Com. v. Bieber, R. ( 2018 )

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2NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P.
65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT LEE BIEBER :
:
Appellant : No. 1057 MDA 2017
Appeal from the Judgment of Sentence April 13, 2016
In the Court of Common Pleas of Wyoming County Criminal Division at
No(s): CP-66-CR-0000207-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT LEE BIEBER :
:
Appellant : No. 1058 MDA 2017
Appeal from the Judgment of Sentence April 13, 2016
In the Court of Common Pleas of Wyoming County Criminal Division at
No(s): CP-66-CR-0000434-2015
BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 08, 2018
Appellant, Robert Lee Bieber, appeals from the judgments of sentence
entered on April 13, 2016, following his January 8, 2016 guilty plea to
statutory sexual assault, 18 Pa.C.S. § 3122.1(b), at Wyoming County Court
of Common Pleas Docket Number 207-2015, and indecent assault, 18
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Pa.C.S. § 3126(a)(7), at Docket Number 434-2015. Appellate counsel has
filed a petition to withdraw representation and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009).1 After review, we deny counsel’s petition to withdraw
as counsel, reverse the order finding Appellant to be a Sexually Violent
Predator (“SVP”) and remand to the trial court to advise Appellant of his
obligations under Pennsylvania’s Sex Offender Registration and Notification
Act (“SORNA”), 42 Pa.C.S. §§ 9799.10–9799.41. In all other respects, we
affirm the judgments of sentence.2
The trial court summarized the facts of the crime and procedural
history as follows:3
[O]n or about December 23, 2014[,] Pennsylvania State Police
received a telephone call from [C.S.] who stated her eight year
old daughter (hereinafter “L.S.”) was sexually molested by
[Appellant] while visiting [Appellant’s] daughter at [Appellant’s]
residence on December 20, 2014.
An interview was scheduled and conducted at the
Children’s Advocacy Center.
____________________________________________
1We note with disapproval the Commonwealth’s failure to file a brief in this
matter.
2 As our disposition addresses the reasons Appellant set forth in support of
his Response to Counsel’s Anders Brief and Application for Change of
Appointed Counsel, filed on December 18, 2017, that Application is
dismissed as moot.
3 Appellate counsel has failed to attach to his brief a copy of the trial court
opinion in contravention of Pa.R.A.P. 2111(b).
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According to the interview contained in the Affidavit of
Probable Cause:
L.S. stated she went to [Appellant’s] house for the
weekend to visit her friend. While sleeping, [Appellant] woke
her up and took her into the bathroom, pulled up her night
gown, which was a tee shirt [Appellant] gave her to wear as a
night gown. [Appellant] then pulled down her underpants. He
then pulled down his pants and put his bad part in her bad part.
L.S. stated white stuff came out of his bad part and went on her
legs, the carpet/throw rug and the floor. L.S. further stated
[Appellant] then told her to wipe the white stuff off of her, which
she did, using tissues. L.S. then threw the tissues in the
garbage can that was in the bathroom. [Appellant] told her to
get dressed and go back to bed, which she did. When asked
during the interview what L.S. meant by his bad parts, she
pointed to her crotch area to indicate the area of the bad part for
[Appellant]. When asked what L.S. meant by her bad part, she
again pointed to her crotch area.
L.S. was seen by Dr. Rogan, the Children’s Advocacy Center
doctor. Dr. Rogan found signs of irritation, redness, tenderness
and swelling around L.S.’s vagina and rectum/anus. All signs
were not normal. He also observed a white viscous discharge
matter in the same area. Samples were gathered for a rape kit,
said kit was turned over to the Pennsylvania State Police for
further action.
[T]he State Police took possession of L.S.’s underpants she was
wearing the night of the incident. The underpants and the rape
kit were transported to the PSP [Pennsylvania State Police]
crime lab for analysis.
A search warrant was obtained for [Appellant’s] residence.
At the time of the search, PSP took possession of throw rugs,
garbage can, nine paper towels or tissues that had been used
and deposited into the garbage can.
* * *
On March 16, 201[5], police obtained a search warrant for
[Appellant’s] DNA and obtained a sample the next day.
Trial Court Opinion, 8/10/17, at 1–3.
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Police filed a criminal information at Wyoming County Court of
Common Pleas Docket Number 207-2015, charging Appellant with one count
each of rape, statutory sexual assault: complainant under sixteen years old
and the defendant is eleven years or more older, involuntary deviate sexual
intercourse with a child, involuntary deviate sexual intercourse: complainant
less than thirteen years old, aggravated indecent assault of a child,
aggravated indecent assault without consent, aggravated indecent assault:
complainant less than thirteen years old, aggravated indecent assault:
complainant less than sixteen years old and the defendant is four or more
years older, indecent assault: complainant less than thirteen years old,
corruption of minor, indecent assault without consent, and indecent assault:
complainant less than sixteen years old and defendant is four or more years
older.4
Police filed an additional affidavit of probable cause against Appellant
on May 29, 2015, asserting that the Pennsylvania State Police received
information regarding Appellant’s alleged sexual assault of a different minor
child, B.V., when the child was three years old. The trial court summarized
that incident as follows:
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4 18 Pa.C.S. §§ 3121(c), 3122.1(b), 3123(b), 3123(a)(7), 3125(b),
3125(a)(1), 3125(a)(7), 3125(a)(8), 3126(a)(7), 6301(a), 3126(a)(1),
3126(a)(8), respectively.
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B.V. stated the first time [Appellant] touched her was at
her Aunt Amy’s5 house for a sleepover. While she was sleeping
she heard a noise and thought Aunt Amy got up. [Appellant]
had been in the room with B.V. and when Amy came into the
room to check on the children, [Appellant] hid under the bed.
B.V. was sleeping in bed with one of the other children and
[Appellant] woke her up and took her into the bathroom and
touched her. [Appellant] then took [B.V.] by the hand into the
bathroom and touched her privates with his hand. Upon being
asked where [Appellant] touched B.V. she pointed to her vaginal
area to indicate where she was touched. [Appellant] touched
her with the tip of his fingers over her clothes in the vaginal
area. B.V. did not touch [Appellant] and said that he was
wearing jeans and a shirt. [Appellant] then took B.V. back to
the bedroom and told her not to tell anyone.
Trial Court Opinion, 8/10/17, at 4.
On December 1, 2015, police filed a criminal information at Wyoming
County Court of Common Pleas Docket Number 434-2015 regarding B.V.,
charging Appellant with one count of corruption of a minor: defendant over
age eighteen, three counts of indecent assault: complainant less than
thirteen, and two counts of endangering the welfare of children.6
Appellant pled guilty as noted above on January 8, 2016. An
evaluation by Paula B. Burst of the Pennsylvania Sexual Offenders
Assessment Board (“SOAB”) disclosed Appellant’s prior convictions in Ohio of
two counts of gross sexual imposition of a ten-year-old girl. Trial Court
____________________________________________
5 The trial court also revealed that Appellant’s former paramour was a
woman named Amy and that Appellant requested to speak to her while he
was in custody. Trial Court Opinion, 8/10/17, at 3.
6 18 Pa.C.S. §§ 6301(a)(1)(ii), 3126(a)(7), and 4304(a)(1), respectively.
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Opinion, 8/10/17, at 6. Following a hearing on April 11, 2016, the trial court
found Appellant to be an SVP. Id. at 7.
The trial court reviewed “an extensive Pre Sentence Investigation
report [“PSI”] and evaluative summary”7 and held a sentencing hearing on
April 13, 2016. Trial Court Opinion, 8/10/17, at 7. At Docket Number 207-
2015, the trial court sentenced Appellant to a term of imprisonment of 120
to 240 months, the statutory maximum. At Docket Number 434-2015, the
court sentenced Appellant to a consecutive term of incarceration of thirty to
sixty months, the statutory maximum.
Appellant filed a post-sentence motion on April 14, 2016, which the
trial court denied on April 15, 2016. Defense counsel also filed a motion for
leave to withdraw as counsel on April 14, 2016, which the trial court granted
on April 15, 2016, and contemporaneously appointed new counsel for
Appellant. Order, 4/15/16. Appellant did not file a direct appeal.
On November 22, 2016, Appellant filed a pro se petition for collateral
relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§
9541-9546.8 The trial court appointed counsel. It appears there was a
____________________________________________
7 The PSI report is not contained in the record certified on appeal.
8 The record contains a letter from newly appointed counsel to Appellant
that states:
Under Pennsylvania law, a judge has 120 days to rule on a
post sentence motion. Once the [c]ourt rules on the motion, an
(Footnote Continued Next Page)
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PCRA hearing on June 7, 2017, but the certified record lacks a transcript
from the hearing. The trial court, on June 9, 2017, entered an order dated
June 7, 2017, stating in pertinent part, “Based upon the Stipulation of
Counsel and upon agreement of [Appellant],” . . . “the use of hearsay
evidence by the [SOAB] has no merit.” Order, 6/9/17. However, the trial
court noted that due to “extenuating circumstances,” a direct appeal was not
filed. Id. The trial court, therefore, reinstated Appellant’s appellate rights.
Appellant filed timely counseled notices of appeal, which we consolidated for
appeal on August 30, 2017. Both the trial court and Appellant complied with
Pa.R.A.P. 1925.
Initially, we must resolve appellate counsel’s request to withdraw.
Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc).
(Footnote Continued) _______________________
appellant then has 30 days to file a timely appeal. In
anticipation of the coming deadline for the [c]ourt to rule, we
pulled the sealed documents relating to your case and
discovered that there appears to have been a mix up regarding
the post sentence motion. It appears that the motion was
denied on April 15, 2016. However, the motion did not have the
usual listing of parties served at the bottom. This normally
indicates who would have received a copy of the ruling, but
without the list[,] it is unclear as to who actually was served with
a copy. I have attached a letter I received that further states
that [defense counsel] did not receive a copy. [Defense counsel]
indicated he was unaware of the ruling.
Because of the date of ruling, a traditional appeal would
now be untimely and your rights to appeal would be quashed. In
light of this, I suggest that you file a post-trial motion/PCRA.
PCRA petition, 11/22/16, at supplement to page 7.
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See Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)
(“When faced with a purported Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.”).
There are procedural and briefing requirements imposed upon an
attorney who seeks to withdraw on appeal. The procedural mandates are
that counsel must:
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) furnish a copy
of the brief to [his client]; and 3) advise [his client] that he or
she has the right to retain private counsel or raise additional
arguments that the [client] deems worthy of the court’s
attention.
Cartrette, 83 A.3d at 1032 (citation omitted).
In addition, our Supreme Court, in Santiago, stated that an Anders
brief 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.
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Appellant’s counsel has complied with the first prong of Santiago by
providing a summary of the procedural history in the Anders brief.9 He has
satisfied the second prong by referring to any evidence in the record that he
believes arguably supports the appeal. Counsel also set forth his conclusion
that the appeal is frivolous and stated his reasons for that conclusion, with
appropriate support. Moreover, counsel filed a separate motion to withdraw
as counsel, wherein he stated that he examined the record and concluded
that the appeal is wholly frivolous. Further, counsel has attempted to
identify and develop any issues in support of Appellant’s appeal.
Additionally, counsel sent a letter to Appellant. While counsel originally
failed to attach a copy of this letter to the withdrawal petition, following our
December 5, 2017 order directing same, counsel provided proper notification
to this Court on December 8, 2017, and attached a copy of the letter to
Appellant to his Anders brief. In the letter, counsel informed Appellant that
he had filed an Anders brief, and he apprised Appellant of his rights in light
of the motion to withdraw as counsel. On December 18, 2017, Appellant
filed a response, which included an Application for Substitution of Appointed
Counsel, supra note 2, that we dismiss as moot, infra.
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9 Counsel has failed to report record citations in his procedural and factual
summary, in contravention of Pa.R.A.P. 2119(c). We admonish counsel that
it “is not this Court’s responsibility to comb through the record seeking the
factual underpinnings of [Appellant’s] claim.” Irwin Union Nat. Bank &
Tr. Co. v. Famous, 4 A.3d 1099, 1103 (Pa. Super. 2010) (citing
Commonwealth v. Mulholland, 702 A.2d 1027, 1034 n.5 (Pa. 1997)).
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Based on the foregoing, we conclude that counsel has met the
procedural and briefing requirements of Anders and Santiago for
withdrawal. Therefore, we now have the responsibility to make an
independent judgment regarding whether the appeal is, in fact, wholly
frivolous. Commonwealth v. Tukhi, 149 A.3d 881, 886 (Pa. Super. 2016).
In the Anders brief, counsel presents the following issues for our
review:
(I) The reasons for sentencing in the statutory range as they
relate to [Appellant’s] prior record were already factored into the
Standard Range Guidelines and, as such, the court improperly
enhanced an already enhanced sentence.
II. Documents obtained by the Probation Department
concerning [Appellant’s] conviction in Ohio constituted ex parte
research because the Probation Department employees are
employees of the court.
III. The sentencing court’s use of the ages of the victims as
aggravating factors was improper as the ages constituted
elements of the offense for the purpose of grading and, as such,
the sentencing court enhanced an already enhanced sentence.
IV. The sentencing court’s use of information from the [SVP]
hearing and [SVP] Assessment violated the Confrontation Clause
of the State and Federal Constitutions because the full panoply
of standard objections, including hearsay, were unavailable
during testimony of the SOAB witness.
V. That certain of the reasons for aggravating the sentence of
[Appellant] were no different than any similar criminal event by
any similar criminal defendant.
VI. That the sentencing court failed to take into account any
mitigating circumstances when fashioning the sentence.
Anders Brief at 14–15, 17, 19–21 (footnote omitted).
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These issues present a challenge to the discretionary aspects of
Appellant’s sentence. Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right, and his challenge in this
regard is properly viewed as a petition for allowance of appeal. 42 Pa.C.S. §
9781(b); Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987);
Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must satisfy a four-part
test. We evaluate: (1) whether Appellant filed a timely notice of appeal; (2)
whether Appellant preserved the issue at sentencing or in a motion to
reconsider and modify sentence; (3) whether Appellant’s brief includes a
concise statement of the reasons relied upon for allowance of appeal; and
(4) whether the concise statement raises a substantial question that the
sentence is appropriate under the Sentencing Code. Commonwealth v.
Carrillo-Diaz, 64 A.3d 722, 725 (Pa. Super. 2013). An appellant must
articulate the reasons the sentencing court’s actions violated the Sentencing
Code. Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010);
Sierra, 752 A.2d at 912–913.
In the instant case, Appellant filed a timely appeal, and the issues,
except Issue VI, were properly preserved in his post-sentence motion. The
Anders brief does not contain a concise statement of the reasons relied
upon for allowance of appeal with respect to the discretionary aspects of a
sentence pursuant to Pa.R.A.P. 2119(f). The absence of such statement,
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however, is not an impediment to our review of the discretionary-sentencing
claims. See Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super.
2015) (noting where counsel has filed an Anders brief, “we do not consider
counsel’s failure to submit a Rule 2119(f) statement as precluding review of
whether Appellant’s issue is frivolous.”).
Issue VI, that the trial court failed to consider mitigating factors, is
waived because Appellant failed to raise it in his post-sentence motion. Post
Sentence Reconsideration Motion, 4/14/16. Even if not waived, the issue
does not raise a substantial question. A claim that the trial court failed to
consider mitigating factors in sentencing generally does not raise a
substantial question. Commonwealth v. Rhoades, 8 A.3d 912, 918–919
(Pa. Super. 2010). See Commonwealth v. Johnson, 961 A.2d 877, 880
(Pa. Super. 2008) (claim that court failed to consider mitigating factors in
imposing consecutive sentences did not raise substantial question);
Commonwealth v. Bullock, 868 A.2d 516, 529 (Pa. Super. 2005) (where
no specific provision of sentencing code or fundamental norm is identified in
claim that court failed to consider mitigating factors, no substantial question
raised). Furthermore, the issue lacks merit. The court received and
reviewed the PSI report and entertained comment regarding Appellant’s
abusive childhood. N.T., 4/13/16, at 9. When a trial court receives a PSI
report, we assume the court was aware of the relevant information
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regarding the defendant’s character and weighed it with other relevant
mitigating factors. Rhoades, 8 A.3d at 919.
Issue II, while raising a substantial question, Commonwealth v.
Macias, 968 A.2d 773, 776 (Pa. Super. 2009) (allegation that the court
considered an impermissible sentencing factor raises a substantial question),
is waived as well. Appellant suggests the trial court’s reliance on the
Probation Department’s use of records from Ohio substantiating Appellant’s
guilty pleas to two separate offenses of Gross Sexual Imposition involving
minor children, in that they formed the basis for Appellant’s prior record
score, was error. The case relied upon by counsel, Commonwealth v.
McClure, 172 A.3d 668 (Pa. Super. 2017), is not relevant and is
distinguishable because it involved ex parte communication between the
court and counsel and did not involve documents utilized in sentencing.
More importantly, however, defense counsel asserted at sentencing that the
prior record score of two, as determined by the Probation Department in
reliance on the Pennsylvania equivalent to the Ohio convictions, was correct.
N.T., 4/13/16, at 7. Counsel never asserted in his presentence
memorandum or at the sentencing hearing that the Probation Department’s
reliance on the Ohio indictment or Ohio sentencing order was improper.
Indeed, the asserted reason for claiming such improper reliance was to
suggest that the prior record score should have been zero not two,
Appellant’s Sentencing Memorandum, 4/5/16, a conclusion that Appellant
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ultimately retracted at the sentencing hearing. N.T., 4/13/16, at 7. Finally,
the trial court’s June 9, 2017 order confirmed Appellant’s agreement to the
use of the Ohio documents. Order, 6/9/17. Thus, this claim is waived.
We address issues I, III, and V together as they are all related.10 The
issues are inartfully worded and lacking in clarity. Nevertheless, we discern
from our review of the Anders brief that counsel is alleging that the trial
court sentenced Appellant outside of the Sentencing Guidelines to the
statutory maximum by improperly relying on factors that already were
considered by the Guidelines. Anders brief at 14, 17, 20. This Court has
held that claims of a sentencing court imposing a sentence outside of the
standard guidelines without stating adequate reasons on the record presents
a substantial question. Commonwealth v. Antidormi, 84 A.3d 736, 759
(Pa. Super. 2014) (citing Commonwealth v. Robinson, 931 A.2d 15, 26
(Pa. Super. 2007)). The factors Appellant underscores are the court’s
references to Appellant’s prior criminal record, the ages of the child victims,
and the fact that Appellant was in a position of trust as a caregiver when he
committed the crimes. Id.We note our standard of review:
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. In this context, an
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10 We note that Issue IV is moot in light of our disposition regarding
Appellant’s SVP status and is discussed infra.
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abuse of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015)
(internal quotation marks and citations omitted). A sentencing court “is
required to consider the particular circumstances of the offense and the
character of the defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10
(Pa. Super. 2002). “In particular, the court should refer to the defendant’s
prior criminal record, his age, personal characteristics and his potential for
rehabilitation.” Id.If a court imposes a sentence outside of the Sentencing Guidelines,
which are not mandatory, Commonwealth v. Walls, 926 A.2d 957, 964
(Pa. 2007), “it must provide a written statement setting forth the reasons for
the deviation[,] and the failure to do so is grounds for resentencing.” Id. at
963. Moreover, “the central focus of substantive appellate review with
respect to a sentence outside of the guidelines is whether the sentence is
‘unreasonable.’” Id. As our Supreme Court explained, our examination of a
sentence is deferential because the “sentencing court is in the best position
to determine the proper penalty for a particular offense based upon an
evaluation of the individual circumstances before it.” Id. at 961 (citation
and quotation marks omitted). “Simply stated, the sentencing court
sentences flesh-and-blood defendants and the nuances of sentencing
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decisions are difficult to gauge from the cold transcript used upon appellate
review.” Id.
Pursuant to the Sentencing Code, we may vacate a sentence if we find
1) that the court intended to sentence within the guidelines but “applied the
guidelines erroneously;” 2) a sentence was imposed within the guidelines
“but the case involves circumstances where the application of the guidelines
would be clearly unreasonable;” or 3) “the sentencing court sentenced
outside the sentencing guidelines and the sentence is unreasonable.” 42
Pa.C.S. § 9781(c). “In all other cases the appellate court shall affirm the
sentence imposed by the sentencing court.” Id.
Here, the record indicates that the sentences imposed were outside of
the Sentencing Guidelines. Docket Number 207-2015 Guideline Sentence
Form, 4/14/16; Docket Number 434-2015 Guideline Sentence Form,
4/14/16. We conclude, however, that the sentences were not unreasonable.
We recently reiterated:
In [Commonwealth v.] Shugars, [895 A.2d 1270, 1274–
1275 (Pa. Super. 2006),] we explained that while “it 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 mitigated range,”
a trial court may “use prior conviction history and other factors
already included in the guidelines if, they are used to
supplement other extraneous sentencing information.” 895 A.2d
at 1275 (quoting Commonwealth v. Simpson, 829 A.2d 334,
339 (Pa. Super. 2003)) (emphasis in original).
Commonwealth v. Rush, 162 A.3d 530, 545–546 (Pa. Super. 2017),
appeal denied, 170 A.3d 1049 (Pa. 2017).
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That the trial court mentioned Appellant’s prior criminal history or
noted the fact that Appellant was in a position of trust when he committed
the crimes does not demonstrate that the court “double counted” sentencing
factors. The trial court considered the sentencing factors set forth in 42
Pa.C.S. § 9721(b), including the impact on the victims’ lives, the threat
Appellant posed to the community, the likelihood Appellant would re-offend,
and Appellant’s lack of remorse. N.T., 4/13/16, at 17–18. Therefore, we
conclude that the reference to the ages of the victims and Appellant’s
position of trust were just two factors among several that led to the
sentences outside of the Guidelines. Shugars, 895 A.2d at 1275. The trial
court deviated from the Guidelines and imposed sentences that took into
account “the protection of the public, the gravity of the offense as it relates
to the impact on the life of the . . . community, and the rehabilitative needs
of the defendant.” 42 Pa.C.S. § 9721(b); Commonwealth v. Sheller, 961
A.2d 187, 190 (Pa. Super. 2008). As such, we reject Appellant’s claims and
find that the sentences imposed were not unreasonable.
There remains the matter of Appellant’s Application for Change of
Appointed Counsel and the issues Appellant asserts in support of it. We
have addressed the propriety of Appellant’s sentence and the court’s
reference to the Ohio convictions, which are two of the three reasons
identified by Appellant in seeking substituted counsel. Response to
Counsel’s Anders Brief and Application for Change of Appointed Counsel,
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12/18/17, at unnumbered 1–2. The third reason is Appellant’s claim that his
SVP designation is unconstitutional in light of Commonwealth v. Muniz,
135 A.3d 178 (Pa. 2017). For the following reasons, we reverse the order
finding that Appellant is an SVP and remand for the trial court to advise
Appellant of his obligations under SORNA.
Applying Muniz, 164 A.3d 1189, Apprendi v. New Jersey, 530 U.S.
466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013), in
Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), this Court
found that 42 Pa.C.S. § 9799.24(e)(3) of SORNA is unconstitutional. As a
result, we held that “trial courts cannot designate convicted defendants SVPs
(nor may they hold SVP hearings) until our General Assembly enacts a
constitutional designation mechanism.” Butler, 173 A.3d at 1218. Here,
Appellant was determined to be an SVP under the now unconstitutional SVP
mechanism. In light of Butler, we must reverse the trial court’s SVP order
and remand this case to the trial court for the sole purpose of issuing the
appropriate notice under 42 Pa.C.S. § 9799.23. Id.
We have independently reviewed the record in order to determine if
counsel’s assessment concerning the frivolous nature of the present appeal
is correct. Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.
2015) (after determining that counsel has satisfied the technical
requirements of Anders and Santiago, this Court must conduct an
independent review of the record to determine if there are additional, non-
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frivolous issues overlooked by counsel). Following our independent review
of the record, we conclude that counsel overlooked the SVP issue that has
now resulted in a remand to the trial court. Accordingly, because the appeal
includes a non-frivolous issue, we cannot permit counsel to withdraw at this
time. See Commonwealth v. Orellana, 86 A.3d 877, 882 (Pa. Super.
2014) (“Anders withdrawal is only permissible in an appeal consisting solely
of frivolous issues.”). Therefore, we deny counsel’s petition to withdraw.
Petition to Withdraw as Counsel denied. Application for Change of
Appointed Counsel dismissed as moot. April 14, 2016 SVP order reversed.
Judgments of sentence affirmed in all other respects. Case remanded for
proceedings consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/2018
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