J-S37043-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :       IN THE SUPERIOR COURT OF
                                         :             PENNSYLVANIA
              v.                         :
                                         :
JOHN S. ORTEGA,                          :
                                         :
                   Appellant             :          No. 1845 MDA 2016

       Appeal from the Judgment of Sentence entered November 24, 2014
                 in the Court of Common Pleas of Berks County,
               Criminal Division, No(s): CP-06-CR-0001670-2014

BEFORE: STABILE, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED JUNE 27, 2017

        John S. Ortega (“Ortega”) appeals from the judgment of sentence

entered after he pled guilty to corruption of minors,1 made final by an

October 19, 2016 Order (hereinafter “the SVP Order”) classifying him as a

sexually violent predator (“SVP”).2 We affirm.




1
    See 18 Pa.C.S.A. § 6301(a)(ii).
2
   This Court has held that where, as here, “a defendant pleads guilty and
waives a pre-sentence SVP determination, the judgment of sentence is not
final until that determination is rendered.” Commonwealth v. Schrader,
141 A.3d 558, 561 (Pa. Super. 2016). Accordingly, the SVP Order is a
component of the judgment of sentence imposed upon Ortega on November
24, 2014, see id. at 562, and this appeal properly lies from the judgment of
sentence. See Commonwealth v. Lawrence, 99 A.3d 116, 117 n.1 (Pa.
Super. 2014) (stating that “a direct appeal in a criminal case can only lie
from the judgment of sentence.”). We have therefore amended the caption
accordingly.
J-S37043-17


      The trial court concisely summarized the relevant           factual and

procedural history underlying this appeal, which we adopt herein by

reference. See Trial Court Opinion, 12/29/16, at 1-3.3

      In this timely appeal, Ortega presents the following issue for our

review: “Whether the [trial] court erred in relying upon improper evidence

in making its determination that [] Ortega met the criteria as a [SVP,] where

the court relied upon the defense’s lack of response to the [seven-month]

statement made at sentencing by the victim’s mother?” Brief for Appellant

at 7 (some capitalization omitted).

      In reviewing a claim that the evidence was insufficient to support an

SVP designation, we utilize the following standard of review:

             A challenge to the sufficiency of the evidence is a question
      of law requiring a plenary scope of review. The appropriate
      standard of review regarding the sufficiency of the evidence is
      whether the evidence admitted at trial and all reasonable
      inferences drawn therefrom, when viewed in the light most
      favorable to the Commonwealth as the verdict winner, is
      sufficient to support all the elements of the offenses. As a
      reviewing court, we may not weigh the evidence and substitute
      our judgment for that of the fact-finder. Furthermore, a fact-
      finder is free to believe all, part or none of the evidence
      presented.

           At the [SVP] hearing[,] … the court shall determine
      whether the Commonwealth has proved by clear and convincing

3
  On November 24, 2014, the trial court sentenced Ortega to 9 to 23 months
in prison, followed by five years of probation. At the sentencing hearing,
the victim’s mother provided a victim impact statement (hereinafter “the
mother’s statement”), which the prosecutor read aloud.           See N.T.,
11/24/14, at 9-12. The mother’s statement alleged, in relevant part, that
Ortega’s sexual abuse of the victim occurred multiple times over a period of
over seven months (hereinafter, “the seven-month statement”). Id. at 12.


                                  -2-
J-S37043-17


      evidence that the individual is a sexually violent predator.
      Accordingly, in reviewing the sufficiency of the evidence
      regarding the determination of SVP status, we will reverse the
      trial court only if the Commonwealth has not presented clear and
      convincing evidence sufficient to enable the trial court to
      determine that each element required by the statute has been
      satisfied.

Commonwealth v. Brooks, 7 A.3d 852, 860 (Pa. Super. 2010) (citation

omitted).

      Ortega argues that the trial court erred in relying upon improper

evidence, i.e., the seven-month statement, in determining that he met the

requirements of an SVP, which determination “is inherently flawed since it is

based upon unsubstantiated allegations[.]”     Brief for Appellant at 12, 18.

Specifically, Ortega points out that the timeline of the abuse, as established

in the guilty plea, was between the summer of 2012 and November 2012,

whereas the seven-month statement alleged a slightly longer time period.

Id. at 14-15. According to Ortega, “it is plain from the record that the trial

court clearly relied heavily on the mother’s statement[]. Thus, in vital part,

the trial court’s Opinion of [] Ortega’s SVP status was formed based on

uncharged conduct[,]” which is impermissible under the law. Id. at 15. In

support, Ortega relies upon the Concurring Opinion of the Honorable Mary

Jane Bowes in Commonwealth v. Krouse, 799 A.2d 835 (Pa. Super. 2002)

(en banc), wherein she stated the following:

      I conclude that a determination that a defendant is a sexually
      violent predator cannot be based upon unproven allegations that
      are not established by the factual basis for a guilty plea and that
      are not supported by the nature of the charges to which a


                                  -3-
J-S37043-17


      defendant has pled guilty, especially when the defendant
      consistently    has    denied    the     unproven    allegations.
      Commonwealth v. Berrigan, 369 Pa. Super. 145, 535 A.2d 91
      (Pa. Super. 1987) (en banc) (when imposing sentence, the
      sentencing court is not permitted to rely upon denied allegations
      established only through hearsay).

Krouse, 799 A.2d at 845-46 (Bowes, J., concurring).

      Ortega further asserts that “the [trial] court focused a great deal of

attention … on the fact that neither [] Ortega nor defense counsel corrected

or rebutted [the seven-month statement].” Brief for Appellant at 16 (citing,

inter alia, N.T. (SVP Hearing), 10/14/16, at 91-92 (wherein the trial court

stated to defense counsel “either [you or] your client could have said that

the facts that [the victim’s mother] said about what happened are not

true[,] or you could have told [the court] that’s not true.        But no one

corrected [the victim’s mother] when she said [the assaults] occurred for

over 7 months.”)); see also Brief for Appellant at 18 (asserting that “the

court forced [] Ortega to adopt these erroneous statements as truth due to

his failure to eschew civility and challenge the victim’s mother.”).

      In its Opinion, the trial court summarized the relevant law, explained

the court’s reasons for determining that Ortega met the requirements for

SVP classification, thoroughly addressed Ortega’s above-described claims,

and determined that they lack merit. See Trial Court Opinion, 12/29/16, at

3-7. In sum, the trial court stated that “[t]he [c]ourt was not focused in any

way upon the [] seven-month statement in rendering its decision, [and] was

not interested in arguing with defense counsel about what he did or did not


                                  -4-
J-S37043-17


do at the sentencing hearing in response to the seven-month statement ….”

Id. at 7.   Our review reveals that the trial court’s cogent reasoning is

supported by the record and the law. Accordingly, as we discern no abuse of

discretion or error of law by the trial court in making its SVP determination,

which is supported by sufficient evidence, we affirm based upon the trial

court’s reasoning in rejecting Ortega’s sole issue on appeal. See id. at 3-7.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/27/2017




                                 -5-
                                                                                                   Circulated 05/25/2017 03:49 PM   , .




    COMMONWEAL TH OF PENNSYLVANIA                                   IN THE COURT OF COMMON PLEAS
                                                                    OF BERKS COUNTY, PENNSYLVANIA
                                                                    CRIMINAL DIVISION
                              v.
                                                                    No. CP-06-CR-1670-2014
JOHN ORTEGA,
                              Defendant


Jonathan H. Kurland, Assistant District Attorney, for Commonwealth
Allan L. Sodomsky, for Defendant, John Ortega

OPINION, Keller, S.J.              45t,.J-                                             Dated: December '5 ,';016

            John Ortega (hereinafter "Defendant"),                appeals from the October 19, 2016 order'

classifying Defendant as a sexually violent predator.

            I.       FACTUAL and PROCEDURAL IDSTORY

            Defendant was charged with Statutory Sexual Assault, 2 counts of Intimidation of

Witnesses or Victims, Aggravated Indecent Assault, Corruption of Minors, and Indecent Assault.

On November 24, 2014, Defendant entered a negotiated plea of guilty to Corruption of Minors,

42 Pa.C.S.A.          § 6301(a)(ii), a Tier I offense under the Sexual Offender Registration and

Notification       Act (hereinafter "SORNA").             The factual basis for the plea was placed on the

record:

       Mr. Kurland: The victim in this matter is a female juvenile with a date of birth of May
             29~, 1998. The defendant's date of birth is September                   is",
                                                                                   1971. The defendant
             and the victim are not married to one another. Between the period of the Summer
             or'2012 through to November of 2012, at the location of the defendant's residence
              . . . on numerous occasions at his residence the defendant had illegal sexual
             relations with the miµ.pf ti~1Pf!AArt'if\i~hiJ1:f).µding sexual intercourse.
       Mr. Sodomsky: Your Hon6r, I BeHd9"t'tBe'tiate of birth was incorrect. I believe it's
             September 5th, 1971ze1¥1~lfe              ~~!       we concur with.


I
                                          srsnoo .:W >f M31~
    The order is titled "Praecipe for Hearing and Results of Evaluation." The text clearly indicates it is an "order."


                                                              1
    The Court: · Are you pleading guilty to this offense because you committed it?
    The Defendant: Yes, Sir.

Transcript of Proceedings, Nov. 24, 2014, pp. 4-5.

        Defendant   waived   his right to a pre-sentence     assessment   and determination    of

classification as a sexually violent predator and asked to be immediately sentenced. In response

to the Court's inquiry, the Commonwealth indicated that the victim was best friends with

Defendant's daughter; Defendant met the victim at a roller-skating rink where the girls

socialized; and the victim would sleep over at Defendant's house on occasion, which is where

the abuse began. The Commonwealth also shared a written statement from the victim's mother

wherein she lamented not only about Defendant's pedophilic behavior, but also his dragging this

matter out for two long, painful years in which he endlessly lied to investigators causing that

much more questioning, examination, embarrassment, and humiliation of and to her daughter.

Defense counsel addressed the denial issue by stating that there had been no challenge as long as

he had been involved. Defendant apologized for his conduct. The Court sentenced Defendant

with the expectation that a sexually violent predator hearing would be held at a later time upon

praecipe by the Commonwealth.

       On February 5, 2015, the Commonwealth filed a Praecipe for Hearing and Results of

Evaluation, which indicated that the Sexual Offender Assessment Board determined Defendant

to be a sexually violent predator and requested that the Court schedule a hearing. After some

continuances, the hearing was ultimately held on October 14, 2016. By order dated October 19,

2016, the Court found Defendant to be a sexually violent predator. On November 10, 2016,

Defendant filed a Notice of Appeal. On November 23, 2016, the Court ordered Defendant to file

a concise statement of errors complained of on appeal. Defendant filed a concise statement

complaining of one issue: "Whether the Court erred in relying upon improper evidence in



                                               2
 making its determination that Appellant Ortega met the criteria as a Sexual Violent Predator

where the Court relied upon the defense's lack of response to the statement made at Sentencing

by the victim's mother?"

        II.     DISCUSSION

        Under SORJ',IA, the "court shall order an individual convicted of a sexually violent

offense to be assessed by" the Sexual Offender Assessment Board (hereinafter "SOAB"). 42

Pa.C.S.A. § 9799.24(a). A member of the SOAB "shall conduct an assessment to determine if

the· individual should be classified as a sexually violent predator." § 9799.24(b). A "sexually

violent predator" is defined as an individual who "is determined to be sexually violent predator

under section 9799.24 (assessments) due to a mental abnormality or personality disorder that

makes the individual likely to engage in predatory sexually violent offenses." 42 Pa.C.S.A. §

9799.12. "Mental abnormality" is defined as "[a] congenital or acquired condition of a person

that affects the emotional or volitional capacity of the person in a manner that predisposes that

person to the commission of criminal sexual acts to a degree that makes the person a menace to

the health and safety of other persons." Id. "Predatory" is defined as "[a]n act directed at a

stranger or at a person with whom a relationship has been initiated, established, maintained or

promoted, in whole or in part, in order to facilitate or support victimization." Id.

       In conducting the assessment, the following factors shall be examined:

   (1) Facts of the current offense, including:
       (i) Whether the offense involved multiple victims.
       (ii) Whether the individual exceeded the means necessary to achieve the offense.
       (iii) The nature of the sexual contact with the victim.
       (iv) Relationship of the individual to the victim.
       (v) Age of the victim.
       (vi) Whether the offense included a display of unusual cruelty by the individual
       during the commission of the crime.
       (vii) The mental capacity of the victim.
   (2) Prior offense history, including:



                                                  3
            (i) The individual's prior criminal record.
            (ii) Whether the individual completed any prior sentences.
            (iii) Whether the individual participated in available programs for sexual offenders.
        (3) Characteristics of the individual, including:
            (i) Age.
            (ii) Use of illegal drugs.
            (iii) Any mental illness, mental disability or mental abnormality.
            (iv) Behavioral characteristics that contribute to the individual's conduct.
        (4) Factors that are supported in a sexual offender assessment field as criteria reasonably
        related to the risk of reoffense.

    42 Pa.C.S.A. §9799.24(b).

           SOAB member, Veronique N. Valliere, Psy.D., conducted an assessment on January 6,

    2015. The assessment was solely records-based because Defendant declined to participate. Dr.

    Valliere issued a Sex Offender Evaluation report finding that Defendant meets the criteria to be

    classified as a sexually violent predator. Her in-court testimony was consistent with her report.

           Defendant obtained his own evaluation from Frank M. Dattilio, Ph.D. While Dr. Dattilio

reviewed many of the same documents as Dr. Valliere, his report and testimony were heavily

laden and influenced by his interviews with Defendant and his family. In these interviews,

Defendant apparently denied sexually abusing the victim (contrary to his guilty plea/ and

minimized contradictory reports and evaluations concerning prior events. Despite his interviews

and extensive testing, it was clear in his testimony that Dr. Dattilio did not have all relevant

information available to him, such that even though he stood by his determination that Defendant

does not meet the criteria to be classified as a sexually violent predator he vacillated somewhat

and clearly had some reservations.3

           With respect to the facts of the current offense, multiple victims were not involved;

however, the sexual abuse did involve multiple sex acts over a period of time while Defendant's


2
 Dr. Dattilio testified that Defendant's denial of the current offense factored very much into his ultimate opinion.
3
 In his testimony, Dr. Dattilio agreed with Dr. Valliere that Defendant suffers from a mental abnonnality. He
disagreed that Defendant was predatorial.


                                                           4
•


    children were in the home. Defendant did not do more than was necessary to gain the victim's

    compliance, relying on her naivete, complimenting her, and intimating that he would go to jail if

    she told anyone. Defendant gained access to the victim and her trust through his daughter. He

    used this relationship to engage in sexual contact with the victim that included touching her

    breasts, kissing her, having her touch his penis, and penetrating her vagina with his penis.

    Defendant did not display any unusual cruelty. At the time of these offenses, the victim was 14

    years of age and described as lonely.

           With respect to Defendant's prior offense history, there are no criminal charges; however,

    Defendant was investigated and evaluated for sexually abusing his 14-year-old half-sister in or

    about 2002. Although he avoided criminal prosecution, it was obvious that he was aware of the

    illegality and consequences of his conduct. Defendant participated in therapy for the sexual

    abuse of his half-sister and was able to articulate responsibility and culpability. He had the

    resources and tools to manage his sexual arousal to adolescents but did not use them.

           In considering.the Defendant's characteristics, it is noted that he was 43 years old at the

    time of the offense.   Per Dr. Valliere's report, his sexual arousal patterns and personality are

    established and not influenced by any substance abuse problem. As for the criterion of mental

illness, disability, or abnormality, Defendant meets the criteria for Paraphilic Disorder,

specifically being attracted to adolescent females. Despite knowing the consequences of his

behavior, he has repeatedly pursued sexual activity with adolescents, first with his half-sister,

then IO years later with the current victim, and more recently with a young woman barely of the

age of majority whom he has impregnated.4 He exploited the victim knowing she was lonely

without regard to the impact on his own daughter. His violation of legal, moral, and familial


4
  While this last relationship might be legal, the fact that Defendant pursued a woman much younger than himself is
relevant.


                                                         5
    ••
'

     boundaries has created significant dysfunction in his own life in addition to traumatizing his

     minor victims. All of this is indicative of a deviant and motivating sexual arousal that reflects a

     mental abnormality or personality disorder.

              Defendant is a risk for re-offense. He has both related and unrelated victims. He

     recidivated even after having been investigated for the abuse of his half-sister and after having

     received treatment. s        His Paraphilic Disorder is considered a manageable but not curable

    condition, meaning that it will persist for his lifetime.

              Defendant's behavior meets the criteria to be deemed predatory. He was acquainted with

    the victim through his daughter and used that relationship to groom his own. He secretly texted

    the victim and sexualized his relationship with her, facilitating victimization.

              Now, based upon the above discussion, it is clear that Defendant should be classified as a

    sexually violent predator. He meets the definition of "sexually violent predator" insofar as he

    has been assessed to have a "mental abnormality or personality disorder that makes [him] likely

    to engage in predatory sexually violent offenses." Although Defendant complains in his Concise

    Statement that "the Court relied upon the defense's lack of response to the statement made at

    Sentencing by the victim's mother," none of the above discussion relies on the testimony of the

    victim's mother.

             The Court recalls that Dr. Dattilio was questioned about whether Dr. Dattilio considered

    the guilty plea colloquy in forming his opinion. Dr. Dattilio had not. After he was given the

    opportunity to read the transcript, he was asked whether anything in it changed his opinion. Dr.

    Dattilio said that the mother's stating that the abuse was ongoing for seven months raised a

    concern. Defense counsel suggested that the expert focus not on what the mother said, but


    'Dr. Valliere testified that it is possible the treatment was not effective, but more likely the recidivism reflects the
    persistence of Defendant's sexual interests.


                                                                6
••


 rather, he should focus on the agreement between the Commonwealth and Defendant that the

 abuse occurred between the summer and November, an arguably shorter period than 7 months.

 The Court attempted to clarify that the facts underlying the guilty plea are just one thing while

 the whole proceeding would be relevant to evaluating the Defendant's classification as a sexually

 violent predator. The Court was not focused in any way upon the mother's seven-month

 statement in rendering its decision, was not interested in arguing with defense counsel about

 what he did or did not do at the sentencing hearing in response to the seven-month statement, but

 was interested in hearing from the Defendant's expert, Dr. Dattilio, whether the whole context of

the proceeding affected his opinion in light of the Defendant's telling Dr. Dattilio that he did not

commit the offense. Dr. Dattilio responded that it did. Despite the effect of the entire sentencing

proceeding on his opinion, despite being aware of Defendant's initially denying then later

admitting to sexually abusing his half-sister, and despite recognizing that his testing showed that

Defendant may experience periodic emotional and behavioral dysfunction causing him to

conclude that Defendant struggles with personal limitations that cause him to engage in

increased risk-taking behavior and erratic pursuits, Dr. Dattilio remained of the ultimate opinion

that Defendant was not a sexually violent predator. After considering all of the testimony, the

Court gave more weight to the opinion of Dr. Valliere.

        III.   CONCLUSION

        The assessments show that Defendant suffers from Paraphilic Disorder, a condition that

qualifies as a "mental illness, disorder, or abnormality."       Defendant's actions in abusing

relationships to facilitate victimization shows his ability to use "predatory" behavior.

Defendant's abusing a second victim after having received treatment for abusing his half-sister

demonstrates his propensity for recidivism. It is clear he should be classified as a "sexually




                                                7
-,

     .
 violent predator."

          For the foregoing reasons, it is respectfully suggested that the Court's October 19, 2016

 classification of Defendant as a sexually violent predator should be affirmed.


                                                     BY THE COURT:




 Distribution: Clerk of Court; District Attorney; Defense Counsel; Defendant




                                                        8
