Opinion
J-A22011-18 No. 2511 EDA 2017
12-13-2018
COMMONWEALTH OF PENNSYLVANIA, Appellee v. CAROLINA LEMUS-ALMANZA, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered May 10, 2017
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0004239-2015 BEFORE: BENDER, P.J.E., NICHOLS, J., and STEVENS, P.J.E. MEMORANDUM BY BENDER, P.J.E.:
Former Justice specially assigned to the Superior Court.
Appellant, Carolina Lemus-Almanza, appeals from the judgment of sentence of an aggregate term of 18-36 years' incarceration, imposed following her guilty plea to multiple sexual offenses that were committed against her infant daughter. After careful review, we reverse the order designating Appellant as a Sexually Violent Predator ("SVP"), remand for the sole purpose of having the trial court issue the appropriate notice under 42 Pa.C.S. § 9799.23 as to Appellant's sexual offender registration requirements, but otherwise affirm her judgment of sentence.
The Commonwealth summarized the facts of this case at Appellant's guilty plea hearing as follows:
Your Honor, the facts are as follows: [Appellant], along with her boyfriend, Alejandro Sanchez Torres, engaged in the sexual abuse of their biological daughter, ASL, from, approximately, January 1st of 2014 through October 13th, 2015, in Kennett Square, Chester County, when the victim was between the ages of six months to two years old. The sexual abuse occurred at [Appellant]'s two different residences. ...
Both co-defendants digitally penetrated the child's vagina and rectum on multiple occasions, and touched the child's sexual or intimate body parts with their hands and mouths; both took naked images of the child for their sexual gratification with their cell phones. [Appellant] sent the co-defendant numerous naked images of the child in a variety of lewd and lascivious poses upon his request.
During the year and a half of abuse, they would routinely place the child on their bodies while they engaged in sexual intercourse with each other and would also touch the child's sexual or intimate body parts simultaneously.
Co-defendant Sanchez Torres solicited [Appellant] to allow him to engage in vaginal and anal intercourse with the child. This solicitation was made through a Facebook exchange between the co-defendants in mid-October, 2015, but, according to [Appellant], did not happen because on or around October 12th, 2015, a friend of [Appellant] discovered this Facebook conversation, along with the images of the child that were in a private conversation between the two on their Facebook accounts where they discussed other sexual acts they were interested in performing on the child, including oral, vaginal, and anal sex.
This friend reported that [conversation] to the police the following day and the Facebook messages between the two and the naked images of the child were recovered by police.
On October 13th, 2015, Chester County Detective Oscar Rosado, who then worked at the Kennett Square Police Department, interviewed [Appellant]. She admitted that she had taken naked images of her daughter and sent them to the co-defendant for his sexual gratification upon his request. She confessed that she had touched her daughter's vagina with her fingers and on multiple occasions with her mouth. She also told the officer that she needed help.
She stated that the co-defendant also touched the victim's vagina and anus with his fingers. [Appellant] also indicated she had touched the child's anus with her fingers as well [as her] mouth on multiple occasions, and that the co-defendant had taken at least eight or nine naked images of the child while in [Appellant]'s presence.N.T. Plea, 6/2/16, at 4-7.
[Appellant] later disclosed that she and the co-defendant engaged in sexual assaults of the victim almost every time they had sex, which occurred, approximately, one to two times a week for over a year and a half.
On June 2, 2016, Appellant entered an open guilty plea to two counts of aggravated indecent assault, 18 Pa.C.S. § 3125(b); six counts of conspiracy, 18 Pa.C.S. § 903; and one count each of indecent assault, 18 Pa.C.S. § 3126(a)(7); sexual abuse of children, 18 Pa.C.S. § 6312(b) (production of child pornography); sexual abuse of children, 18 Pa.C.S. § 6312(c) (dissemination of child pornography); and endangering the welfare of children, 18 Pa.C.S. § 4304(a). Following Appellant's plea, the trial court ordered an evaluation by the Sexual Offender Assessment Board ("SOAB"). N.T. Plea at 34. Sentencing was deferred in order for Appellant to fulfill her agreement to cooperate with the Commonwealth in the trial against her co-defendant, Alejandro Sanchez Torres.
Sentencing occurred on May 10, 2017. At the outset of that hearing, the trial court received evidence that the SOAB issued a report recommending that the court designate Appellant as an SVP. N.T. Sentencing, 5/10/17, at 3. Appellant did not contest the designation but, to the contrary, accepted it without objection. Id. at 3. Accordingly, the trial court entered an order determining Appellant to be an SVP, but did not conduct an SVP hearing. SVP Order, 5/10/17, at 1 (single page). The court also sentenced Appellant as follows:
• Count 1-aggravated indecent assault of a child—a term of imprisonment of 5 to 10 years.
• Count 2—aggravated indecent assault of a child—a term of imprisonment of 5 to 10 years, consecutive to count 1.
• Count 5—indecent assault of a child less than 13 years of age—a term of imprisonment of 1 to 2 years to be served consecutive to count 2.
• Count 7—sexual abuse of children, dissemination of child pornography—a term of imprisonment of 1 to 2 years to be served consecutive to count 5.
• Count 13—sexual abuse of children, production of child pornography—a term of imprisonment of 1 to 2 years to be served consecutive to count 7.
• Count 17—endangering the welfare of children—a term of imprisonment of 1 to 2 years to be served concurrent with count 13.
• Count 18—conspiracy to commit aggravated indecent assault of a child—a term of imprisonment of 5 to 10 years, consecutive to count 13.
• Count 19—conspiracy to commit aggravated indecent assault of a child—a term of imprisonment of 5 to 10 years, concurrent with count 18.
• Count 20—conspiracy to commit indecent assault of a child—a term of imprisonment of 1 to 2 years to be served concurrent with count 18.
• Count 21—conspiracy to commit sexual abuse of children—a term of imprisonment of 1 to 2 years to be served concurrent with count 18.
• Count 22—conspiracy to commit sexual abuse of children—a term of imprisonment of 1 to 2 years to be served concurrent with count 18.
• Count 23—conspiracy to commit endangering the welfare of children—a term of imprisonment of 1 to 2 years to be served concurrent with count 18.Trial Court Opinion ("TCO"), 11/13/17, at 5-6.
Appellant filed a timely post-sentence motion seeking reconsideration of her sentence, which the trial court denied on June 29, 2017. Appellant then filed a timely notice of appeal, and a timely, court-ordered Pa.R.A.P. 1925(b) statement. The trial court issued its Rule 1925(a) opinion on November 13, 2017.
Appellant now presents the following questions for our review:
1. Did the [t]rial [c]ourt err and abuse its discretion, and/or violate Appellant's [c]onstitutional rights by illegally treating [her] as a[n] [SVP] for sentencing purposes; despite the fact that she did not undergo an interview and analysis-which would have shown she is not a[n] [SVP]?Appellant's Brief at 8.
2. Did the [t]rial [c]ourt err and exercise a manifest abuse of discretion in regard to discretionary aspects of sentencing by ignoring or misapplying the law, exercising its judgment for reasons of partiality, prejudice, bias or ill will against Appellant, and/or arriving at a manifestly unreasonable decision regarding the offenses, so that it imposed an unreasonably excessive sentence with multiple consecutive sentences without fairly and adequately considering the mitigating circumstances raised and asserted?
In Appellant's first claim, she baldly asserts that she would not have been deemed an SVP by the trial court had she participated in her SVP assessment by the SOAB. This claim dangerously approaches frivolity, and is saved only by its mootness. First, Appellant refused to cooperate with the SOAB during the SVP assessment process. See TCO at 32 (noting that Appellant "was given the opportunity to be interviewed by the SOAB, but she declined to participate"). Second, Appellant conceded through counsel that she was an SVP at the sentencing hearing. N.T. Sentencing at 3. Accordingly, any claim that the trial court failed to conduct a hearing, or that the SVP determination was made under an inappropriate standard of proof, is frivolous. At best, Appellant conceivably has a claim for the ineffective assistance of counsel, but no such claim could have been raised on direct appeal under the circumstances of this case. See Commonwealth v. Holmes , 79 A.3d 562 (Pa. 2013).
Nevertheless, Appellant's claims concerning the SVP determination process are rendered moot by our recent decision in Commonwealth v. Butler , 173 A.3d 1212 (Pa. Super. 2017). In Butler , we concluded that, because our Supreme Court, in Commonwealth v. Muniz , 164 A.3d 1189 (Pa. 2017), cert. denied, 138 S.Ct. 925 (2018), held that the Sexual Offender Registration and Notification Act's ("SORNA") registration requirements are punitive, and an SVP designation increases the registration period, trial courts cannot apply SORNA's increased registration requirement for SVPs because SORNA does not require a fact-finder to determine, beyond a reasonable doubt, that the defendant is an SVP. Butler , 173 A.3d at 1217-18 (citing Alleyne v. United States , 570 U.S. 99 (2013)). Thus, Appellant's SVP status effectively constitutes an illegal sentence. Therefore, we vacate the order designating Appellant to be an SVP, and remand this matter to the trial court to issue appropriate notice of her registration obligations pursuant to 42 Pa.C.S. § 9799.23.
42 Pa.C.S. §§ 9799.10-9799.41.
In Appellant's second issue, she argues the trial court abused its sentencing discretion "by ignoring or misapplying the law, improperly considering factors, and arriving at a manifestly unreasonable judgment resulting in excessive consecutive sentences." Appellant's Brief at 29 (unnecessary capitalization omitted).
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.Commonwealth v. Hoch , 936 A.2d 515, 517-18 (Pa. Super. 2007) (citation omitted). However,
[c]hallenges 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.[] § 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).Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010).
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 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.
Instantly, Appellant filed a timely notice of appeal, and preserved her sentencing claim in a post-sentence motion. She also provided a Rule 2119(f) statement in her brief. We also conclude that she presents a substantial question for our review. "This Court has held that a claim that the sentence is excessive because the trial court relied on impermissible factors raises a substantial question." Commonwealth v. Simpson , 829 A.2d 334, 338 (Pa. Super. 2003); see also Commonwealth v. Derry , 150 A.3d 987, 995 (Pa. Super. 2016) (recognizing a "claim that 'a sentence is manifestly excessive such that it constitutes too severe a punishment raises a substantial question'") (quoting Commonwealth v. Kelly , 33 A.3d 638, 640 (Pa. Super. 2011)). Accordingly, we may reach the merit of Appellant's sentencing claim.
We have reviewed the parties' briefs, the certified record, and the trial court's responsive Rule 1925(a) opinion. In that opinion, the Honorable Phyllis R. Streitel addressed Appellant's multi-part sentencing issue in detail, set forth the relevant law, and determined that the issue lacked merit. See TCO at 5-32. We agree with the trial court's analysis, and adopt it as our own. Accordingly, we conclude that Appellant's second claim lacks merit.
Judgment of sentence affirmed. SVP order vacated. Case remanded for proceedings consistent with this memorandum. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/13/18
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