Com. v. Campinelli, J. ( 2018 )


Menu:
  • J-A27005-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    JOSEPH N. CAMPINELLI,
    Appellant                   No. 121 WDA 2017
    Appeal from the Judgment of Sentence November 29, 2016
    In the Court of Common Pleas of Allegheny County
    Criminal Division at No(s):
    CP-02-CR-0001697-2016
    CP-02-CR-0001698-2016
    CP-02-CR-0005549-2016
    BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
    MEMORANDUM BY BENDER, P.J.E.:                   FILED JANUARY 17, 2018
    Appellant, Joseph N. Campinelli, appeals from the judgment of
    sentence of an aggregate term of 27-54 years’ incarceration, imposed after
    a jury convicted him of sexual offenses committed against three minor
    female victims.   In this appeal, Appellant challenges the discretionary
    aspects of his sentence.   After careful review, we vacate the trial court’s
    order designating Appellant as a Sexually Violent Predator (SVP), but
    otherwise affirm his judgment of sentence, and remand for the trial court to
    advise him of his obligations under Pennsylvania's Sex Offender Registration
    and Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10 et seq.
    The trial court summarized the facts adduced at trial as follows:
    J-A27005-17
    [T]he evidence presented at trial established that [E.Q.] met
    [Appellant] when she was 13 years old. At the time, [E.Q.] was
    in and out of placement, sometimes living with her mother and
    sometimes living at various facilities including Circle C, the
    Termon Avenue facility and Bethesda Children's Home. She
    would often go to [Appellant]'s house to get away from her
    mother or to run away from her current placement. Beginning
    from the first time she met him, whenever [E.Q.] went to
    [Appellant]'s house, she would perform oral sex on him and
    afterwards he would give her money and marijuana. He also
    served her vodka and an alcoholic beverage known as a "buzz
    bomb[.”]
    On two (2) separate occasions, [E.Q.] brought her friend
    [H.B.], whom she knew from placement and her cousin, [T.C.,]
    with her to [Appellant]'s house. When she brought [H.B], then
    age 13, after [E.Q.] performed oral sex on [Appellant], he
    instructed her to ask [H.B] if he could perform oral sex on her.
    [E.Q.] discussed the proposition with [H.B], who requested $250
    as payment. [H.B] then went into [Appellant]'s bedroom and
    found [Appellant] sitting on the bed with his pants unzipped and
    his penis exposed. [H.B.] performed oral sex on [Appellant] but
    then stopped. Later, [Appellant] gave her $250.
    When she was 15 years old, [E.Q.] brought her cousin,
    [T.C.], to [Appellant]'s house while she was on a home pass
    from her placement at Bethesda Children's Home. Again, upon
    arriving, [E.Q.] went into the [Appellant]'s bedroom while [T.C.]
    waited outside. When [T.C.] was alone with [Appellant], he
    asked her for oral sex, and offered to give her money if she
    would "fuck him[."] He then pulled his penis out of his pants
    and jiggled it, then grabbed her head and attempted to force it
    down onto his penis. [T.C.] refused to perform oral sex on
    [Appellant] and tried to leave the room, prompting [Appellant] to
    call her a "skank." When [Appellant] stood in front of the door
    and blocked her exit, [T.C.] hit him, causing him to fall over and
    allowing her to leave the room.
    The Commonwealth also presented a series of text
    messages between [Appellant] and [E.Q.], wherein he
    repeatedly encouraged her to lie during her testimony or to
    simply not show up for trial.
    Trial Court Opinion (TCO), 6/20/17, at 2-3.
    -2-
    J-A27005-17
    The Commonwealth charged Appellant, in three separate criminal
    informations,1 as follows:
    On January 27, 2016, [Appellant] was charged at [CP-02-
    CR-0001697-2016] with the following: Count 1 - Involuntary
    Deviate Sexual Intercourse ("IDSI") (F1), 18 Pa.C.S.[] §
    3123(a)(7); Count 2 - Unlawful Contact with a Minor (F1), 18
    Pa.C.S.[] § 6318(a)(1); Count 3 - Corruption of Minors (F3), 18
    Pa.C.S.[] § 6301(a)(1)(ii); Count 4 - Endangering the Welfare of
    Children (F3), 18 Pa.C.S.[] § 4304(a)(1); Count 5 - Promoting
    Prostitution of a Minor (F3), 18 Pa.C.S.[] § 5902(b)(13); Count 6
    - Indecent Assault (M2), 18 Pa.C.S.[] § 3126(a)(8); Count 7 -
    Indecent Exposure (M1), 18 Pa.C.S.[] § 3127(a); Count 8 -
    Sell/Furnishing Liquor to a Minor (M3), 18 Pa.C.S.[] § 6310.1(a).
    On January 19, 2016, [Appellant] was charged at [CP-02-
    CR-0001698-2016] with the following: Count 1 - IDSI (F1), 18
    Pa.C.S.[] § 3123(a)(7); Count 2 – Unlawful Contact with a Minor
    (F1), 18 Pa.C.S.[] § 6318(a)(1); Count 3 – Promoting
    Prostitution of a Minor (F3), 18 Pa.C.S.[] § 5902(b)(13); Count 4
    - Corruption of Minors (F3), 18 Pa.C.S.[] § 6301(a)(1)(ii); Count
    5 - Endangering the Welfare of Children (F3), 18 Pa.C.S.[] §
    4304(a)(1); Count 6 - Indecent Assault (M2), 18 Pa.C.S.[] §
    3126(a)(8); and Count 7 - Indecent Exposure (M1), 18 Pa.C.S.[]
    § 3127(a).
    On March 17, 2016, [Appellant] was charged at [CP-02-
    CR-0005549-2016] with the following: Count 1- [Attempted]
    IDSI (F1), 18 Pa.C.S.[] § 901(a); Count 2 - Unlawful Contact
    with a Minor (F1), 18 Pa.C.S.[] § 6318(a)(1); Count 3 - Criminal
    Solicitation - Statutory Sexual Assault (F1), 18 Pa.C.S.[] §
    902(a); Count 4 – Promoting Prostitution of a Minor (F3), 18
    Pa.C.S.[] § 5902(b)(16); Count 5 – Endangering the Welfare of
    Children (F3), 18 Pa.C.S.[] § 4304(a)(1); Count 6 - Corruption
    of Minors (F3), 18 Pa.C.S.[] § 6301(a)(1)(ii); Count 7 - Indecent
    Assault (M2), 18 Pa.C.S.[] § 3126(a)(8); Count 8 - Indecent
    ____________________________________________
    1
    Presumably, the three criminal informations pertained to each of the three
    minor victims. It is not immediately clear which information and related
    case number pertains to each victim, but as will become apparent, infra,
    that distinction is not important for the purposes of this appeal.
    -3-
    J-A27005-17
    Exposure (M1), 18 Pa.C.S.[] § 3127(a); Count 9 - Harassment
    (M3), 18 Pa.C.S.[] § 2709(a)(4); Count 10 - Open Lewdness
    (M3), 18 Pa.C.S.[] § 5901; Count 11 - Sale of Tobacco (S), 18
    Pa.C.S.[] § 6305(a)(2); Count 12 - False Imprisonment of Minor
    (F2), 18 Pa. C.S.A. § 2903(b).
    Appellant’s Brief at 10-11.    The Commonwealth withdrew Count 12 (false
    imprisonment) at CP-02-CR-0005549-2016 prior to trial.
    Appellant’s consolidated jury trial, which began on September 15,
    2016, ended with his conviction on all counts, except for his acquittal at
    Count 4 of CP-02-CR-0005549-2016. On November 29, 2016, the trial court
    sentenced Appellant to consecutive terms of 9-18 years’ incarceration for the
    first count at each criminal information.       That is, the court sentenced
    Appellant to 9-18 years’ incarceration for each count of IDSI, representing a
    separate sentence for each of the three minor victims. Appellant received
    no further penalty by the trial court at each of the remaining 22 counts. A
    determination regarding Appellant’s SVP status was deferred until a hearing
    was held on March 3, 2017.
    Appellant   filed   a   timely   post-sentence   motion   challenging   the
    discretionary aspects of his sentence on December 9, 2016, which the trial
    court denied on December 15, 2016.          Appellant filed a timely notice of
    appeal on January 13, 2017. Following the SVP hearing held on March 3,
    2017, the trial court designated Appellant as an SVP in a March 9, 2017
    order purporting to amend the November 29, 2016 judgment of sentence.
    Appellant now presents the following questions for our review:
    -4-
    J-A27005-17
    I.      Did the [t]rial [c]ourt fail to begin its sentencing
    consideration with the proper sentencing guidelines, as
    required by settled case law and 42 Pa.C.S.[] § 9781(d)?
    II.      Did the [t]rial [c]ourt fail to adequately consider and apply
    all of the relevant sentencing criteria, including the
    protection    of    the    public,   the   gravity   of   the
    offense/violation, and especially [Appellant]'s character
    and rehabilitative needs, as required under 42 Pa.C.S.[] §
    9721(b)[]?
    Appellant’s Brief at 9.
    Both of Appellant’s claims concern the trial court’s discretion in
    imposing his sentence.
    Challenges to the discretionary aspects of sentencing do not
    entitle an appellant to review as of right. Commonwealth v.
    Sierra, 
    752 A.2d 910
    , 912 (Pa. Super. 2000). 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).
    Commonwealth v. Evans, 
    901 A.2d 528
    , 533 (Pa. Super.
    2006), appeal denied, 
    589 Pa. 727
    , 
    909 A.2d 303
    (2006)
    (internal citations omitted).   Objections to the discretionary
    aspects of a sentence are generally waived if they are not raised
    at the sentencing hearing or in a motion to modify the sentence
    imposed. Commonwealth v. Mann, 
    820 A.2d 788
    , 794 (Pa.
    Super. 2003), appeal denied, 
    574 Pa. 759
    , 
    831 A.2d 599
    (2003).
    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).
    A substantial question exists “only when the appellant advances
    a colorable argument that the sentencing judge's actions were
    -5-
    J-A27005-17
    either: (1) inconsistent with a specific provision of the
    Sentencing Code; or (2) contrary to the fundamental norms
    which underlie the sentencing process.” Sierra, supra at 912-
    13.
    As to what constitutes a substantial question, this Court
    does not accept bald assertions of sentencing errors.
    Commonwealth v. Malovich, 
    903 A.2d 1247
    , 1252 (Pa. Super.
    2006). An appellant must articulate the reasons the sentencing
    court's actions violated the sentencing code. 
    Id. Commonwealth v.
    Moury, 
    992 A.2d 162
    , 170 (Pa. Super. 2010).
    Instantly, we note that Appellant preserved his sentencing claims in a
    timely post-sentence motion, filed a timely notice of appeal, and provided a
    Rule 2119(f) statement in his brief. Moreover, the Commonwealth concedes
    that   Appellant’s   claims   raise   substantial   questions   for   our   review.
    Commonwealth’s Brief at 10.       We agree.     See Commonwealth v. Cook,
    
    941 A.2d 7
    , 11 (Pa. Super. 2007) (“A claim that the sentencing court
    misapplied the Sentencing Guidelines presents a substantial question.”);
    Commonwealth v. Fullin, 
    892 A.2d 843
    , 847 (Pa. Super. 2006) (holding a
    claim that “the [t]rial [c]ourt failed to consider the factors set forth in 42
    Pa.C.S.[] § 9721(b) … raise[s] a substantial question”). Accordingly, we will
    review the merits of Appellant’s sentencing claims.
    As is now axiomatic,
    [s]entencing is a matter vested in the sound discretion of the
    sentencing judge, and a sentence will not be disturbed on appeal
    absent a[n] … abuse of discretion. In this context, an 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.
    -6-
    J-A27005-17
    Commonwealth v. Hoch, 
    936 A.2d 515
    , 517–18 (Pa. Super. 2007)
    (citation omitted).
    In his first issue, Appellant contends that the trial court incorrectly
    calculated his Prior Record Score (“PRS”) under the sentencing guidelines, or
    that the court’s calculation was ambiguous, ostensibly rendering his
    sentence manifestly unreasonable.     See Commonwealth v. Scullin, 
    607 A.2d 750
    , 754 (Pa. Super. 1992) (“We find, in conformity with existing case
    law, that although a sentencing court is vested with the right, if it properly
    exercises its discretion, to sentence outside of the guidelines, it must begin
    from the correct starting point.”).   Where it is clear that a court failed to
    apply the appropriate guidelines as a starting point, this Court must vacate
    the sentence and remand for resentencing. 
    Id. Appellant argues
    that:
    In the cases at bar, it is unclear from the record which, if
    any, Sentencing Guidelines the [t]rial [c]ourt utilized.
    Sentencing Counsel argued at sentencing that [Appellant]'s only
    conviction was from the mid-1980's, and that this stale criminal
    history should have resulted in a [PRS] of zero for [Appellant].
    After imposing an aggregate sentence of 27-54 years total state
    incarceration, the [t]rial [c]ourt stated, "I would also say that
    the guidelines having been submitted were a 12 and a 4.
    However, I put weight on, not so much on the [PRS], because I
    agree with [defense counsel]." This statement from the [t]rial
    [c]ourt does not indicate which set of Sentencing Guidelines was
    utilized in sentencing [Appellant].
    Appellant’s Brief at 22-23 (citations omitted).
    We disagree. The trial court had no discretion to ignore Appellant’s
    prior conviction for purposes of calculating his PRS. Appellant’s contention
    that a “stale” criminal history “should have resulted in a [PRS] of zero” does
    -7-
    J-A27005-17
    not find support in any existing case law. 
    Id. Appellant cites
    to no authority
    suggesting that a trial court may ignore prior convictions, however dated, in
    calculating a PRS.       As this Court has previously stated, neither “the
    Sentencing Code nor the sentencing guidelines place any time limits on
    offenses to be included in the [PRS], as such criminal history is relevant to
    sentencing.” Commonwealth v. Diamond, 
    945 A.2d 252
    , 259 (Pa. Super.
    2008) (quotation marks and citation omitted).
    In this context, the trial court court’s statement, that it did not place
    much weight on Appellant’s PRS, makes perfect sense.             The court was
    obligated to calculate Appellant’s PRS mechanically and without regard to
    the staleness of Appellant’s prior conviction.       However, because the trial
    court    retains   discretion   to   depart   from   the   guideline   sentencing
    recommendations, it could accept defense counsel’s argument to afford
    those recommendations lesser weight because of the staleness of the
    conviction underlying the PRS calculation.       Accordingly, we ascertain no
    abuse of the trial court’s discretion to place less weight on the guidelines
    than it would have done had Appellant’s prior conviction been more recent.
    Moreover, the sentence guideline forms completed by the trial court clearly
    indicate that a PRS of 4 was applied for each of the three sentences. See
    Guideline Sentence Form, 11/29/2016, at 1 (single page) (CP-02-CR-
    0001697-2016); Guideline Sentence Form, 11/29/2016, at 1 (single page)
    (CP-02-CR-0001698-2016); Guideline Sentence Form, 11/29/2016, at 1
    -8-
    J-A27005-17
    (single page) (CP-02-CR-0005549-2016).        For these reasons, we conclude
    that Appellant’s first claim lacks merit.
    Next, Appellant contends that the trial court failed to consider relevant
    sentencing criteria when imposing his sentence. See 42 Pa.C.S. § 9721(b)
    (“[T]he court shall follow the general principle that the sentence imposed
    should call for confinement that is 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.”) (emphasis added). Specifically, Appellant argues:
    The record in these cases insufficiently supports the [t]rial
    [c]ourt's reasoning behind [Appellant]'s sentence. The record
    does not contain any mention of [Appellant]'s rehabilitative
    needs (including his mental health issues), the [t]rial [c]ourt did
    not provide its reasoning for why imposing a sentence of total
    confinement was necessary, and the [t]rial [c]ourt dismissed
    [Appellant]'s physical ailments because he "had at least some of
    those ailments" during the incidents at issue. The cumulative
    sum of this insufficient and barren record is a manifestly
    unreasonable sentence.
    Appellant’s Brief at 28-29.
    The trial court addressed this claims as follows:
    At the conclusion of the trial, this [c]ourt ordered a Pre-Sentence
    Investigation Report, and later acknowledged it had read and
    considered [it] prior to the sentencing hearing. At the hearing,
    this [c]ourt gave [Appellant] the opportunity to speak, which he
    declined, and listened to the arguments of his attorney, who
    noted that [Appellant] was 77 years old and currently suffering
    from high blood pressure, heart disease for which he required a
    defibrillator and orthopedic issues requiring his use of a walker.
    This [c]ourt also considered the arguments of the Assistant
    District Attorney and victim impact statements from [H.B.] and
    -9-
    J-A27005-17
    [E.Q.]. It then placed its reasons for imposing sentence on the
    record:
    THE COURT: Mr. Campinelli, although I recognize that you
    have a number of physical ailments, I also recognize that
    you would have had at least some of these ailments when
    you were sexually assaulting these three young ladies.
    You have taken something from these young ladies that
    can never be returned to them. You have taken away their
    ability to trust. You were called their godfather. They
    trusted you.
    You had sex with one of the children for a period of years.
    A third child you tried to solicit. You have a pattern of
    abuse hurting all three victims. All the girls were about 15
    years old. They're going to have to carry this with them
    for the rest of their lives.
    [Sentencing Hearing (SH), 11/29/16, at 9].
    As the record reflects, this [c]ourt appropriately read and
    considered the pre-sentence investigation report, considered the
    factors and severity of the present offense, evaluated
    [Appellant]'s potential for rehabilitation and imposed a sentence
    which took all of these factors into consideration.
    Neither is the [Appellant]'s claim that the sentence was
    excessive due to his "advanced age and failing health"
    persuasive. [Appellant]'s past medical history is significant for a
    heart attack with subsequent implantation of a pacemaker,
    removal of a kidney due to cancer and gastric bypass surgery.
    In May, 2016, [Appellant] fell and fractured his hip, necessitating
    surgical repair with plates and screws. He now walks with a
    walker.     He takes blood pressure medication.           Although
    [Appellant] has some physical and medical issues, he is not
    seriously ill and he is able to walk and drive, as the victims
    testified.
    TCO at 6-7.
    First, Appellant asserts that the trial court failed to consider certain
    factors regarding his physical and mental health at the time of sentencing.
    However, it is clear that the trial court acknowledged, generally, Appellant’s
    - 10 -
    J-A27005-17
    “ailments,” SH at 9, after defense counsel brought specific concerns to the
    court’s attention at the sentencing hearing, SH at 3-4. The fact that the trial
    court failed to methodically list each specific illness or injury in its statement
    is not a serious attack on the court’s sentencing discretion. “[A] sentencing
    judge may satisfy requirement of disclosure on the record of his reasons for
    imposition of a particular sentence without providing a detailed, highly
    technical statement.” Commonwealth v. Hunzer, 
    868 A.2d 498
    , 514 (Pa.
    Super. 2005).
    Moreover, at the outset of Appellant’s sentencing hearing, the trial
    court stated that it had “ordered, read[,] and considered the [p]re[s]entence
    [r]eport.” SH at 2. As this Court stated in Moury, “[w]here the sentencing
    court had the benefit of a presentence investigation report…, we can assume
    the sentencing court ‘was aware of relevant information regarding the
    defendant's    character     and   weighed   those   considerations    along   with
    mitigating    statutory    factors.’”   
    Moury, 992 A.2d at 171
      (quoting
    Commonwealth v. Devers, 
    546 A.2d 12
    , 18 (Pa. 1988)).                  Appellant did
    not object to the contents of the presentence report at his sentencing
    hearing, nor does he argue now that the presentence report inadequately
    listed or summarized his various health concerns.              Rather, Appellant’s
    argument narrowly focuses on the trial court’s failure to detail each of his
    physical and mental health issues, or that the sentence imposed was
    inconsistent with due consideration of those matters.
    - 11 -
    J-A27005-17
    We are unconvinced by these arguments. The court was aware of and
    expressly considered Appellant’s presentence report, and there is nothing
    about the imposed sentence which demonstrates, implicitly, that those
    concerns were wholly ignored rather than simply outweighed, in the court’s
    view, by other sentencing factors, such as “the protection of the public,
    [and] the gravity of the offense as it relates to the impact on the life of the
    victim and on the community[.]” 42 Pa.C.S. § 9721(b). It is also apparent
    from the record that the trial court found that the gravity of Appellant’s
    crimes – a repeated pattern of sexual offenses committed against minor
    victims – as well as the need to protect the public from such acts, ultimately
    outweighed its consideration of Appellant’s rehabilitative needs.
    Second, Appellant contends that his “physical ailments indicated that
    the protection of the public was at least mitigated by his immobilization.”
    Appellant’s Brief at 28. We disagree. There may be numerous crimes that
    Appellant cannot physically commit due to his present condition, thereby
    limiting   the   deterrent   effect   of    incarceration   with   respect   to   those
    hypothetical crimes.     However, the trial court appears to be justified in
    noting that the deterrent effect of incarceration in this case is not mitigated
    by Appellant’s ostensible immobilization with regard to crimes for which he
    was convicted. It would be a strange contention for the trial court to argue
    that incarceration was necessary for the protection of the public to prevent
    crimes wholly different in physical requirements from the crimes for which
    Appellant was actually convicted - crimes which he was able commit with
    - 12 -
    J-A27005-17
    most or all of the physical ailments he faces now.2       Thus, we agree with the
    trial court that Appellant’s physical ailments were not particularly germane
    to the protection-of-the-public sentencing factor in the manner suggested by
    Appellant in the specific circumstances of this case.
    Third, Appellant contends that the trial court “did not place any
    consideration on … the fact that the acts in these cases did not consist of
    any violence, force or threat of force, and were not brutal acts in any way.”
    Appellant’s Brief at 30. As noted by the Commonwealth, this contention is
    simply belied by the record. Commonwealth’s Brief at 18 n.6. As provided
    above, the trial court’s summary of the trial evidence regarding victim T.C.
    indicated that Appellant
    pulled his penis out of his pants and jiggled it, then grabbed
    [T.C.’s] head and attempted to force it down onto his penis.
    [T.C.] refused to perform oral sex on [Appellant] and tried to
    leave the room, prompting [Appellant] to call her a "skank."
    When [Appellant] stood in front of the door and blocked her
    exit, [T.C.] hit him, causing him to fall over and allowing her to
    leave the room.
    TCO at 3 (emphasis added).           Appellant attempted to use force to commit
    illegal sexual acts with T.C., and T.C. was required to use force to prevent
    him from committing those acts.            Thus, we reject Appellant’s non-violent
    characterization of his crimes.
    ____________________________________________
    2
    Nowhere in Appellant’s argument does he contend that his health has
    deteriorated significantly since the time he committed his crimes.
    - 13 -
    J-A27005-17
    Fourth, we recognize that Appellant’s aggregate sentence may appear
    harsh to some, especially in light of the fact that he has been effectively
    condemned to live out his remaining years in prison.3 However, the moral
    and ethical issues underpinning such a characterization of his sentence are
    not resolved, or at least not clearly resolved, in favor of the notion that
    Appellant’s advanced age and/or ill-health should be a dispositive factor in
    determining the reasonableness of his sentence. The question before us is
    not whether Appellant’s sentence is harsh (perhaps, a de facto life sentence
    is always harsh).      The question before us is whether Appellant’s sentence is
    so unduly harsh that it is manifestly unreasonable.
    We have rejected each of Appellant’s specific assertions as to why that
    might be the case.        We feel compelled to reject the general notion that
    permeates throughout Appellant’s arguments, which is that his advanced
    age and/or ill-health must be substantial or dispositive considerations at
    sentencing.     Certainly, a sentencing court cannot ignore or disregard a
    defendant’s health or age when constructing a sentence.               However,
    reasonable arguments can be made as to whether advanced age and/or ill-
    health, considered in isolation, should weigh in favor of more, or less,
    ____________________________________________
    3
    Appellant was born in 1939, and his aggregate sentence of 27-54 years’
    incarceration commenced on November 29, 2016. Accordingly, Appellant
    will not be eligible for parole until after his 104th birthday.
    - 14 -
    J-A27005-17
    punishment.4       Thus, we reject the general notion that Appellant’s ill-health
    or advanced age somehow compelled the trial court to sentence him less
    harshly than it would have had Appellant been younger and healthier. For
    each    of   the   aforementioned       reasons,   we   conclude   that   Appellant’s
    discretionary-aspects-of-sentencing claim lacks merit.
    ____________________________________________
    4
    To the extent that Appellant is making such an argument, he appeals to a
    general and perhaps unfounded sentiment that offenders who are closer to
    the end of their lives, due to ill-health and/or advanced age, are less
    deserving of punishment than those expected to live longer. It is not clear
    to this Court why that would necessarily be the case. When criminal
    defendants are young, the argument is made that because their greater
    potential for rehabilitation (compared to older counterparts), and because of
    their immature decision-making capabilities (again, compared to older
    defendants), they are less deserving of punishment. This theory has been
    vindicated by relatively recent landmark decisions by the United States
    Supreme Court.
    The corollary to such an argument, however, could be that the old are
    more deserving of punishment for their crimes than younger defendants,
    because there is less hope and time for rehabilitation (compared to younger
    defendants), because they are more accountable for their actions due to
    superior decision-making capabilities (compared to younger defendants). Of
    course, each case might present a unique set of circumstances that defies
    these general notions of fairness in sentencing with respect to a defendant’s
    age.    All of these real and theoretical concerns play a part in how one
    conceives of the ‘harshness’ of a given sentence.      All this is to say that we
    reject Appellant’s discretionary aspects claim to the extent that it relies on
    such general and debatable notions of fairness with regard to age or health-
    based distinctions in sentencing. It is not clear to this Court that the elderly
    should be afforded sentencing discounts when they commit serious crimes,
    as were committed in this case.        Although Appellant does not explicitly
    frame his arguments in such a manner, we detect and reject the implicit
    suggestion that age and/or ill-health, when sufficiently advanced, must
    override other sentencing considerations, such as the gravity of the offense
    or the protection of the public.
    - 15 -
    J-A27005-17
    Finally, we are compelled to sua sponte vacate an illegal aspect of
    Appellant's sentence, namely, the March 3, 2017 order deeming him an SVP.
    See Commonwealth v. Butler, No. 1225 WDA 2016, *6 (Pa. Super. filed
    Oct. 31, 2017) (concluding that the issue discussed, infra, implicates the
    legality of a defendant's sentence).5          In Commonwealth v. Muniz, 
    164 A.3d 1189
    (Pa. 2017), our Supreme Court held that the registration
    requirements under SORNA constitute criminal punishment, thus overturning
    prior decisions deeming those registration requirements civil in nature. 
    Id. at 1218.
    On October 31, 2017, this Court ruled that,
    since our Supreme Court has held [in Muniz] that SORNA
    registration requirements are punitive or a criminal penalty to
    which individuals are exposed, then under Apprendi [v. New
    Jersey, 
    530 U.S. 466
    (2000),] and Alleyne [v. United States,
    
    133 S. Ct. 2151
    , 2163 (2013)], a factual finding, such as whether
    a defendant has a “mental abnormality or personality disorder
    that makes [him or her] likely to engage in predatory sexually
    violent offenses[,]” 42 Pa.C.S.[] § 9799.12, that increases the
    length of registration must be found beyond a reasonable doubt
    by the chosen fact-finder. Section 9799.24(e)(3) identifies the
    trial court as the finder of fact in all instances and specifies clear
    and convincing evidence as the burden of proof required to
    designate a convicted defendant as an SVP. Such a statutory
    scheme in the criminal context cannot withstand constitutional
    scrutiny.
    ____________________________________________
    5
    We note that Appellant filed an Application for Post-Submission
    Communication on November 21, 2017, directing this Court’s attention to
    the ruling in Butler, which had been filed after Appellant presented his case
    at oral argument on October 24, 2017. We granted Appellant’s application
    on November 30, 2017. Appellant filed a post-submission letter to this
    Court on December 7, 2017, seeking application of Butler.
    - 16 -
    J-A27005-17
    Butler, No. 1225 WDA 2016, at *11.             Accordingly, the Butler panel held
    that 42 Pa.C.S. § 9799.24(e)(3) is unconstitutional. 
    Id. at *11–12.
    In light of Butler, inter alia,6 we are compelled to conclude that the
    March 9, 2017 order deeming Appellant an SVP, which effectively amended
    ____________________________________________
    6
    In its response to Appellant’s post-submission letter, the Commonwealth
    argues, after acknowledging this Court’s ruling in Butler, as well as our
    authority to correct illegal sentences sua sponte, that this Court lacks the
    authority to act to correct Appellant’s illegal SVP order. The Commonwealth
    contends that “this appeal is not from Appellant’s SVP designation.”
    Commonwealth’s Response to Appellant’s Post-Submission Communication,
    12/7/17, at 2. As the Commonwealth sees it:
    On November 29, 2016, Appellant was sentenced. Counseled
    post-sentence motions were filed on December 9, 2016, and the
    trial court denied them on December 16, 2016. Appellant filed a
    Notice of Appeal on January 13, 2017, … "from the Judgment of
    Sentence imposed on November 29, 2016, which became final
    on December 15, 2016, when the Post-Sentence Motion was
    denied." The SVP hearing did not occur until March 9, 2017, and
    the "Amended – Order of Sentence" deeming Appellant a[n] SVP
    was issued that day. Appellant never amended his present
    appeal to include the March 9, 2017 Order deeming him a[n]
    SVP or filed a separate notice of appeal from [that] order.
    Time limitations for taking appeals are strictly construed
    and cannot be extended as a matter of grace. Commonwealth
    v. Valentine, 
    928 A.2d 346
    (Pa. Super. 2007). Consequently, it
    is the position of the Commonwealth that Appellant's
    categorization as a[n] SVP is not ripe for review where he never
    appealed from the March 9, 2017 Order. It was a separate
    [and] final order. See Commonwealth v. Whanger, 
    30 A.3d 1212
    , 1215 (Pa. Super. 2011), appeal denied, 
    42 A.3d 293
    (Pa.
    2012) (where defendant chose to have SVP after sentencing
    hearing, the SVP order was not a modification or rescission of
    the sentencing order. "The sentencing order was one thing; the
    SVP order was another."). In Butler, the SVP determination
    occurred prior to sentencing and was therefore reflected on the
    sentencing order as part of the sentence such that review of the
    (Footnote Continued Next Page)
    - 17 -
    J-A27005-17
    _______________________
    (Footnote Continued)
    legality of the SVP order was a proper subject matter of the
    appeal. Whereas, in Appellant's case, Appellant's judgment of
    sentence was final without regard to the SVP status
    determination and he properly filed an appeal on January 13,
    2017. Appellant had two choices after the "Amended - Order of
    Sentence" containing the SVP designation was filed on March 9,
    2017 - seek to amend his Notice of Appeal or file a new notice of
    appeal from the March 9th order. He did neither, and, therefore
    the illegality of the March 9, 2017 SVP Order is not a matter
    properly before this Court. This Court should find the issue
    presented in the Supplemental Letter for Appellant waived
    without prejudice for him to raise it on collateral review.
    
    Id. We disagree
    with the Commonwealth’s assessment in light of Butler
    and Muniz. In Whanger, the appellant argued that the trial court lacked
    jurisdiction to modify the original sentencing order with a post-sentence SVP
    order outside of the 30-day window set forth in 42 Pa.C.S. § 5505 (“Except
    as otherwise provided or prescribed by law, a court upon notice to the
    parties may modify or rescind any order within 30 days after its entry,
    notwithstanding the prior termination of any term of court, if no appeal from
    such order has been taken or allowed.”). In rejecting this claim, the
    Whanger Court reasoned:
    [Whanger]'s reliance on Section 5505 is misplaced. An SVP
    determination is a collateral consequence of a conviction and is
    not a sentence. Commonwealth v. Leidig, 
    598 Pa. 211
    , 
    956 A.2d 399
    , 404–05 (2008). That being the case, the SVP order
    could not possibly be a modification or rescission of the
    sentencing order. The sentencing order was one thing; the SVP
    order was another. Because the SVP order did not modify the
    sentence, Section 5505—which limits a court's ability to modify
    its orders—is not applicable.
    
    Whanger, 30 A.3d at 1215
    (emphasis added).
    It is clear that the Whanger Court’s rejection of the appellant’s
    Section 5505 claim was explicitly premised on prior rulings that had deemed
    SVP determinations as non-criminal, collateral consequences of criminal
    convictions. The Butler Court explicitly rejected that notion in light of
    (Footnote Continued Next Page)
    - 18 -
    J-A27005-17
    the November 29, 2016, judgment of sentence, is illegal. See Butler, No.
    1225 WDA 2016, at *12. Accordingly, we vacate that portion of the
    sentencing order, and remand Appellant's case for the trial court to
    _______________________
    (Footnote Continued)
    Muniz. Post-Butler, SVP determinations must be conceptualized as part-
    and-parcel of the underlying criminal sentence.      Both are punitive
    consequences of the same underlying criminal act(s). They constitute an
    aggregate criminal sentence.
    Thus, we are not convinced by the Commonwealth’s argument that
    Whanger compels this Court to overlook, on jurisdictional grounds, the
    illegality of the SVP order entered after Appellant filed his notice of appeal.
    Either the trial court lacked the authority to issue the SVP order because of
    the time constraints set forth in Section 5505, as Whanger was effectively
    overruled by Muniz and Butler on that point; or the trial court had the
    authority to amend the sentencing order, and that amendment was illegal
    under Butler. Either way, the most prudent course of actions is to vacate
    the illegal aspects of Appellant’s aggregate judgment of sentence, which
    necessarily includes the order designating him to be an SVP. It would be an
    incredible waste of judicial resources, as well as a waste of the limited
    resources of the Allegheny County Offices of the District Attorney and the
    Public Defender, to kick this proverbial can down the road to collateral
    review.
    Alternatively, this Court could deem premature Appellant’s notice of
    appeal, and deem it to have been filed on March 9, 2017, pursuant to
    Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the announcement of a
    determination but before the entry of an appealable order shall be treated as
    filed after such entry and on the day thereof.”). Here, the entire SVP
    proceeding is null and void in light of Butler.          Therefore, the SVP
    “determination” has not, and is not, being challenged on its merits, even
    though the entry of the SVP order constitutes the final, appealable order in
    this case. Thus, in the spirit of Rule 905(a)(5), this Court could deem
    Appellant’s notice of appeal as having been filed on March 9, 2017.
    Regardless of the theory under which we proceed, and in light of the shifting
    legal landscape in this area, we are content that our disposition in this case,
    to vacate the SVP order and remand pursuant to Butler, is the most
    appropriate course of action.
    - 19 -
    J-A27005-17
    determine under what tier of SORNA Appellant must register, and to provide
    him with the appropriate notice of his registration obligations under 42
    Pa.C.S. § 9799.23. See 
    id. at *13.
    Portion of sentencing order deeming Appellant an SVP vacated.
    Judgment of sentence affirmed in all other respects.    Case remanded.
    Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 1/17/2018
    - 20 -