Com. v. Quintanilla-Pineda, T.

J-S73044-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TOMAS JAVIER QUINTANILLA-PINEDA, :
:
Appellant : No. 736 MDA 2017
Appeal from the Judgment of Sentence February 27, 2017
in the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0004448-2016
BEFORE: OLSON, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 29, 2018
Tomas Javier Quintanilla-Pineda (Appellant) appeals from his February
27, 2017 judgment of sentence of 13 to 26 years’ incarceration following his
nolo contendere plea to rape, involuntary deviate sexual intercourse (IDSI),
and theft by unlawful taking. After review, we vacate the portion of
Appellant’s sentence requiring him to comply with SORNA, affirm in all other
respects, and remand for the sole purpose of having the trial court determine
whether any registration requirements exist.
The Commonwealth offered the following recitation of facts during
Appellant’s plea hearing.
[O]n December 17th of 2011, the victim… entered her friend’s
apartment located in West York across from the Reliance Cafe.
Her friend left to go meet her husband at a bar across the street.
At that point the victim observed [Appellant] at the top of the
stairs on the second floor. She went up into the bathroom on the
third floor. While she [was] in the bathroom on the third floor,
*Retired Senior Judge assigned to the Superior Court.
J-S73044-17
[Appellant] came up behind her, grabbed her by the throat, threw
her to the ground, [and] slammed her forehead on the floor. As
she tried to get away, he pulled her back down, [and] pulled her
pants down. … [Appellant] then anally penetrated her with his
penis and then penetrated her vagina and then back to her anus.
During the assault, the victim called 911 on her cell phone.
There [was] a recording of the assault occurring that was recorded
by 911. While the 911 [dispatcher asked] for [the victim’s]
address, [Appellant] had his hand covering [the victim’s] mouth
so that she [was] unable to speak.
… [Bill Imler] would testify that he returned home to this
apartment. When he return[ed] home, he [came] up the stairs to
this assault occurring. He confronted [Appellant], who [sic] he
recognized. At that point [Appellant] took off with the victim’s cell
phone. You are able to hear in the 911 call someone running, and
then that call is disconnected.
Also, witness Lorraine Miller… would testify that [Appellant]
was in her apartment that night, that [Appellant] worked at
Reliance Cafe, and she would be able to identify him.
After this report came in, law enforcement … went to
Reliance Cafe, searched for [Appellant and were] able to obtain
[Appellant’s] information from Reliance Cafe. They [did] an
exhaustive search of York in order to find [Appellant]. They
[were] unable to do that. However, charges [were] filed … .
Also, [the Commonwealth] would [have presented] at trial
a SAFE [Sexual Assault Forensic Examiner] exam [where]
evidence was collected, sent up to PSP [Pennsylvania State
Police]. DNA evidence was sent up to them.
On January 22nd of 2013, there was a CODIS [Combined
DNA Index System] hit on the DNA that was collected from the
victim. It came back to [Appellant], who was located in California
at that time. …
[Appellant was] eventually extradited back to Pennsylvania.
Another sample [was] obtained from [Appellant]. That [was] sent
up to PSP, and on July 6th of this year, [the Commonwealth] did
receive the DNA analysis from PSP that did confirm that … the
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semen sample that was collected from our victim was a
combination of her DNA as well as [Appellant’s].
N.T., 11/23/2016, at 3-5.
On November 23, 2016, Appellant pled nolo contendere as indicated
above. Appellant’s plea was accepted by the trial court, and on February 27,
2017, Appellant was sentenced to 6½ to 13 years of incarceration for rape;
6½ to 13 years of incarceration for IDSI, consecutive to the sentence of
incarceration for rape; and 12 months of probation for theft, concurrent to the
sentences of incarceration. At the time Appellant pled nolo contendere, rape
and IDSI were enumerated Tier III offenses under SORNA, and required
lifetime registration as a sexual offender. 42 Pa.C.S. § 9799.14(d); 42 Pa.C.S.
§ 9799.15(a)(3). At sentencing, Appellant signed a Megan’s Law Registration
Form, stating that he understood his registration requirements.
Appellant filed a post-sentence motion on March 2, 2017. The trial court
held a hearing on April 3, 2017, and denied Appellant’s post-sentence motion
that same day. Appellant timely filed a notice of appeal. Both Appellant and
the trial court have complied with the mandates of Pa.R.A.P. 1925.
Appellant presents the following questions for our consideration.
[1] Whether the [trial] court improperly gave [Appellant] two
aggravated-range sentences, to be served consecutively, based
on conduct inherent in the offenses: the violence inflicted in the
course of rape by forcible compulsion and IDSI by forcible
compulsion.
[2] Whether SORNA, or any other sex offender registration
scheme, can legally apply to [Appellant] in light of the
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Pennsylvania Supreme Court’s holding in Commonwealth v.
Muniz that retroactive application of SORNA’s registration
provisions violates the ex post facto clauses of the United States
and Pennsylvania Constitutions.
Appellant’s Brief at 4 (suggested answers omitted).
Appellant’s first claim implicates the discretionary aspects of his
sentence. We consider this claim mindful of the following.
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 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.
***
When imposing sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In considering these factors, the court should refer to
the defendant’s prior criminal record, age, personal characteristics
and potential for rehabilitation.
Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)
(internal citations and quotation marks omitted).
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an appellant
challenging the discretionary aspects of his sentence must invoke this Court’s
jurisdiction. We determine whether the appellant has invoked our jurisdiction
by considering the following four factors:
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(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.[] § 9781(b).
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
Here, Appellant filed a notice of appeal after preserving the issue by
filing a motion to modify sentence, and his brief contains a statement pursuant
to Pa.R.A.P. 2119(f). We thus consider whether Appellant raised a substantial
question that his sentence is inappropriate.
In his Pa.R.A.P. 2119(f) statement, Appellant claims that his sentence
raises a substantial question because the trial court “considered factors
already included in the guidelines.” Appellant’s Brief at 13 (quoting
Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)).
Specifically, Appellant alleges that the trial court imposed “two aggravated-
range terms of incarceration due to the violence he inflicted—a factor inherent
in both offenses.” Id. A claim that a trial court relied on impermissible factors
in fashioning a sentence raises a substantial question. Commonwealth v.
Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006). Thus, we conclude that
Appellant has presented a substantial question for our review, and proceed to
evaluate Appellant’s sentencing argument on its merits.
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Here, Appellant was sentenced to two consecutive sentences in the
aggravated range of the sentencing guidelines for rape and IDSI. A
sentencing court “has wide discretion in sentencing and can, on the
appropriate record and for the appropriate reasons, consider any legal factor
in imposing a sentence in the aggravated range.” Id. at 1275.
Since Appellant was sentenced within the guidelines, we
may reverse only if application of the guidelines is clearly
unreasonable. The [Commonwealth v.] Walls[, 926 A.2d 957(Pa. 2007)] Court noted that the term “unreasonable,” while not
defined in the Sentencing Code, generally means a decision that
is either irrational or not guided by sound judgment. The Court
continued that the context of the term’s use in section 9781
indicates that the legislature intended the concept
of unreasonableness to be inherently a circumstance-dependent
concept that is flexible in understanding and lacking precise
definition.
The Supreme Court held that a sentence can be deemed
unreasonable after review of the four elements contained in
section 9781(d) or if the sentencing court failed to take into
account the factors outlined in 42 Pa.C.S. § 9721(b). [Subs]ection
9721(b) states in pertinent part:
[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. The court shall
also consider any guidelines for sentencing adopted
by the Pennsylvania Commission on Sentencing[.]
In conclusion, our Supreme Court in Walls stated that when
the proper standard of review is utilized, rejection of
a sentencing court’s imposition of sentence on unreasonableness
grounds [should] occur infrequently, whether the sentence is
above or below the guidelines ranges.
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Commonwealth v. Macias, 968 A.2d 773, 777 (Pa. Super. 2009) (some
citations and quotation marks omitted). In reviewing the record on appeal,
this Court considers:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
Here, the standard range of the guidelines for both rape and IDSI was
4 to 5½ years of incarceration. N.T., 2/27/2017, at 8. Appellant was
sentenced in the aggravated range at both counts to 6½ to 13 years of
incarceration. The trial court reviewed the presentence investigation report,
and, thus, “we presume that the court properly considered and weighed all
relevant factors in fashioning [Appellant’s] sentence.” Commonwealth v.
Baker, 72 A.3d 652, 663 (Pa. Super. 2013). Further, the record reveals that
the trial court was cognizant of the sentence it was imposing. At sentencing,
the trial court set forth its reasoning for imposing a sentence within the
aggravated guideline range.
The nature of the offense, you know, followed somebody
home and went into the house where [she was], attending to their
nightly duties, and you violently raped [her]. I’m not so sure there
is such a thing as a friendly rape. Quite frankly, in my mind all
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rapes are violent. But this went beyond your means to achieve
your goal.
I agree, but for the introduction of the third person in the
household, the rape would have continued. I can’t speculate on
what you did, but I cannot take any exception to the victim saying
that her fear was that she was going to be killed. …
So I do believe that a sentence in the aggravated range is
appropriate because of the violence of the offense.
N.T., 2/27/2017, at 12.
Appellant argues that the violence was already factored into the
sentencing guidelines because he was convicted of rape and IDSI by forcible
compulsion, and thus the trial court erred in basing his aggravated range
sentence on the violence inflicted. However, violence is not necessary for
forcible compulsion.
It is well-established that in order to prove the
forcible compulsion component, the Commonwealth must
establish, beyond a reasonable doubt, that the defendant used
either physical force, a threat of physical force, or psychological
coercion, since the mere showing of a lack of consent does not
support a conviction for rape ... by forcible compulsion. [O]ur
Supreme Court stated that forcible compulsion includes not only
physical force or violence, but also moral, psychological or
intellectual force used to compel a person to engage in sexual
intercourse against that person’s will. Further, the degree of force
required to constitute rape is relative and depends on the facts
and particular circumstances of a given case.
Commonwealth v. Eckrote, 12 A.3d 383, 387 (Pa. Super. 2010) (citations
and quotation marks omitted).
In its 1925(a) opinion, the trial court found that Appellant “used an
atypical amount of force that was larger than necessary to fulfill the forcible
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compulsion elements of [r]ape and IDSI.” Trial Court Opinion, 6/23/2017, at
9. Specifically,
Appellant here grabbed the [victim’s] throat, threw the
victim to the ground, and [] slammed her forehead on the floor.
[]Appellant came into the home while no one else was there
beside the victim and fled the state shortly thereafter. The victim
reported that she thought she was going to die during the attack.
The reason that the assault stopped is because of a third party
returning to the home. This amount of force here is significantly
more than just climbing over the victim, which was the physical
force used in Eckrote.
Id. at 9-10. After the initial assault wherein Appellant grabbed the victim’s
throat, threw her to the ground, and slammed her head on the floor, Appellant
used forcible compulsion by pulling her back to the floor as she tried to get
away, and forcibly removing her pants. Moreover, Appellant covered the
victim’s face with his hand, silencing her as she tried to ask the 911 dispatcher
for help.
We agree that the violence cited by the trial court was not included in
the sentencing guidelines’ consideration of normal forcible compulsion, and
thus the trial court’s reliance on that violence in fashioning Appellant’s
aggravated-range guidelines sentences was not clearly unreasonable. Walls,
926 A.2d at 967 (holding that factors of victim’s precise age and victim being
entrusted to defendant’s care were not subsumed within sentencing guidelines
and thus could justify an above-guideline sentence).
Appellant alleges in his second claim that he should not be subjected to
any sexual offender registration scheme in light of Commonwealth v. Muniz,
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164 A.3d 1189 (Pa. 2017) (Opinion Announcing the Judgment of the Court)
and Commonwealth v. Butler, __ A.3d __, 2017 WL 4914155 (Pa. Super.
Oct. 31, 2017).1 Appellant’s Brief at 24; Appellant’s Rule 2501(b) Post-
Submission Communication, 11/1/2017. Appellant argues that because he
committed the instant rape and IDSI before the effective date of SORNA, the
registration requirements of SORNA were applied ex post facto.
We consider Appellant’s ex post facto claim mindful of the following.
Critical to relief under the ex post facto clause is not an individual’s
right to less punishment, but the lack of fair notice and
governmental restraint when the legislature increases punishment
beyond what was prescribed when the crime was consummated.
Based on these concerns, [in Calder v. Bull, 3 U.S. 386 (1798),]
Chief Justice Chase set out four categories of laws that violate
such prohibitions:
1st. Every law that makes an action done before the
passing of the law, and which was innocent when
done, criminal; and punishes such action. 2nd. Every
law that aggravates a crime, or makes it greater than
it was, when committed. 3rd. Every law that
changes the punishment, and inflicts a greater
punishment, than the law annexed to the crime,
when committed. 4th. Every law that alters the legal
rules of evidence, and receives less, or different,
testimony, than the law required at the time of the
commission of the offense, in order to convict the
offender.
1 Appellant acknowledged that he did not raise his Muniz claim within his Rule
1925(b) statement of errors complained of on appeal, which was filed on May
23, 2017, because Muniz was not decided until July 17, 2017. Appellant’s
Brief at 4. While Appellant raises this claim for the first time on appeal, we
may review it. See e.g. Butler, 2017 WL 4914155 at *2 (holding that while
issues not raised before the trial court are generally waived for appellate
purposes, a challenge to the legality of a sentence based on Muniz need not
be preserved in the trial court in order to be reviewable).
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Furthermore, two critical elements must be met for a criminal or
penal law to be deemed ex post facto: it must be retrospective,
that is, it must apply to events occurring before its enactment,
and it must disadvantage the offender affected by it. As such,
[o]nly those laws which disadvantage a defendant and fall within
a Calder category are ex post facto laws and constitutionally
infirm. Commonwealth v. Young, [] 637 A.2d 1313, 1318
([Pa. ]1993) (emphasis in original). The ex post facto clauses of
the United States and Pennsylvania Constitutions are implicated
here because a holding rendering the effects of SORNA’s
registration requirements punitive would place the statute into the
third Calder category: application of the statute would inflict
greater punishment on appellant than the law in effect at the time
he committed his crimes.
Muniz, 164 A.3d at 1195–96 (quotation marks, unnecessary capitalization,
and some citations omitted) (emphasis added). “The Muniz Court held that
Pennsylvania’s SORNA is an unconstitutional ex post facto law when applied
retroactively to those sexual offenders convicted of applicable crimes before
the act’s effective[] date and subjected to increased registration requirements
under SORNA after its passage.” Commonwealth v. McCullough, __ A.3d
__, 2017 WL 5184490 at *1 (Pa. Super. Nov. 9, 2017); Commonwealth v.
Hart, __ A.3d __, 2017 WL 5246752 at *6 n.9 (Pa. Super. Nov. 13, 2017)
(holding that “the binding precedent emerging from Muniz is confined to the
determination that SORNA’s registration requirement is punishment that runs
afoul of the ex post facto clause of the Pennsylvania Constitution when applied
retroactively”).
Appellant committed the instant rape and IDSI on December 17, 2011.
At that time Megan’s Law III applied, which would require Appellant to register
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with the state police for the remainder of his life as to both rape and IDSI. On
December 20, 2011, the legislature enacted SORNA. See 42 Pa.C.S. §§
9799.10 and 9799.41. SORNA became effective on December 20, 2012, prior
to Appellant’s plea and sentencing but after he committed the instant offenses.
SORNA increased the registration period for certain crimes, but the
registration requirement for those convicted of rape and IDSI remained a
lifetime registration. Compare 42 Pa.C.S. § 9795.1(b)(2) (expired) with 42
Pa.C.S. § 9799.14(d) and § 9799.15(a)(3). Although it did not increase the
period of registration for rape and IDSI, SORNA did enhance registration
requirements for Tier III offenses, including quarterly in-person reporting and
dissemination of personal information via an Internet website. Muniz, 164
A.3d at 1210-11, (citing Commonwealth v. Perez, 97 A.3d 747, 765 (Pa.
Super. 2014) (Donohue, J. concurring)). These additional, more stringent
registration requirements constitute a greater punishment than what would
have been imposed under Megan’s Law III. As such, retroactive application
of these enhanced registration requirements runs afoul of constitutional ex
post facto prohibitions. See Muniz, 164 A.3d at 1193, 1216.
Appellant pled guilty after SORNA went into effect, and thus the trial
court purported to impose the new registration requirements and other
provisions of SORNA on him retroactively for crimes he committed when
Megan’s Law III was applicable. Because Appellant committed his crimes at
a time when registration requirements for rape and IDSI were less onerous,
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and thus the punishment was lesser, SORNA cannot be applied retroactively
to Appellant without violating the ex post facto clause of the Pennsylvania
constitution. See Muniz, 164 A.3d at 1192-93. Thus, we are constrained to
agree with Appellant that he is not required to register under SORNA.
As to the second part of Appellant’s claim, this Court held in Butler that
subsection 9799.24(e)(3) of SORNA, regarding the procedure for determining
whether a defendant is a sexually violent predator, violates the federal and
state constitutions “because it increases the criminal penalty to which a
defendant is exposed without the chosen fact-finder making the necessary
factual findings beyond a reasonable doubt.” 2017 WL 4914155 at *6.
Appellant was specifically not designated as a sexually violent predator under
42 Pa.C.S. § 97993.24. Thus, the holding in Butler does not apply to
Appellant, and it affords Appellant no relief. N.T., 2/27/2017, at 15.
We vacate that portion of Appellant’s sentence requiring him to comply
with SORNA. The remainder of his judgment of sentence is affirmed.
Judgment of sentence affirmed in part and vacated in part. Case
remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/29/2018
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