Com. v. Luttrell, G. ( 2023 )

J-S22040-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GARRETT ASHLEY LUTTRELL :
:
Appellant : No. 1108 WDA 2022
Appeal from the Judgment of Sentence Entered August 30, 2022
In the Court of Common Pleas of Butler County
Criminal Division at CP-10-CR-0001014-2018
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED: July 21, 2023
Garrett Ashley Luttrell (Appellant) appeals from his designation as a
sexually violent predator (SVP) following his no-contest plea to corruption of
minors and endangering the welfare of children (EWOC).1 We affirm.
On June 7, 2018, Appellant was arraigned on 156 counts of involuntary
indecent assault of a person less than 16 years old, 156 counts of aggravated
indecent assault of a person less than 16 years old, and statutory sexual
assault of a child. See 18 Pa.C.S.A. §§ 3123(a)(7), 3125(a)(8), 3122.1(b).2
The charges arose from Appellant’s sexual abuse of the victim over the course
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1 See 18 Pa.C.S.A. §§ 6301(a)(1)(ii), 4304(a)(1).
2The Commonwealth also charged Appellant with rape of a child, 18 Pa.C.S.A.
§ 3121(c); EWOC, id. § 4304(a)(1); and statutory sexual assault of child
between 11 and 16 years old, id. § 3122.1(b).
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of four years, beginning when the victim was 10 years old. On July 27, 2021,
Appellant entered a negotiated no-contest plea to corruption of minors and
EWOC. The trial court subsequently ordered an SVP assessment.
On March 22, 2022, the trial court held an SVP hearing at which Julia
Lindemuth (Ms. Lindemuth), a member of Pennsylvania’s Sex Offender
Assessment Board (SOAB), testified. The trial court designated Appellant as
an SVP on May 17, 2022. See Order, 5/17/22. On August 30, 2022, the trial
court sentenced Appellant to an aggregate one to two years’ incarceration,
after which Appellant filed the instant timely appeal. Appellant and the trial
court have complied with Pa.R.A.P. 1925.
Appellant presents the following issue:
Was the evidence insufficient to sustain the trial court’s
determination that [Appellant] is a sexually violent predator where
it was predicated on an expert opinion lacking a constitutionally
and legally adequate foundation?
Appellant’s Brief at 4.
Appellant challenges the sufficiency of the evidence underlying his SVP
designation. Id. at 14-15. Appellant claims Ms. Lindemuth improperly
equated his no-contest plea with a guilty plea. Id. at 18. Appellant asserts
his no-contest plea is not an admission of guilt:
Unlike a guilty plea, a nolo contendere plea does not involve an
acknowledgement as to having committed an illegal act. Rather,
the nolo contendere plea admits that the allegations, if proven,
meet the elements of the offense or offenses charged. Hence, in
pleading no contest, [Appellant] did not admit to having
committed the acts alleged.
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Id. at 19 (citations omitted).
Appellant further argues that Ms. Lindemuth improperly relied on
inadmissible hearsay and “unproven conduct.” Id. at 20. Appellant cites
caselaw recognizing the dangers of hearsay evidence. Id. at 21-22.
According to Appellant, Ms. Lindemuth “made it clear that not only did she
rely upon inadmissible hearsay in rendering her opinion, but she assumed that
the facts contained in those hearsay documents were true.” Id. at 23.
Appellant maintains:
This is a constitutionally and legally inadequate foundation to
establish the alleged facts in any adjudicative setting and,
derivatively, for [Ms. Lindemuth’s] expert opinion and the trial
court’s finding.
Id. at 23-24.
Finally, Appellant challenges the trial court’s designation of Appellant as
an SVP. Id. at 24. He asserts the trial court “place[d] undue weight on []
Appellant’s plea of nolo contendere,” and improperly assumed the veracity of
the unproven allegations relied upon by Ms. Lindemuth. Id. at 25. Appellant
states, “Accepting their veracity is in violation of his fundamental rights to due
process.” Id.
We review an SVP designation to determine whether the Commonwealth
presented clear and convincing evidence that the defendant meets the
statutory definition of an SVP. Commonwealth v. Hollingshead, 111 A.3d
186, 189 (Pa. Super. 2015). “As with any sufficiency of the evidence claim,
we view all evidence and reasonable inferences therefrom in
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the light most favorable to the Commonwealth.” Id. (citation omitted). An
“expert’s opinion, which is rendered to a reasonable degree of professional
certainty, is itself evidence.” Commonwealth v. Fuentes, 991 A.2d 935,
944 (Pa. Super. 2010) (en banc).
For designation as an SVP, the Commonwealth must first show an
individual “has been convicted of a sexually violent offense as set forth in
section 9795.1.” See 42 Pa.C.S.A. § 9792. Instantly, Appellant pled nolo
contendere to corruption of minors, a Tier I predicate offense. See 42
Pa.C.S.A. § 9799.14(b)(8). The Commonwealth thus satisfied this first
requirement.
“After conviction but before sentencing, a court shall order an individual
convicted of a sexually violent offense to be assessed by the board.” Id.
§ 9799.24(a). The SOAB is required to undertake a comprehensive
assessment of a defendant convicted of a sexually violent offense by
considering the fifteen factors set forth in 42 Pa.C.S.A. § 9799.24(b)(1)-(4).
These factors include, but are not limited to:
(1) Facts of the current offense, including:
(i) Whether the offense involved multiple victims.
(ii) Whether the individual exceeded the means necessary to
achieve the offense.
(iii) The nature of the sexual contact with the victim.
(iv) Relationship of the individual to the victim.
(v) Age of the victim.
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(vi) Whether the offense included a display of unusual cruelty
by the individual during the commission of the crime.
(vii) The mental capacity of the victim.
(2) Prior offense history, including:
(i) The individual’s prior criminal record.
(ii) Whether the individual completed any prior sentences.
(iii) Whether the individual participated in available programs
for sexual offenders.
(3) Characteristics of the individual, including:
(i) Age.
(ii) Use of illegal drugs.
(iii) Any mental illness, mental disability or mental
abnormality.
(iv) Behavioral characteristics that contribute to the
individual’s conduct.
(4) Factors that are supported in a sexual offender assessment
field as criteria reasonably related to the risk of reoffense.
42 Pa.C.S.A. § 9799.24.
Here, the Commonwealth presented Ms. Lindemuth as an expert in
evaluating and assessing whether an individual meets the criteria necessary
to be classified as an SVP.3 N.T., 3/22/22, at 6. Ms. Lindemuth testified that
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3 Ms. Lindemuth explained that she has conducted over 500 sex offender
assessments. Id. at 6.
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although afforded the opportunity, Appellant did not participate in the
assessment. Id. at 8.
Ms. Lindemuth explained her method of assessing a non-participant:
[O]nce I receive the information gathered by the investigator, I
review all of the documents that are provided to me and then …
what I am looking for is a mental abnormality or personality
disorder that is the impetus or the driving … factor behind the
behavior.
….
The factors are delineated in the statute. And I have them listed
in the report.
Id. at 8.
Ms. Lindemuth confirmed that she evaluates each of the statutory
factors. Id. at 8-9. She testified there are not a particular number of factors
that must be present to ascertain whether someone is an SVP:
[Ms. Lindemuth:] The factors help us outline and categorize
behaviors and patterns of behavior. So, under the statute, what
I’m looking for is a pattern of behavior that could be identified as
a mental abnormality or personality disorder that may be driving
the offending.
….
… [T]here are typically two pathways of offending that we
know in the field is related to lifetime offending. That is chronic
antisociality and chronic sexual deviance. So, antisociality can be
a personality disorder. So it’s a pattern of behavior over time
that’s related to ongoing criminality.
The sexually deviant pathway is looking at a pattern of
behavior that is spanning a course of time, and generally what
we’re looking for is more than six months. So we’re looking for a
pattern of sexualized behavior for more than six months that may
be able to identify why someone is acting out sexually.
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Id. at 9-10.
With respect to Appellant, Ms. Lindemuth testified:
[Appellant] met the criteria for unspecified paraphilic disorder.
And unspecified paraphilic disorder – there was evidence that the
child was pubescent. And, so, unspecified paraphilic disorder …
meets that diagnostic criteria for unspecified paraphilic disorder in
that we had sexual behaviors spanning the course of multiple
years with what I would assume, based on the age, is an early
pubescent child.
...
[] Paraphilic disorders are lifetime disorders. They can come and
go, based on stressors and opportunity and other factors in a
person’s life; but they cannot be extinguished. So they are
lifelong, without a cure.
...
When somebody has a paraphilic disorder, they have a sexual
attraction – in this case, a sexual attraction to a[n] early
pubescent minor. That is a lifelong disorder. So, having that
disorder increases the likelihood that you will re-offend, versus
someone who does not have that disorder.
Id. at 12-13.
Ms. Lindemuth also testified about Appellant’s predatory behavior:
[T]he definition under the statute for “predatory” is an act directed
at a stranger or a person with whom a relationship has been
initiated, established, maintained or promoted, in whole or in part,
in order to support or facilitate victimization. So it was my opinion
[Appellant] did meet the criteria – or the law’s definition … of
“predatory” because he was a member of [the victim’s] household
… which would have him being tasked with her care; and instead
he used that trust that was afforded to him and made the child a
sex partner. So, in my opinion, that meets the criteria of
predatory.
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Id. at 14. Ms. Lindemuth explained that Appellant had “an expression of
sexually maladaptive behaviors over the course of time, spanning more than
six months.” Id. at 16. She opined, within a reasonable degree of
professional certainty, that Appellant meets the criteria for classification as an
SVP. Id. at 15.
In crediting Ms. Lindemuth’s testimony, the trial court explained:
[Appellant] at the time of the criminal acts was in his early 30s,
while the victim was between the ages of 10 and 14. [Appellant]
is the victim’s stepfather. This relationship was particularly
important to Ms. Lindemuth. She testified, “he is her stepfather.
He had access to her. He sexually assaulted her. He used his
relationship as a stepfather to make her a sexual partner.” [N.T.,
3/22/22,] at 49. Further, she stated, “And so he preyed upon his
stepdaughter, what should have been a parent-child relationship,
and used that parent-child relationship and altered it into a sexual
relationship.[”] Id. at 51.
...
In terms of reoffending, [Ms. Lindemuth] additionally went
on to testify to two pathways for someone to reoffend. The
pathways associated with reoffending are chronic antisociality and
sexual deviancy. She testified to the fact [Appellant] was
engaging in sexual acts with a minor over the span of
approximately four years to be akin to sexual deviancy. Ms.
Lindemuth answered “Yes” to the question, “… [Appellant’s]
behaviors in the instant offense are consistent with sexual
deviancy, right?” Id. at 49. Sexual deviancy is directly linked in
the DSM-V4 by falling under paraphilic disorders.
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4 The Diagnostic and Statistical Manual of Mental Disorders (DSM-V) is a
widely accepted tool in the mental health profession.
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Trial Court Opinion, 11/29/22, at 3. The trial court emphasized Ms. Lindemuth
“testified to not solely focusing on hearsay documents but stated: ‘I look at
the totality of the information, but I’m focused on what he pled to because
that’s what he’s acknowledging.’” Id. at 4 (quoting N.T., 3/22/22, at 17).
The trial court agreed with Ms. Lindemuth’s assessment. The trial court
found Appellant is a sexually violent predator, “as he was convicted of a
sexually violent offense, suffers from an unspecified paraphilic disorder and
his behaviors demonstrated a sexual deviancy.” Id. at 4.
We discern no error in Ms. Lindemuth’s consideration of the facts
underlying Appellant’s no-contest plea. In fact, 42 Pa.C.S.A. § 9799.24(b)(1)
required Ms. Lindemuth to evaluate the facts. Contrary to Appellant’s
assertion, a no-contest plea “is treated in the same manner as a guilty plea in
terms of its effect upon a particular case.” Commonwealth v. Williams,
660 A.2d 614, 619 n.1 (Pa. Super. 1995).
To the extent Appellant challenges Ms. Lindemuth’s consideration of
hearsay evidence, this Court recently confirmed:
[A]n SOAB expert opinion falls within the general rules regarding
expert witnesses. As such, an SOAB expert’s opinion may be
based on facts or data that the expert has been made aware of or
personally observed so long as experts in the particular field
reasonably rely on those kinds of facts or data in forming an
opinion on the subject; the facts or data consulted need not be
admissible for the expert’s opinion to be admitted. See Pa.R.E.
702, 703 …. The SOAB expert must state the facts or data on
which the opinion is based. See Pa.R.E. 705 and Comment
(explaining otherwise inadmissible facts and data supporting
expert opinion are considered only to explain the basis for an
expert’s opinion, not as substantive evidence). Then, the rules of
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evidence place the full burden of exploration of facts and
assumptions underlying the testimony of an expert witness
squarely on the shoulders of opposing counsel’s cross-
examination….
Commonwealth v. Aumick, 2023 WL 3939850, 2023 Pa. Super. LEXIS 266,
*17-18 (Pa. Super. filed June 12, 2023) (en banc) (quoting Commonwealth
v. Prendes, 97 A.3d 337, 360-61 (Pa. Super. 2014)).
Given the[] statutory mandates, it is clear that the legislature
intended that the SOAB member consider more than the limited
facts included in a plea colloquy, and that the SOAB member
undertake to review and consider the information contained in
records provided by state, county and local agencies, offices and
entities in this Commonwealth when making an SVP assessment
and preparing a statutorily compliant written report. To be sure,
it would be the rare occasion on which the SOAB member
would be able to fulfill its statutory obligations if its SVP
assessments and written reports were limited to facts
contained in a plea colloquy, admitted into evidence, or
determined by the trier of fact.
Aumick, 2023 Pa. Super. LEXIS 266, *20 (emphasis added). Based on the
foregoing, Appellant’s challenge to Ms. Lindemuth’s consideration of hearsay
evidence does not merit relief. See id.Finally, the record supports the trial court’s determination that Appellant
has a personality disorder, unspecified paraphilic disorder, which makes him
likely to engage in predatory sexually violent offenses. See 42 Pa.C.S.A. §
9792. After reviewing the evidence in the light most favorable to the
Commonwealth, we conclude that clear and convincing evidence supported
the trial court’s designation of Appellant as an SVP.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2023
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