J-A16001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

HARRY BABINGER, II

                            Appellant                    No. 1101 WDA 2016


         Appeal from the Judgment of Sentence imposed June 27, 2016
              In the Court of Common Pleas of Allegheny County
               Criminal Division at No: CP-02-CR-0007140-2015


BEFORE: STABILE, J. FORD ELLIOTT, P.J.E. , and STRASSBURGER,* J.

MEMORANDUM BY STABILE, J.:                            FILED JANUARY 19, 2018

        Appellant, Harry Babinger, II, appeals from the judgment of sentence

the Court of Common Pleas of Allegheny County imposed on June 27, 2016.

Appellant challenges the discretionary aspects of his sentence. Upon review,

we affirm the judgment of sentence.            However, for the reasons explained

below, we reverse the trial court’s November 8, 2016 order finding that

Appellant is a Sexually Violent Predator and remand for the sole purpose of

having the trial court issue the appropriate notice under 42 Pa.C.S.A. §

9799.23 as to Appellee’s registration requirements.



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*
    Retired Senior Judge assigned to the Superior Court.
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        The trial court summarized the procedural background of the instant

matter as follows:

        On February 11, 2016, following a jury trial, [the trial court]
        declared a mistrial. On April 12, 2016, a second jury found
        Appellant guilty of Involuntary Deviate Sexual Intercourse With a
        Child (“IDSI”), Unlawful Contact With Minor, Sexual Assault,
        Incest of a Minor, Indecent Assault Person Less Than 13 Years of
        Age, and Endangering Welfare of Children (“EWOC”). [The trial
        court] sentenced Appellant to 20 to 40 years of incarceration for
        IDSI and three to six years for Incest of a Minor consecutive to
        the IDSI sentence. [The trial court] further sentenced Appellant
        to two concurrent seven years probationary sentences,
        consecutive to incarceration, at the Unlawful Contact and EWOC
        counts.    The aggregate sentence imposed was 23-46 years
        incarceration with seven years consecutive probation. Appellant
        filed a Post-Sentence motion on June 28, 2016, which [the trial
        court] denied on June 30, 2016.

Trial Court Opinion, 1/18/17 at 1-2 (footnotes omitted).

        Following a hearing, on November 7, 2016, the trial court found

Appellant to be a Sexually Violent Predator.          See Trial Court Order,

11/8/16.1

        Appellant argues the trial court failed to state any reason for

Appellant’s sentence.2       The statement is inaccurate.   After presiding over


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1
  The order in question is dated November 7, 2016, but it was filed on
November 8, 2016. The order does not provide any information as to the
length of term of registration. At time of sentencing, however, the trial
court indicated that Appellant “would be a lifetime registrant.”    N.T.
Sentencing, 6/27/16, at 16.
2
    The challenge raised on appeal involves the IDSI sentence only.




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Appellant’s trial (twice), and after hearing two witnesses and counsel at

sentencing, the trial court stated:

       Having sat through this case twice, having read the presentence
       report and considering the relevant portions but not the portions
       that were stricken, being the testimony and arguments made
       here today at sentencing, [] in light of all of the information
       provided to me, I do find that [Appellant] is a dangerous
       predator whether or not he meets the criteria under [SORNA],
       which I believe that he will, and I will order that he be submitted
       to that evaluation.

N.T. Sentencing, 6/27/16, at 16-17.

       Clearly, the trial court stated its reasons for the sentence imposed,

including finding Appellant to be a “dangerous predator.”     Thus, Appellant’s

claim that the trial court failed to state any reason for the sentence is

groundless.3

       We construe, therefore, Appellant’s claim as challenging the sufficiency

of the reasons for the sentence imposed, which constitutes a challenge to

the discretionary aspects of his sentence.       See, e.g., Commonwealth v.

Thomas, 573 A.2d 9, 12 (Pa. Super. 1988) (“A challenge to the adequacy of

a statement of reasons is viewed as an appeal of a discretionary aspect of

sentencing.”). Even so, however, the claim does not have merit.4

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3
  In his Rule 1925(b) statement, Appellant acknowledged that the trial court
remarks were sparse, and that the trial court’s explanation for the sentence
consisted of one reason, namely that he was a “dangerous predator.”
4
  Our standard of review of challenges to the discretionary aspects of a
sentence is well-settled.  We apply an abuse of discretion standard.
(Footnote Continued Next Page)


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      Assuming the sufficiency of the reasons claimed raise a substantial

question for our review, we find the claim meritless.

      “When imposing a sentence, a court is required to consider the
      particular circumstances of the offense and the character of the
      defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.
      Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d 1198
      (2005), cert. denied, 545 U.S. 1148, 125 S.Ct. 2984, 162
      L.Ed.2d 902 (2005). “In particular, the court should refer to the
      defendant’s     prior  criminal   record,   his    age,   personal
      characteristics and his potential for rehabilitation.” Id. Where
      the sentencing court had the benefit of a presentence
      investigation report (“PSI”), 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.” Commonwealth v. Devers, 519
      Pa. 88, 101-02, 546 A.2d 12, 18 (1988).                 See also
      Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super.
      2005) (stating if sentencing court has benefit of PSI, law expects
      court was aware of relevant information regarding defendant’s
      character and weighed those considerations along with any
      mitigating factors). Further, where a sentence is within the
      standard range of the guidelines, Pennsylvania law views the
      sentence as appropriate under the Sentencing Code.            See
      Commonwealth v. Cruz-Centeno, 447 Pa. Super. 98, 668
      A.2d 536 (1995), appeal denied, 544 Pa. 653, 676 A.2d 1195
      (1996) (stating combination of PSI and standard range sentence,
      absent more, cannot be considered excessive or unreasonable).

Moury, 992 A.2d at 171.

                       _______________________
(Footnote Continued)

Additionally, because challenges to the discretionary aspects do not entitle
to an appellate review as of right, an appellant challenging the discretionary
aspects of his sentence must invoke this Court’s jurisdiction by satisfying a
four-part test to determine: 1) whether appellant has filed a timely notice of
appeal; (2) whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether appellant’s brief has
a fatal defect; and (4) whether there is a substantial question that the
sentence appealed from is not appropriate under the Sentencing Code. See
Commonwealth v. Moury, 992 A.2d 162, 169-70 (Pa. Super. 2010).



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       As noted above, the trial court’s statements for the sentence came

after the trial court had the opportunity to consult Appellant’s Presentence

Investigation Report (“Report”), and hear two witnesses and counsel’s

arguments at the sentencing hearing.

       It is uncontested that the Report provided information, inter alia,

about Appellant’s past, including a criminal conviction for endangering the

welfare of children and corruption of minors at docket 6198-2006, and a

conviction for corruption of minors at docket 12171-1996.5 The Report also

shows that Appellant was previously ordered to complete sex offender

treatment and “refused to participate, refused to accept responsibility, and

did not successfully complete the program before the period of his five

years[’] probation had expired.” Trial Court Opinion, 1/18/17, at 4 (quoting

Transcript, Sentencing Hearing, 6/27/16, at 13-14). Moreover, the Report

shows that in 2009 behavioral experts concluded that Appellant suffered

from pedophilia, and that he was a very “dangerous, predatory man.” N.T.

Sentencing, 10/20/16, at 14.          Finally, it is uncontested that the sentence

imposed is within the standard range of the guidelines.




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5
  It is worth noting that Appellant did not contest the accuracy of the Report,
with the exception of those matters discussed on page 7 of the sentencing
transcript, which are not relevant here.



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      Upon consideration of the record, and in light of the foregoing

authorities, we conclude Appellant’s claim that the sentencing court failed to

state sufficient reasons for the sentence imposed on the record fails.

      Appellant also relies on Commonwealth v. Coulverson, 34 A.3d 135

(Pa. Super. 2011), for the proposition that a trial court commits an abuse of

discretion if it considers “the impact on the victim to the exclusion of other

sentencing factors such as the rehabilitative needs of the defendant,”

Appellant’s Brief at 24, or the “impact on community.”            Id. at 26.

Coulverson, however, is distinguishable.      In Coulverson, the defendant

pled guilty to rape, IDSI, sexual assault, aggravated indecent assault,

robbery, unlawful restraint, terroristic threats, and two counts of indecent

assault that he committed when he was 19 years old. Coulverson, 34 A.3d

at 138-39. The sentencing court imposed an 18 to 90-year aggregate term

of imprisonment, which included the imposition of multiple consecutive

statutory maximum sentences to accomplish the upper end of the sentence.

Id. at 139. On appeal, we found that the imposition of a 90-year maximum

sentence on a 19-year old defendant was “clearly unreasonable” as the trial

court imposed a virtual life sentence, failing to give any consideration to

defendant’s characteristics and improperly basing its determination that

defendant should “spend as much of his life in prison as the court could

order[.]” Id. at 148.




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      In the present case, as opposed to Coulverson, the trial court

imposed a standard range sentence that did not extend to the statutory

maximum. Indeed, the minimum sentence and the maximum sentence are

both within the standard range of the guidelines and the maximum sentence

is two times the minimum sentence. In contrast, in Coulverson, the

defendant’s maximum sentence was five times his minimum sentence.

Additionally, we discern no indication that the sentencing court sentenced

Appellant with a “fixed purpose of keeping [Appellant] in jail for life,”

Coulverson, 34 A.3d at 149 n. 3, or other factors found improper in

Coulverson. Reliance on Coulverson is, therefore, misplaced.

      Finally, Appellant seems to suggest that the trial court specifically had

to address on the record all points or statements he made at the sentencing

hearing, and that failure to do so equates to failure to consider those points.

For example, Appellant argues the trial court should have considered that he

was 53 years old.    Appellant’s Brief at 25.   In the same vein, Appellant

argues the trial court abused its discretion in not mentioning on the record

at what age he would be eligible for parole or at what age the court

supervision would end. Id. at 26-27. Similarly, Appellant argues that the

trial court’s failure to acknowledge on the record Appellant’s health

conditions and skills was an abuse of discretion.    We are unaware of any

authority supporting Appellant’s suggestions. Indeed, “a lengthy discourse

on the trial court’s sentencing philosophy is not required. Rather, the record


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as a whole must reflect the court’s reasons and its meaningful consideration

of    the   facts   of   the   crime    and    the   character   of   the   offender.”

Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006); see

also Commonwealth v. Brown, 741 A.2d 726 (Pa. Super. 1999) (en

banc), appeal denied, 790 A.2d 1013 (Pa. 2001) (stating court meets

requirement that it state on record reasons for sentence imposed if court

states that it has consulted presentence investigation (“PSI”) report). Here,

the record reveals the sentencing court was fully aware, inter alia, of

Appellant’s characteristics, as described in the Report reviewed by the

sentencing court. We conclude, therefore, Appellant is entitled to no relief

on the grounds raised before us.

        While the instant appeal was pending, another panel of this Court

issued an opinion in Commonwealth v. Butler, --- A.3d ----, 2017 WL

4914155 (Pa. Super. October 31, 2017).                In Butler we held that the

statutory mechanism for Sexually Violent Predator (SVP) designation was

constitutionally flawed under Apprendi6 and Alleyne7 because it increases

the criminal penalty to which a defendant is exposed without the chosen

fact-finder making the necessary factual finding beyond a reasonable doubt.

As a result, we held trial courts may no longer designate convicted

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6
    Apprendi v. New Jersey, 530 U.S. 466 (2000).
7
    Alleyne v. United States, 570 U.S. 99 (2013).



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defendants SVPs (nor may they hold SVP hearings) until the General

Assembly enacts a constitutional designation mechanism. Id. at *6. In the

meantime, trial courts must notify a defendant that he or she is required to

register for 15 years if he or she is convicted of a Tier I sexual offense, 25

years if he or she is convicted of a Tier II sexual offense, or life if he or she

is convicted of a Tier III sexual offense. Id.

      Here, Appellant was determined to be an SVP under the now

unconstitutional SVP mechanism.       While Appellant does not challenge his

SVP determination, we raise it sua sponte as it involves the legality of the

sentence. Id. at *2. Accordingly, in light of Butler, we must reverse the

trial court’s SVP order, and remand this case to the trial court for the sole

purpose of issuing the appropriate notice under Pa.C.S.A. § 9799.23.

Butler, supra.

      Order reversed. Judgment of sentence affirmed in all other aspects.

Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/19/2018




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