Com. v. Vagts, L.

J-S73021-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LANNING VAGTS
Appellant No. 379 MDA 2014
Appeal from the Judgment of Sentence of November 26, 2013
In the Court of Common Pleas of Luzerne County
Criminal Division at No.: CP-40-CR-0003793-2012
BEFORE: BOWES, J., WECHT, J., and MUSMANNO, J.
MEMORANDUM BY WECHT, J.: FILED DECEMBER 19, 2014
Lanning Vagts appeals from the judgment of sentence entered
November 26, 2013. Counsel for Vagts has petitioned to withdraw as
counsel pursuant to Anders v. California, 386 U.S. 738 (1967), on the
ground that Vagt’s issue on appeal is wholly frivolous.1 We grant the
petition to withdraw, and we affirm the judgment of sentence.
The trial court set forth the background of this case as follows:
On February 14, 2013, [Vagts] entered a plea of guilty to the
offense of incest.[2] [Vagts] acknowledged during the time
frame of August 1, 2003 and March 31, 2004, he engaged in sex
with his biological daughter, a juvenile. The [c]ourt directed
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1
See also Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981),
abrogated in part by Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009).
2
18 Pa.C.S.A. § 4302.
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[Vagts’] evaluation for sexually violent predator [(“SVP”)] status
and a hearing was conducted on November 19, 2013 at the
conclusion of which [the court] indicated the matter would be
reconvened on November 27, 2013 at which time a
determination would be announced regarding SVP status and
sentence imposed. At that time, the [court] determined [Vagts]
was a sexually violent predator and imposed sentence [of not
less than eighteen months nor more than one hundred twenty
months’ incarceration with credit for time served]. A post
sentence motion nunc pro tunc was denied on January 2, 2014.
An appeal was filed on January 30, 2014 and an order issued
pursuant to Pa.R.A.P. 1925(b) on January 31, 2014. Thereafter,
on February 18, 2014, [the court] entered an order granting
defense counsel[’]s request for an extension of time within which
to file a concise statement of [e]rrors complained of on appeal.
The concise statement was subsequently received on April 7,
2014.
Trial Court Opinion (“T.C.O.”), 4/30/2014, at 1-2 (quotation marks and
record citations omitted).
On September 4, 2014, counsel filed an Anders brief presenting an
issue that might arguably support an appeal. Counsel filed her petition to
withdraw as counsel on the same day, in which she states that, after a
conscientious examination of the record, she has determined that the appeal
would be wholly frivolous. See Petition for Leave to Withdraw as Counsel,
9/04/2014, at unnumbered page 1. Attached to the petition is a copy of her
letter to Vagts advising him of her desire to withdraw as counsel and Vagts’
right to retain new counsel or proceed with his appeal pro se, and providing
him with a copy of the Anders brief filed with this Court. See id. at Exhibit
“A”. Vagts did not respond to counsel’s petition to withdraw.
[I]n the Anders brief that accompanies . . . counsel’s petition to
withdraw, counsel must: (1) provide a summary of the
procedural history and facts, with citations to the record; (2)
refer to anything in the record that counsel believes arguably
supports the appeal; (3) set forth counsel’s conclusion that the
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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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Anders counsel must also provide a copy of the Anders petition
and brief to the appellant, advising the appellant of the right to
retain new counsel, proceed pro se or raise any additional points
worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical requirements of
Anders, this Court will deny the petition to withdraw and
remand the case with appropriate instructions (e.g., directing
counsel either to comply with Anders or file an advocate’s brief
on Appellant’s behalf). By contrast, if counsel’s petition and
brief satisfy Anders, we will then undertake our own review of
the appeal to determine if it is wholly frivolous. If the appeal is
frivolous, we will grant the withdrawal petition and affirm the
judgment of sentence. However, if there are non-frivolous
issues, we will deny the petition and remand for the filing of an
advocate’s brief.
Commonwealth v. O’Malley, 957 A.2d 1265, 1266 (Pa. Super. 2008)
(citations omitted).
In the instant case, counsel has complied with the Anders and
Santiago requirements. She has submitted a brief that summarizes the
case and cites to the record, see Anders Brief at 2-6; refers to anything
that might arguably support the appeal, id. at 6-11; and sets forth her
reasoning and conclusion that the appeal is frivolous, id. at 11-12. See
Santiago, 978 A.2d at 361. She has filed a petition to withdraw as counsel,
sent Vagts a letter advising him she found no non-frivolous issues, provided
Vagts with a copy of the Anders brief, and notified Vagts of his right to
retain new counsel or proceed pro se. Vagts has not responded. “Once
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counsel has satisfied the [Anders] requirements, it is then this Court’s duty
to conduct its own review of the trial court’s proceedings and render an
independent judgment as to whether the appeal is, in fact, wholly frivolous.”
Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (citation
omitted).
Counsel identifies one potential issue for our review in her Anders
brief: “Whether the trial court erred by finding that Mr. Vagts is a sexually
violent predator where the Commonwealth failed to present clear and
convincing evidence sufficient to demonstrate that he is likely to engage in
predatory sexually violent offenses?” Anders Brief at 2.
In the Anders brief, counsel asserts as follows: “Mr. Vagts challenges
the sufficiency of the evidence that was used to support the trial court’s
conclusion that Mr. Vagts is a sexually violent predator, as statutorily
defined. Specifically, he asserts that there was insufficient evidence
presented by the Commonwealth of his likelihood of reoffending.” Id. at 6-
7. We agree with counsel that the issue is without merit.
Our standard for reviewing a sufficiency challenge to an SVP
determination is the following:
We do not weigh the evidence presented to the sentencing court
and do not make credibility determinations. Instead, we view all
the evidence and its reasonable inferences in a light most
favorable to the Commonwealth. We will disturb an SVP
designation only if the Commonwealth did not present clear and
convincing evidence to enable the court to find each element
required by the SVP statutes.
Commonwealth v. Whanger, 30 A.3d 1212, 1215 (Pa. Super. 2011)
(citation omitted).
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The determination of a defendant’s SVP status may only be
made following an assessment by the [Sexual Offenders
Assessment Board (“SOAB”)] and hearing before the trial
court. In order to affirm an SVP designation, we, as a
reviewing court, must be able to conclude that the fact-
finder found clear and convincing evidence that the
individual is a sexually violent predator. As with any
sufficiency of the evidence claim, we view all the evidence
and reasonable inferences therefrom in the light most
favorable to the Commonwealth. We will reverse a trial
court’s determination of SVP status only if the
Commonwealth has not presented clear and convincing
evidence that each element of the statute has been
satisfied.
The standard of proof governing the determination of SVP
status, i.e., “clear and convincing evidence,” has been
described as an “intermediate” test, which is more
exacting than a preponderance of the evidence test, but
less exacting than proof beyond a reasonable doubt.
* * *
The clear and convincing standard requires evidence that
is “so clear, direct, weighty, and convincing as to enable
the [trier of fact] to come to a clear conviction, without
hesitancy, of the truth of the precise facts [in] issue.”
Commonwealth v. Fuentes, 991 A.2d 935, 941-42 (Pa. Super.
2010) (en banc) (citations omitted).
An SVP . . . is defined as follows:
A person who has been convicted of a sexually violent
offense as set forth in section 9795.1 (relating to
registration) and who is determined to be a sexually
violent predator under section 9795.4 (relating to
assessments) due to a mental abnormality or personality
disorder that makes the person likely to engage in
predatory sexually violent offenses.
42 Pa.C.S.A. § 9792.3
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3
Appellant does not dispute that he was convicted of a
sexually violent offense.3
Moreover:
The process of determining SVP status is statutorily-
mandated and well-defined. The triggering event is a
conviction of one or more offenses specified in 42
Pa.C.S.A. § 9795.1, which, in turn, prompts the trial court
to order an SVP assessment by the SOAB. The Board’s
administrative officer assigns the matter to one of the
Board’s members, all of whom are “experts in the field of
behavior and treatment of sexual offenders.” 42 Pa.C.S.A.
§ 9799.3. At the core of the expert’s assessment is a
detailed list of factors, which are mandatory and are
designed as criteria by which the likelihood of reoffense
may be gauged.
Fuentes, 991 A.2d at 942 (citations omitted). According to the
statute:
An assessment shall include, but not be limited to, an
examination of the following:
* * *
(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. § 9795.4(b).
This Court further summarized:
The precise line of inquiry for the Board’s expert, as well as
any other expert who testifies at an SVP hearing, is
whether the defendant satisfied the definition of sexually
violent predator set out in the statute, that is, whether he
or she suffers from a mental abnormality or personality
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3
Like the appellant in Commonwealth v. Morgan, 16 A.3d 1165 (Pa.
Super. 2011), Vagts does not challenge his conviction for a sexually violent
offense, but disputes the determination that he is a sexually violent
predator.
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disorder that makes him or her more likely to engage in
predatory sexually violent offenses. The salient inquiry to
be made by the trial court is the identification of the
impetus behind the commission of the crime and extent to
which the offender is likely to reoffend.
In this context, a “mental abnormality” is a “congenital or
acquired condition of a person that affects the emotional or
volitional capacity of the person in a manner that
predisposes that person to the commission of criminal
sexual acts to a degree that makes the person a menace
to the health and safety of other persons.” 42 Pa.C.S.A.
§ 9792. Moreover, “predatory” conduct, which is
indispensable to the designation, is defined as an “act
directed at a stranger or at a person with whom a
relationship has been initiated, maintained or promoted, in
whole or in part, in order to facilitate or support
victimization.” [42 Pa.C.S.A. § 9792].
Fuentes, 991 A.2d at 943.
Commonwealth v. Morgan, 16 A.3d 1165, 1168-69 (Pa. Super. 2011).
At the SVP hearing, SVP board member Paula Brust, a psychologist
and counselor, testified that she performed a court-ordered evaluation of
Vagts and prepared a report of her findings to determine if he met the
criteria for an SVP. See Notes of Testimony (“N.T.”), 11/19/2014, at 11-12.
Pursuant to that report, she testified as follows:
The victim in this case was Mr. Vagts’ biological daughter, and
according to the victim he began to sexually assault her when
they lived in New York starting from age eight through when
they moved to Pennsylvania ending at age fifteen when she
moved out of the home with Mr. Vagts who had attained custody
of her when she was approximately nine years old. And during
that time, beginning when she was eight years old according to
the victim, her father would sexually assault her regularly,
several times a week for years. And it especially increased, she
stated, when they moved to Hazle Township and Mr. Vagts
would assault his daughter if she wanted to go out, hang with
her friends. He would force her to have sexual contact with him
repeatedly over the course of an eight-year period.
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Id. at 20-21. With regard to the factor at issue, likelihood of reoffense, 42
Pa.C.S.A. § 9795.4(b)(4), she stated:
Mr. Vagts has a sexually deviant pathway to offending. He has
assaulted a child over a long span of time. His disorder of
pedophilia and paraphilia not otherwise specified predisposes
him toward committing sexual offenses and those disorders
cause him to have internal drive that makes it likely he will
engage in predatory sexual behavior.
Id. at 31. Thus, she concluded “within a reasonable degree of professional
certainty” in her report and at the hearing that Vagts was likely to reoffend.
Id. at 33.
Conversely, Dr. Timothy Foley, an expert witness for Vagts in the field
of sexually violent predator treatment and evaluation, testified that he
disagreed with the assessment that Vagts was likely to reoffend because
“there is no use of an actuarial tool” in the SVP report. Id. at 65. However,
he also conceded that “[t]he actuarial tools are not perfect” and that the
SOAB “precludes the use of actuarial tools in SVP determinations.” Id. at
65, 73. Thus, the trial court found Ms. Brust’s testimony credible, and
“[w]hile [it] did not find Dr. Foley testified in an unprofessional manner or
lacked credibility, [the court was] unpersuaded in his use of a statistical tool
in arriving at the conclusion that [Vagts] would not be likely to reoffend.”
T.C.O. at 13; see also Whanger, 30 A.3d at 1215.
Therefore, we conclude that the Commonwealth presented clear and
convincing evidence to enable the court to find the element of likelihood of
reoffense required by the SVP statutes at 42 Pa.C.S.A. § 9795.4(b)(4).
Morgan, 16 A.3d at 1168-69. Accordingly, Vagts’ challenge to his SVP
determination on this ground is frivolous. Furthermore, upon independent
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review of the record, we find no other non-frivolous basis for appeal and
conclude that Vagts’ appeal is wholly frivolous. O’Malley, supra at 1266.
Judgment of sentence affirmed. Petition for leave to withdraw as
counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2014
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