Com. v. Campinelli, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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:
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[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.
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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
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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.
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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:
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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
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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.
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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
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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
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(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
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[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
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“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.
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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
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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.
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2
Nowhere in Appellant’s argument does he contend that his health has
deteriorated significantly since the time he committed his crimes.
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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,
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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.
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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.
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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.
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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.
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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.
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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)
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(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)
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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.
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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
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