J-S74020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT
                                                            OF PENNSYLVANIA
                             Appellee

                        v.

    DAVID SAMUEL HUEBSCH

                             Appellant                      No. 1140 EDA 2018


       Appeal from the Judgment of Sentence Entered February 28, 2018
                 In the Court of Common Pleas of Bucks County
               Criminal Division at No.: CP-09-CR-0001932-2015


BEFORE: LAZARUS, STABILE, and McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J.:                                 FILED MARCH 15, 2019

        Following resentencing, Appellant David Samuel Huebsch pro se appeals

from the February 28, 2018 judgment of sentence entered in the Court of

Common Pleas of Bucks County (“trial court”), challenging, among other

things, the discretionary aspects of his sentence. Upon review, we affirm.

        The facts and procedural history of this case are uncontested. Briefly,

on July 1, 2015, Appellant pleaded guilty to five counts of indecent assault of

a child under the age of thirteen.1            Following an evaluation by the sexual

offenders assessment board (“SOAB”), the trial court designated Appellant as

a sexually violent predator (“SVP”) and sentenced him to two to five years

imprisonment on the first count of indecent assault, and concurrent terms of



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1   18 Pa.C.S.A. § 3126(a)(7).
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five years’ probation for each of the four remaining counts.      Thus, in the

aggregate, Appellant was sentenced to twenty years’ probation.

       Appellant timely filed post-sentence motions, challenging his sentence.

The trial court conducted a hearing on March 26, 2016, following which it

granted Appellant relief in part by reducing his prison sentence from two to

five years’ to two to four years’ imprisonment. The probationary sentence

remained the same, i.e., twenty years’ probation.      Appellant did not file a

direct appeal.

       On May 1, 2017, Appellant pro se filed a petition under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46, raising, among other

things, claims for ineffective assistance of counsel. The PCRA court appointed

counsel. Following a hearing, on January 5, 2018, the PCRA court issued an

order, concluding that Appellant was “entitled to relief from his [SVP]

designation” under Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super.

2017),2 appeal granted, 190 A.3d 581 (Pa. 2018); the PCRA court denied all

other PCRA claims. See PCRA Order, 1/5/18.
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2 In Butler, this Court concluded that, in light of our Supreme Court’s decision
in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), “Section
9799.24(e)(3) of SORNA [regarding SVP designation] violates the federal and
state constitutions because it increases the criminal penalty to which a
defendant is exposed without the chosen fact-finder making the necessary
factual findings beyond a reasonable doubt.” Butler, 173 A.3d at 1218. This
Court’s reasoning in Butler was based on the United States Supreme Court’s
decision in Alleyne v. United States, 570 U.S. 99 (2013) (holding that “[a]ny
fact that, by law, increases the penalty for a crime is an ‘element’ that must
be submitted to the jury and found beyond a reasonable doubt”), which our



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       On February 28, 2018, the trial court vacated Appellant’s SVP

designation and resentenced him to the same term of two to four years’

imprisonment and a concurrent term of twenty years’ probation. Appellant

did not file any post-sentence motions.          On March 28, 2018, Appellant

appealed the PCRA court’s January 5, 2018 order denying his other PCRA

claims and the February 28, 2018 judgment of sentence. 3 Appellant and the

trial court complied with Pa.R.A.P. 1925. At Appellant’s request, the trial court

conducted a Grazier4 hearing, following which Appellant was permitted to

proceed pro se.

       On appeal, Appellant raises three issues for our review:

       I.     Did the [trial court] err in imposing probation on [Appellant]
              based solely upon expert testimony obtained within an SVP


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Supreme Court has held does not apply retroactively where, as here, the
judgment of sentence is final. See Commonwealth v. Washington, 142
A.3d 810, 820 (Pa. 2016) (holding that “Alleyne does not apply retroactively
to cases pending on collateral review”).
3 To the extent Appellant files an appeal from the January 5, 2018 order
denying him PCRA relief, we must dismiss the appeal as untimely. See
Pa.R.A.P. 903(a) (a notice of appeal must be filed within thirty days after the
entry of the order from which the appeal is taken); Commonwealth v.
Grove, 170 A.3d 1127, 1138 (Pa. Super. 2017) (noting that a PCRA court’s
order granting relief with regard to sentencing and denying all other claims
was final and appealable), appeal denied, 185 A.3d 967 (Pa. 2018);
Commonwealth v. Watley, 153 A.3d 1034, 1039 n.3 (Pa. Super. 2016),
appeal denied, 169 A.3d 574 (Pa. 2017) (holding that order directing
resentencing but denying PCRA relief on all other issues was final appealable
order).
4   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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              hearing that was deemed to be violative of the United States
              and Pennsylvania Constitutions?

       II.    Did the [trial court] err in imposing a term of probation upon
              [Appellant] when the SOAB report contained errors
              inconsistent with police reports and prior witness accounts
              of alleged incidents?

       III.   Did the [trial court] err in imposing a term of probation upon
              [Appellant] that was punitive in nature based upon
              Pennsylvania Supreme Court’s decision in [Muniz] and
              thereby deemed double jeopardy under both the
              Pennsylvania and United States Constitutions?

    Appellant’s Brief at 4.

       In his first claim, Appellant argues that the trial court erred in

considering information presented at his SVP hearing in fashioning his

sentence. As the Commonwealth aptly observes, Appellant’s claim that the

trial court considered an impermissible factor at sentencing is a challenge to

the discretionary aspects of sentencing.5 Commonwealth v. Dodge, 77 A.3d

1263, 1268 (Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014)

(noting that a claim of a court’s reliance upon impermissible factors in

fashioning a sentence implicates the discretionary aspects of sentence). It is

well-settled that “[t]he right to appeal a discretionary aspect of sentence is

not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super.

2011). Rather, where an appellant challenges the discretionary aspects of a

sentence, an appellant’s appeal should be considered as a petition for
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5 An appellant may challenge the discretionary aspects of sentence, so long
as there is no plea agreement as to the terms of the sentence.
Commonwealth v. Dalberto, 648 A.2d 16, 21 (Pa. Super. 1994). Appellant
here entered an open plea, N.T. Guilty Plea, 7/1/15, at 7, thus he is not
precluded from raising discretionary aspects of his sentence.          See
Commonwealth v. Stewart, 867 A.2d 589, 591 (Pa. Super. 2005).

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allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa.

Super. 2007). As we stated in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

      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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)). Whether a particular issue constitutes a substantial question about

the appropriateness of sentence is a question to be evaluated on a case-by-

case basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.

2001), appeal denied, 796 A.2d 979 (Pa. 2002).

      Here, although Appellant timely appealed from the February 28, 2018

judgment of sentence, he failed to preserve the discretionary aspects of

sentencing claims for our review because he did not raise them before the trial

court at sentencing or in the post-sentence motion.             See Pa.R.Crim.

720(A)(1); see also Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.

Super. 2013) (holding objections to discretionary aspects of sentence are

generally waived if not raised at sentencing or preserved in a post-sentence

motion).    Additionally, the Commonwealth objects to Appellant’s failure to


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include a Pa.R.A.P. 2119(f) statement in his brief.           Thus, Appellant’s

noncompliance with Rule 2119(f) also requires us to find his claims waived.

Commonwealth v. Griffin, 149 A.3d 349, 353 (Pa. Super. 2016) (“If the

Commonwealth objects to the appellant’s failure to comply with [Rule]

2119(f), the sentencing claim is waived for purposes of review.”) (citations

and quotation marks omitted), appeal granted, 174 A.3d 565 (Pa. 2017).

Accordingly, Appellant’s discretionary aspects of sentencing claim is waived.

       Similarly,6 in his second claim, Appellant challenges the validity of his

“SOAB report” that the trial court allegedly considered at sentencing because

it “contained facts that were not based upon the certified record.” Appellant’s

Brief at 17. Our review of the record reveals that Appellant failed to challenge

the validity of the SOAB report before the trial court, either at sentencing or

in a post-sentence motion. Accordingly, we decline to review this claim. See

Pa.R.A.P. 302(a) (issues not raised in the lower court are waived and cannot

be raised for the first time on appeal).

       In his third claim, Appellant attempts to implicate the legality of his

sentence.     Appellant argues that his probation sentence of twenty years

violates the double jeopardy clauses of the United States and Pennsylvania

constitutions. In support, Appellant points out that his probationary sentence

was based upon evidence presented during his SVP hearing, which he argues
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6 Appellant’s first two claims are intertwined, because, at the core, he
challenges the trial court’s consideration of Dr. Eric Weinstein’s (psychologist)
report prepared, and testimony offered, for purposes Appellant’s evaluation
by the SOAB.

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was avoid ab initio because his SVP designation was ruled illegal under Butler.

Appellant’s argument lacks merit.

      First, the trial court re-imposed upon Appellant the exact same sentence

of two to four years’ imprisonment and a concurrent term of twenty years’

probation.    As a result, no double jeopardy concerns occur in such

circumstances. See Commonwealth v. Sutton, 583 A.2d 500, 502–03 (Pa.

Super. 1990) (declaring that “no double jeopardy violation is implicated where

the aggregate sentence upon resentencing does not exceed the original

aggregate sentence”) (citation omitted), appeal denied, 596 A.2d 156 (Pa.

1991); see also Commonwealth v. Adams, 504 A.2d 1264, 1268 (1986)

(en banc) (concluding that, because there was no increase in Adams’

aggregate sentence, there was no double jeopardy violation).       Second, in

Commonwealth v. Shugars, 895 A.2d 1270 (Pa. Super. 2006), we

explained that a trial court is permitted to consider a defendant’s SOAB

evaluation in fashioning a sentence. “[A] copy of the SOAB assessment shall

be provided to the agency preparing the presentence investigation, and

therefore, it may be utilized by the court as an aid at sentencing.” Shugars,

895 A.2d at 1277 (citations omitted) (emphasis in original). Third, insofar as

Appellant suggests that Muniz prohibits a term of probation, he is mistaken.

Our Supreme Court held in Muniz that SORNA’s registration provisions

constitute punishment, and, therefore, the retroactive application of those

provisions violates the ex post facto clauses of the federal and Pennsylvania

constitutions. Finally, Section 9721(a) of the Sentencing Code, provides that

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a trial court shall “consider and select one or more of the following

alternatives and may impose them consecutively or concurrently: (1) an order

of probation. (2) A determination of guilt without further penalty. (3) Partial

confinement. (4) Total confinement. (5) A fine. . . . . . 42 Pa.C.S.A. §

9721(a) (emphasis added). Here, the trial court chose to impose a term of

two to fours’ imprisonment and a concurrent sentence of twenty years’

probation.

      In sum, Appellant’s claims are either waived or without merit.

Accordingly, we affirm the trial court’s judgment of sentence.

      Judgment of sentence affirmed.

      Judge Lazarus joins this memorandum and files a concurring statement.

     Judge McLaughlin joins this memorandum.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/19




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