stand while
testifying Ms. Brust made it clear that the six (6) month period
of alleged sexual assault on the second victim met the criteria
for finding mental abnormality to establish a sexual violent
predatory behavior. She alleges on page 8 of her March 31,
2015 assessment that Appellant took advantage of the
opportunities to be in a dark location (movies) to assault his
granddaughter. The evidence to support these allegations are
not in the record.
Id. at 17. This argument does not attack the sufficiency of the evidence;
rather, Appellant is arguing these facts should not have been considered by
the SVP assessor. However, this assertion is waived since Appellant failed to
- 12 -
J-S24028-16
object to the report’s admission into evidence. 6 “Having failed to raise an
objection before the trial court, [appellant] cannot now complain that the
trial court erred in admitting the evidence, thus such information is properly
before this Court when determining the sufficiency of the evidence
supporting an SVP determination.” Commonwealth v. Baker, 24 A.3d
1006, 1034 (Pa.Super. 2011), aff’d 78 A.3d 1044 (Pa. 2013). Furthermore,
Appellant fails to recognize the criminal information’s sole count
encompassed the date range May 8, 2012 to May 18, 2014.
Appellant next contends that the trial court erred in not crediting the
testimony of Appellant’s expert, Dr. Bruce Chambers. This allegation was
set forth in the Pa.R.A.P. 1925(b) statement but not in a post-sentence
motion. “We discern no basis on which to distinguish our standard of review
on weight claims, whether challenging the weight of the evidence to support
a guilty verdict or a trial court's SVP determination. A defendant must put
the issue before the trial court in the first instance[.]” Commonwealth v.
Ratushny, 17 A.3d 1269, 1272 (Pa.Super. 2011). The claim is waived, but
is meritless in any event. The trial court’s opinion demonstrates the court
thoroughly weighed and rejected Dr. Chambers’s testimony.
____________________________________________
6
Nor could Appellant plausibly object given his argument that he is
“very remorseful, very cooperative in pleading guilty immediately to both
cases not putting [sic] the victims through a trial[.]” Appellant’s brief at 13.
- 13 -
J-S24028-16
In weighing Dr. Chambers’ testimony this [c]ourt noted that he
had not personally examined or evaluated [Appellant].
Based upon the testimony offered on behalf of the [p]arties, the
SVP assessment conducted by Ms. Brust on 31 March 2015, and
the written critique of the assessment prepared by Dr.
Chambers, this [c]ourt found that the Commonwealth had met
its burden of showing by clear and convincing evidence that
[Appellant] has been convicted of a sexually violent offense and
has a mental abnormality or disorder which makes him likely to
engage in predatory sexually violent offenses. In light of this
finding, this [c]ourt then designated [Appellant] an SVP subject
to the registration requirements of Pennsylvania law.
In making its determination of [Appellant]’s SVP status, this
[c]ourt compared and contrasted the assertions of Ms. Brust as
reflected in her hearing testimony and her personal interaction
with [Appellant] in conducting his SVP assessment, with the
observations and opinions advanced by Dr. Chambers in his
hearing testimony and written critique of Ms. Brust’s
assessment. This comparison led this [c]ourt to the conclusion
that, although both Ms. Brust and Dr. Chambers were both well
qualified to evaluate [Appellant], the nature and weight of the
evidence presented by the Commonwealth was sufficient to
establish that [Appellant] is an SVP notwithstanding any
assertion to the contrary advanced by Dr. Chambers.
In reaching its conclusion, this [c]ourt noted, considered, and
ultimately rejected Dr. Chambers’ expressed belief that, because
psychological testing had not been performed upon [Appellant]
as part of his SVP assessment, a valid determination of whether
[Appellant] is an SVP could not be made.
In recording its findings upon the record, this [c]ourt explained
that it discounted Dr. Chambers’ assertions because it believed
that Ms. Brust’s sexually violent predator assessment of
[Appellant], being consistent with the record of the case,
Pennsylvania statutory and decisional law, and the Diagnostic
and Statistical Manual of Mental Disorders (DSM-V), carried
more weight than Dr. Chambers’s assertions especially in light of
the fact that Pennsylvania law does not require psychological
testing of the kind advocated by Dr. Chambers in the instant
matter in order for an individual to be designated an SVP.
- 14 -
J-S24028-16
Trial Court Opinion, 11/4/15, at 8-10 (footnotes omitted). For the foregoing
reasons, we affirm judgment of sentence and SVP determination.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2016
- 15 -