Com. v. Lee, D.

J-S73036-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DONOVON NEAL LEE, :
:
Appellant : No. 1005 MDA 2014
Appeal from the Judgment of Sentence entered on May 14, 2014
in the Court of Common Pleas of Franklin County,
Criminal Division, No. CP-28-CR-0000954-2013
BEFORE: BOWES, WECHT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 22, 2014
Donovon Neal Lee (“Lee”) appeals from the judgment of sentence
imposed following his guilty plea to one count each of indecent assault and
corruption of minors.1 Additionally, Lee’s counsel, Ian M. Brink, Esquire
(“Attorney Brink”), has filed an Application to Withdraw as Counsel and an
accompanying brief pursuant to Anders v. California, 386 U.S. 738, 744
(1967) (hereinafter the “Anders Brief”). We grant Attorney Brink’s
Application to Withdraw as Counsel and affirm Lee’s judgment of sentence.
On April 19, 2013, Lee was charged with two counts of aggravated
indecent assault and one count each of indecent assault, unlawful contact
with a minor, corruption of minors and aggravated indecent assault of a
child. On August 28, 2013, Lee pled guilty to one count each of indecent
1
See 18 Pa.C.S.A. §§ 3126(a)(7), 6301(a)(1)(i).
J-S73036-14
assault and corruption of minors. On May 14, 2014, following a hearing, the
trial court determined that Lee met the criteria to be classified as a sexually
violent predator. Thereafter, the trial court sentenced Lee to an aggregate
sentence of time served to 23 months in prison, followed by 18 months of
probation. Lee filed a timely Notice of Appeal.
In his Anders Brief, Attorney Brink argues that the trial court erred
when it determined that Lee satisfied the criteria to be found a sexually
violent predator. See Anders Brief at 14.2
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010)
(citation omitted). Pursuant to Anders, when counsel believes an appeal is
frivolous and wishes to withdraw from representation, he must do the
following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel has
determined the appeal would be frivolous; (2) file a brief
referring to any issues that might arguably support the appeal,
but which does not resemble a no-merit letter; and (3) furnish a
2
In the Statement of Questions Involved contained in the Anders Brief,
Attorney Brink broadly identified the issue raised on appeal as “[w]hether
there are any issues of arguable merit that could be raised on direct appeal
presently before this Court?” Anders Brief at 8 (capitalization omitted).
However, in the Argument section of the Anders Brief, as well as in Lee’s
Concise Statement of Matters Complained of on Appeal, Attorney Brink has
identified the issue raised on appeal as whether the trial court erred when it
determined that Lee satisfied the criteria to be found a sexually violent
predator. See id. at 14; see also Concise Statement of Matters Complained
of on Appeal, 6/26/14, at 1.
-2-
J-S73036-14
copy of the brief to the defendant and advise him of his right to
retain new counsel, proceed pro se, or raise any additional points
he deems worthy of this Court’s attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)
(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009), our Supreme Court addressed the second requirement of Anders,
i.e., the contents of an Anders brief, and required that the brief
(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. “Once 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.” Edwards, 906 A.2d at 1228(citation omitted).
Here, Attorney Brink has complied with each of the requirements of
Anders. Attorney Brink indicates that he conscientiously examined the
record and determined that an appeal would be frivolous. Further, Attorney
Brink’s Anders brief comports with the requirements set forth by the
-3-
J-S73036-14
Supreme Court of Pennsylvania in Santiago. Finally, the record contains a
copy of the letter that Attorney Brink sent to Lee, advising him of his right to
proceed pro se or retain alternate counsel and file additional claims, and
stating Attorney Brink’s intention to seek permission to withdraw.
Accordingly, Attorney Brink has complied with the procedural requirements
for withdrawing from representation, and we will review Lee’s appeal to
determine whether it is frivolous.
The trial court set forth the relevant law, addressed Lee’s claim, and
concluded that it lacks merit. See Trial Court Opinion, 8/11/14, at 1-5. We
agree with the sound reasoning of the trial court and affirm on this basis.
See id.Based on our review of the record, Lee’s appeal is frivolous.
Accordingly, we affirm the judgment of sentence and grant Attorney Brink’s
Application to Withdraw as Counsel.
Application to Withdraw as Counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2014
-4-
Circulated 12/02/2014 11:23 AM
IN THE COURT OF COlVflVION PLEAS OF THE 39 TH JUDICIAL DISTRICT OF
PENNSYLVANIA - FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania Criminal Court
vs. No. 954-2013
Donovan Neal Lee, Judge Douglas W. Herman·
Appellant
Opinion sur Pa. R. App. P. 1925(a)
On April 19', 2013 Donovan Neal Lee ("Appellant") was 'charged with, inter alia,
Aggravated Indecent Assault when Complainant is Less Than 13 Years of Age; Indecent Assault
Without Consent of Complainant; and Unlawful Contact with a Minor. On August 28,2013
Appellant pled guilty to Count II amended to Indecent Assault and Count 4 amended to
Corruption of Minors. Based on his convictions we ordered Appellant be assessed by the
Pennsylvania Sexual Offenders Assessment Board and at sentencing on May 14, 2014 we
determined App~llant to be a sexually violent predator. Appellant now appeals his judgment of
sentence. For the reasons that follow we submit that no error was committed .by this Court.
DISCUSSION
Upon review of the Concise Statement of Matters Complained of on Appeal filed on June
26,2014, we note that Appellant raises one issue: "whether the trial court erred when it
determined that [Appellant] satisfied the criteria to be found a sexually violent predator."
Appellant argues that the Court should not have made such ,a conclusion because Appellant's
expert opined that even though Appellant did teclmically meet the criteria to be identified as a
sexually violent predator ("SVP") the Court should not have found Appellant to be a SVP due to
the absence of a known history of sexually offending behavior of a contact nature. We disagree .
. 42 Pa.C.S. § 9799.24(a) provides that:
fo)~©~JIW~~
~ AUG 1 1 20 14 ~;
Circulated 12/02/2014 11:23 AM
After conviction but before sentencing, a court shall order an individual convicted of a
sexually violent offense to be assessed by the board. The order for an assessment shall be
sent to the administrative officer of the board within ten days of the date of conviction for
the sexually violent offense.
Further, a member of the Pennsylvania Sexual Offenders Assessment Board ("SOAB") is to
conduct an assessment to determine whether the conviCted individual should be classified as a
SVP. 42 Pa.C.S. § 9799.24(b). Factors that the Court should consider include: whether the
offense involved multiple victims; whether the individual exceeded the means necessary to
achieve the offense; the nature of the sexual.contact with the.victim; the relationship of the
individual to the victim; the age of the victim; whether the offense included a display oftmusual
cruelty by the individual during the commission of the' crime; the mental capacity of the victim;
the individual's prior criminal record; whether the individual completed any prior sentences;
whether the individual participated in available programs for sexual offenders; the age of the
individual; use of illegal drugs by the individual; any mental illness, mental disability or mental
abnormality; behavioral characteristics that contribute to the individual's conduct; and factors
that are supported in a sexual offender assessment field as criteria reasonably related to the risk
ofre-offense. 42 Pa.C.S. § 9799.24(b).
This Court held a SVP/sentencing hearing on May 14,2014 where we made a
determination that Appellant is a sexually violent predator. At that hearing Herbert Hays
testified as a board member for the SOAB. (Tr. of Proceedings 4:23-24, May 14,2014)
[hereinafter "Sentencing Tr.''J. Mr. Hays testified to the 14 factors delineated in 42 Pa.C.S. §
9799.24(b). The facts of the current offense consisted of the following: there was only one
victim in the case; Appellant did not do more than necessary to achieve the sexual offense
although the girl was only 12 years old; the nature of the sexual acts consisted of two occasions,
one whtireApp:enant
. .
lpssed the victim and gave her a hickey on her neck, and another the next
~
~ ..
.. :.~.'. '.~ ~.' :
2
Circulated 12/02/2014 11:23 AM
day where Appellant gave the victim a hickey under her breast and placed his hand inside her
underwear and digitally penetrated her vagina; Appellant and the victim also talked on the phone
about engaging in sexual intercourse, the victim sent Appellant nude photographs and Appellant
sent her a photograph of his penis; there was no long-term relationship between the two as they
met at a park and were mere acquaintances; the victim was 12 years old at the tiIne of the
offense; there was no sadism or unusual cruelty involved; and there was no indication that the
victim was mentally limited. (Sentencing Tr. 7 :24-9:5). Prior offense history testified to by Mr.
Hays included the following: Appellant had a considerable juvenile and adult history of arrests
and supervision; at the time of the offense Appellant was under court supervision for retail theft;
and Appellant attended group therapy at the Abraxas Youth Center that addressed sexual
offending behavior where his high risk behaviors were identified and knowing those he still put
himself in a very high risk situation with the victim in this case. (Sentencing Tr. 9:6-10:4). As
to characteristics of Appellant, Mr. Hays testified to the following: Appellant was 22 years old;
he did not use drugs or give drugs to the victim; his mental health history includes ADHD, some
depression, mood disorder, and significant evidence of conduct disorder. Mr. Hays con~luded
that Appellant has predatory behavior as evidenced by his initiation and continuation of romantic
behavior with the victim and he meets the criteria for status as a sexually violent predator
according to the 14 factors. (Sentencing Tr.1 0:4-11: 16). Further, Mr. Hays opined that
Appellant suffers from antisocial personality disorder which is a belief system that one is not
accountable to the law and in this case evinces a likelihood to commit future sexual offenses.
(Sentencing Tr. 11: 17-12:23). In conclusion, Mr. Hays opined that Appellant meets the criteria
for a sexually violent predator. (Sentencing Tr. 15:1-4).
3
Circulated 12/02/2014 11:23 AM
Appellal"lt called Dr. Stanley Schneider to testify on his behalf as to whether or not
Appellant should be classified as a sexually violent predator. Dr. Schneider agreed with the
Commonwealth witness that Appellant has antisocial personality disorder. (Sentencing Tr. 40:8-
14). When Dr. S~bneider was asked whether Appellant meets the criteria for antisocial ..
personality disorder he responded: "He meets the diagnosis. Definitely I agree with it. The
records, you know, speak for themselves. The criteria are there." (SeBkncing Tr. 41 :5-17)_
Furthermore, Dr. Schneider also agreed that Appellant met the criteria for predatory behavior.
(Sentencing Tr. 41 :23-42:6). Despite Dr. Schneider's own fmdings he believed Appellant should
not be identified as a sexually violent predator because aside from the instant offense Appellant
does not have a history of sexually violent or inappropriate behavior. He also based his opinion
on the fact that Appellant cut off the relationship with the victim. (Sentencing Tr. 42: 11-43 :4).
We are not persuaded by Appellant's argument that he should not be identified as a
sexually violent predator because of the lack of past history of sexual offenses. Prior offense
history refers generally to prior offenses and not specifically sexual offenses. 42 Pa.C.S. §
9799.24(b)(2). We believe the real significance of Appellant's prior criminal history, whether it
is sexual in nature or not, is the fact that Appellant possesses a willingness to go against society's
norms, a thought process which is indicative of antisocial personality disorder. While the instant
offense is Appellant's only sexual offense, it shows that the disregard for the law that is
associated with antisocial personality disorder has now resulted in asexual offense. The purpose
of the statute is to insure that sexual offenders do not commit another sexual offense in the
future. When the statutory requirements are met we do not see any reason to not apply the
dictates of the statute and determine that a sexual offender is a sexually violent predator. To wait.
4
Circulated 12/02/2014 11:23 AM
until an offender racks up mUltiple sexual offenses would fly in the face of the purpose of the
statute;
Dr. Schneider also relied on the fact that Appellant terminated the relationship even
though he had the opportunity to continue re-offending. However, his stated reasoning for
discontinuing the relationship to pursue a relationship with an older woman had nothing to do
with recognition that his behavior was wrong .. Regarding his past treatment, Appellant was
given iriformation that would have allowed him to make appropriate decisions regarding control
of his behavior, however he evidently did not heed such advice. The nature of the relationship
demonstrated predatory behavior in that it was a very brief contact and ended in a sexual offense.
We believe that the factors set forth in 42 Pa.C.S. § 9799.24(b) we~gh in favor of classifying
Appellant as a sexually violent predator. As to the other requirements for status as a sexually
violent predator, Appellant's own exp'ert agreed with Mr. Hays of the SOAB that Appellant
displays predatory behavior and suffers from antisocial personality disorder. Therefore we
submit that we did not err in classifying Appellant as a sexual~y violent predator.
CONCLUSION
In light of the foregoing discussion, we suggest that no error was committed during this
proceeding and ask that the Superior Court affrrin our decision determining that Appei~ant is a
sexually violent predator.
5