J-S04005-18


2NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P.
65.37

COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
            v.                        :
                                      :
                                      :
ROBERT LEE BIEBER                     :
                                      :
                 Appellant            :   No. 1057 MDA 2017

           Appeal from the Judgment of Sentence April 13, 2016
   In the Court of Common Pleas of Wyoming County Criminal Division at
                     No(s): CP-66-CR-0000207-2015

COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
            v.                        :
                                      :
                                      :
ROBERT LEE BIEBER                     :
                                      :
                 Appellant            :   No. 1058 MDA 2017

           Appeal from the Judgment of Sentence April 13, 2016
   In the Court of Common Pleas of Wyoming County Criminal Division at
                     No(s): CP-66-CR-0000434-2015



BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                       FILED MARCH 08, 2018

     Appellant, Robert Lee Bieber, appeals from the judgments of sentence

entered on April 13, 2016, following his January 8, 2016 guilty plea to

statutory sexual assault, 18 Pa.C.S. § 3122.1(b), at Wyoming County Court

of Common Pleas Docket Number 207-2015, and indecent assault, 18
J-S04005-18


Pa.C.S. § 3126(a)(7), at Docket Number 434-2015. Appellate counsel has

filed a petition to withdraw representation and a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009).1 After review, we deny counsel’s petition to withdraw

as counsel, reverse the order finding Appellant to be a Sexually Violent

Predator (“SVP”) and remand to the trial court to advise Appellant of his

obligations under Pennsylvania’s Sex Offender Registration and Notification

Act (“SORNA”), 42 Pa.C.S. §§ 9799.10–9799.41. In all other respects, we

affirm the judgments of sentence.2

       The trial court summarized the facts of the crime and procedural

history as follows:3

       [O]n or about December 23, 2014[,] Pennsylvania State Police
       received a telephone call from [C.S.] who stated her eight year
       old daughter (hereinafter “L.S.”) was sexually molested by
       [Appellant] while visiting [Appellant’s] daughter at [Appellant’s]
       residence on December 20, 2014.

             An interview was scheduled          and   conducted   at   the
       Children’s Advocacy Center.

____________________________________________


1We note with disapproval the Commonwealth’s failure to file a brief in this
matter.

2  As our disposition addresses the reasons Appellant set forth in support of
his Response to Counsel’s Anders Brief and Application for Change of
Appointed Counsel, filed on December 18, 2017, that Application is
dismissed as moot.

3 Appellate counsel has failed to attach to his brief a copy of the trial court
opinion in contravention of Pa.R.A.P. 2111(b).



                                           -2-
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          According to the interview contained in the Affidavit of
     Probable Cause:

           L.S. stated she went to [Appellant’s] house for the
     weekend to visit her friend. While sleeping, [Appellant] woke
     her up and took her into the bathroom, pulled up her night
     gown, which was a tee shirt [Appellant] gave her to wear as a
     night gown. [Appellant] then pulled down her underpants. He
     then pulled down his pants and put his bad part in her bad part.
     L.S. stated white stuff came out of his bad part and went on her
     legs, the carpet/throw rug and the floor. L.S. further stated
     [Appellant] then told her to wipe the white stuff off of her, which
     she did, using tissues. L.S. then threw the tissues in the
     garbage can that was in the bathroom. [Appellant] told her to
     get dressed and go back to bed, which she did. When asked
     during the interview what L.S. meant by his bad parts, she
     pointed to her crotch area to indicate the area of the bad part for
     [Appellant]. When asked what L.S. meant by her bad part, she
     again pointed to her crotch area.

     L.S. was seen by Dr. Rogan, the Children’s Advocacy Center
     doctor. Dr. Rogan found signs of irritation, redness, tenderness
     and swelling around L.S.’s vagina and rectum/anus. All signs
     were not normal. He also observed a white viscous discharge
     matter in the same area. Samples were gathered for a rape kit,
     said kit was turned over to the Pennsylvania State Police for
     further action.

     [T]he State Police took possession of L.S.’s underpants she was
     wearing the night of the incident. The underpants and the rape
     kit were transported to the PSP [Pennsylvania State Police]
     crime lab for analysis.

           A search warrant was obtained for [Appellant’s] residence.
     At the time of the search, PSP took possession of throw rugs,
     garbage can, nine paper towels or tissues that had been used
     and deposited into the garbage can.

                                   * * *

          On March 16, 201[5], police obtained a search warrant for
     [Appellant’s] DNA and obtained a sample the next day.

Trial Court Opinion, 8/10/17, at 1–3.

                                    -3-
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       Police filed a criminal information at Wyoming County Court of

Common Pleas Docket Number 207-2015, charging Appellant with one count

each of rape, statutory sexual assault: complainant under sixteen years old

and the defendant is eleven years or more older, involuntary deviate sexual

intercourse with a child, involuntary deviate sexual intercourse: complainant

less than thirteen years old, aggravated indecent assault of a child,

aggravated indecent assault without consent, aggravated indecent assault:

complainant less than thirteen years old, aggravated indecent assault:

complainant less than sixteen years old and the defendant is four or more

years older, indecent assault: complainant less than thirteen years old,

corruption of minor, indecent assault without consent, and indecent assault:

complainant less than sixteen years old and defendant is four or more years

older.4

       Police filed an additional affidavit of probable cause against Appellant

on May 29, 2015, asserting that the Pennsylvania State Police received

information regarding Appellant’s alleged sexual assault of a different minor

child, B.V., when the child was three years old. The trial court summarized

that incident as follows:



____________________________________________


4  18 Pa.C.S. §§ 3121(c), 3122.1(b), 3123(b), 3123(a)(7), 3125(b),
3125(a)(1), 3125(a)(7), 3125(a)(8), 3126(a)(7), 6301(a), 3126(a)(1),
3126(a)(8), respectively.



                                           -4-
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             B.V. stated the first time [Appellant] touched her was at
       her Aunt Amy’s5 house for a sleepover. While she was sleeping
       she heard a noise and thought Aunt Amy got up. [Appellant]
       had been in the room with B.V. and when Amy came into the
       room to check on the children, [Appellant] hid under the bed.
       B.V. was sleeping in bed with one of the other children and
       [Appellant] woke her up and took her into the bathroom and
       touched her. [Appellant] then took [B.V.] by the hand into the
       bathroom and touched her privates with his hand. Upon being
       asked where [Appellant] touched B.V. she pointed to her vaginal
       area to indicate where she was touched. [Appellant] touched
       her with the tip of his fingers over her clothes in the vaginal
       area. B.V. did not touch [Appellant] and said that he was
       wearing jeans and a shirt. [Appellant] then took B.V. back to
       the bedroom and told her not to tell anyone.

Trial Court Opinion, 8/10/17, at 4.

       On December 1, 2015, police filed a criminal information at Wyoming

County Court of Common Pleas Docket Number 434-2015 regarding B.V.,

charging Appellant with one count of corruption of a minor: defendant over

age eighteen, three counts of indecent assault: complainant less than

thirteen, and two counts of endangering the welfare of children.6

       Appellant pled guilty as noted above on January 8, 2016.               An

evaluation by Paula B. Burst of the Pennsylvania Sexual Offenders

Assessment Board (“SOAB”) disclosed Appellant’s prior convictions in Ohio of

two counts of gross sexual imposition of a ten-year-old girl.       Trial Court

____________________________________________


5  The trial court also revealed that Appellant’s former paramour was a
woman named Amy and that Appellant requested to speak to her while he
was in custody. Trial Court Opinion, 8/10/17, at 3.

6   18 Pa.C.S. §§ 6301(a)(1)(ii), 3126(a)(7), and 4304(a)(1), respectively.



                                           -5-
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Opinion, 8/10/17, at 6. Following a hearing on April 11, 2016, the trial court

found Appellant to be an SVP. Id. at 7.

       The trial court reviewed “an extensive Pre Sentence Investigation

report [“PSI”] and evaluative summary”7 and held a sentencing hearing on

April 13, 2016. Trial Court Opinion, 8/10/17, at 7. At Docket Number 207-

2015, the trial court sentenced Appellant to a term of imprisonment of 120

to 240 months, the statutory maximum. At Docket Number 434-2015, the

court sentenced Appellant to a consecutive term of incarceration of thirty to

sixty months, the statutory maximum.

       Appellant filed a post-sentence motion on April 14, 2016, which the

trial court denied on April 15, 2016. Defense counsel also filed a motion for

leave to withdraw as counsel on April 14, 2016, which the trial court granted

on April 15, 2016, and contemporaneously appointed new counsel for

Appellant. Order, 4/15/16. Appellant did not file a direct appeal.

       On November 22, 2016, Appellant filed a pro se petition for collateral

relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§

9541-9546.8      The trial court appointed counsel.    It appears there was a

____________________________________________


7   The PSI report is not contained in the record certified on appeal.

8  The record contains a letter from newly appointed counsel to Appellant
that states:

             Under Pennsylvania law, a judge has 120 days to rule on a
       post sentence motion. Once the [c]ourt rules on the motion, an
(Footnote Continued Next Page)


                                           -6-
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PCRA hearing on June 7, 2017, but the certified record lacks a transcript

from the hearing. The trial court, on June 9, 2017, entered an order dated

June 7, 2017, stating in pertinent part, “Based upon the Stipulation of

Counsel and upon agreement of [Appellant],” . . . “the use of hearsay

evidence by the [SOAB] has no merit.” Order, 6/9/17. However, the trial

court noted that due to “extenuating circumstances,” a direct appeal was not

filed. Id. The trial court, therefore, reinstated Appellant’s appellate rights.

Appellant filed timely counseled notices of appeal, which we consolidated for

appeal on August 30, 2017. Both the trial court and Appellant complied with

Pa.R.A.P. 1925.

      Initially, we must resolve appellate counsel’s request to withdraw.

Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc).
(Footnote Continued) _______________________

      appellant then has 30 days to file a timely appeal.               In
      anticipation of the coming deadline for the [c]ourt to rule, we
      pulled the sealed documents relating to your case and
      discovered that there appears to have been a mix up regarding
      the post sentence motion. It appears that the motion was
      denied on April 15, 2016. However, the motion did not have the
      usual listing of parties served at the bottom. This normally
      indicates who would have received a copy of the ruling, but
      without the list[,] it is unclear as to who actually was served with
      a copy. I have attached a letter I received that further states
      that [defense counsel] did not receive a copy. [Defense counsel]
      indicated he was unaware of the ruling.

             Because of the date of ruling, a traditional appeal would
      now be untimely and your rights to appeal would be quashed. In
      light of this, I suggest that you file a post-trial motion/PCRA.

PCRA petition, 11/22/16, at supplement to page 7.



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See Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)

(“When faced with a purported Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.”).

     There are procedural and briefing requirements imposed upon an

attorney who seeks to withdraw on appeal.        The procedural mandates are

that counsel must:

     1) petition the court for leave to withdraw stating that, after
     making a conscientious examination of the record, counsel has
     determined that the appeal would be frivolous; 2) furnish a copy
     of the brief to [his client]; and 3) advise [his client] that he or
     she has the right to retain private counsel or raise additional
     arguments that the [client] deems worthy of the court’s
     attention.

Cartrette, 83 A.3d at 1032 (citation omitted).

     In addition, our Supreme Court, in Santiago, stated that an Anders

brief must:

     (1) provide a summary of the procedural history and facts, with
     citations to the record;

     (2) refer to anything in the record that counsel believes arguably
     supports the appeal;

     (3) set forth counsel’s conclusion that the appeal is frivolous;
     and

     (4) state counsel’s reasons for concluding that the appeal is
     frivolous. Counsel should articulate the relevant facts of record,
     controlling case law, and/or statutes on point that have led to
     the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361.


                                    -8-
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       Appellant’s counsel has complied with the first prong of Santiago by

providing a summary of the procedural history in the Anders brief.9 He has

satisfied the second prong by referring to any evidence in the record that he

believes arguably supports the appeal. Counsel also set forth his conclusion

that the appeal is frivolous and stated his reasons for that conclusion, with

appropriate support. Moreover, counsel filed a separate motion to withdraw

as counsel, wherein he stated that he examined the record and concluded

that the appeal is wholly frivolous.            Further, counsel has attempted to

identify   and    develop     any   issues     in    support   of   Appellant’s   appeal.

Additionally, counsel sent a letter to Appellant.              While counsel originally

failed to attach a copy of this letter to the withdrawal petition, following our

December 5, 2017 order directing same, counsel provided proper notification

to this Court on December 8, 2017, and attached a copy of the letter to

Appellant to his Anders brief. In the letter, counsel informed Appellant that

he had filed an Anders brief, and he apprised Appellant of his rights in light

of the motion to withdraw as counsel.               On December 18, 2017, Appellant

filed a response, which included an Application for Substitution of Appointed

Counsel, supra note 2, that we dismiss as moot, infra.
____________________________________________


9  Counsel has failed to report record citations in his procedural and factual
summary, in contravention of Pa.R.A.P. 2119(c). We admonish counsel that
it “is not this Court’s responsibility to comb through the record seeking the
factual underpinnings of [Appellant’s] claim.” Irwin Union Nat. Bank &
Tr. Co. v. Famous, 4 A.3d 1099, 1103 (Pa. Super. 2010) (citing
Commonwealth v. Mulholland, 702 A.2d 1027, 1034 n.5 (Pa. 1997)).



                                           -9-
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     Based on the foregoing, we conclude that counsel has met the

procedural    and   briefing   requirements    of   Anders   and   Santiago   for

withdrawal.    Therefore, we now have the responsibility to make an

independent judgment regarding whether the appeal is, in fact, wholly

frivolous. Commonwealth v. Tukhi, 149 A.3d 881, 886 (Pa. Super. 2016).

     In the Anders brief, counsel presents the following issues for our

review:

     (I) The reasons for sentencing in the statutory range as they
     relate to [Appellant’s] prior record were already factored into the
     Standard Range Guidelines and, as such, the court improperly
     enhanced an already enhanced sentence.

     II.    Documents obtained by the Probation Department
     concerning [Appellant’s] conviction in Ohio constituted ex parte
     research because the Probation Department employees are
     employees of the court.

     III. The sentencing court’s use of the ages of the victims as
     aggravating factors was improper as the ages constituted
     elements of the offense for the purpose of grading and, as such,
     the sentencing court enhanced an already enhanced sentence.

     IV. The sentencing court’s use of information from the [SVP]
     hearing and [SVP] Assessment violated the Confrontation Clause
     of the State and Federal Constitutions because the full panoply
     of standard objections, including hearsay, were unavailable
     during testimony of the SOAB witness.

     V. That certain of the reasons for aggravating the sentence of
     [Appellant] were no different than any similar criminal event by
     any similar criminal defendant.

     VI. That the sentencing court failed to take into account any
     mitigating circumstances when fashioning the sentence.

Anders Brief at 14–15, 17, 19–21 (footnote omitted).


                                      - 10 -
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        These issues present a challenge to the discretionary aspects of

Appellant’s sentence. Challenges to the discretionary aspects of sentencing

do not entitle an appellant to review as of right, and his challenge in this

regard is properly viewed as a petition for allowance of appeal. 42 Pa.C.S. §

9781(b); Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987);

Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super. 2000). An appellant

challenging the discretionary aspects of his sentence must satisfy a four-part

test. We evaluate: (1) whether Appellant filed a timely notice of appeal; (2)

whether Appellant preserved the issue at sentencing or in a motion to

reconsider and modify sentence; (3) whether Appellant’s brief includes a

concise statement of the reasons relied upon for allowance of appeal; and

(4) whether the concise statement raises a substantial question that the

sentence is appropriate under the Sentencing Code.       Commonwealth v.

Carrillo-Diaz, 64 A.3d 722, 725 (Pa. Super. 2013).        An appellant must

articulate the reasons the sentencing court’s actions violated the Sentencing

Code.     Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010);

Sierra, 752 A.2d at 912–913.

        In the instant case, Appellant filed a timely appeal, and the issues,

except Issue VI, were properly preserved in his post-sentence motion. The

Anders brief does not contain a concise statement of the reasons relied

upon for allowance of appeal with respect to the discretionary aspects of a

sentence pursuant to Pa.R.A.P. 2119(f).      The absence of such statement,


                                    - 11 -
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however, is not an impediment to our review of the discretionary-sentencing

claims.    See Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super.

2015) (noting where counsel has filed an Anders brief, “we do not consider

counsel’s failure to submit a Rule 2119(f) statement as precluding review of

whether Appellant’s issue is frivolous.”).

      Issue VI, that the trial court failed to consider mitigating factors, is

waived because Appellant failed to raise it in his post-sentence motion. Post

Sentence Reconsideration Motion, 4/14/16.            Even if not waived, the issue

does not raise a substantial question. A claim that the trial court failed to

consider mitigating factors in sentencing generally does not raise a

substantial question. Commonwealth v. Rhoades, 8 A.3d 912, 918–919

(Pa. Super. 2010). See Commonwealth v. Johnson, 961 A.2d 877, 880

(Pa. Super. 2008) (claim that court failed to consider mitigating factors in

imposing    consecutive   sentences    did     not   raise   substantial   question);

Commonwealth v. Bullock, 868 A.2d 516, 529 (Pa. Super. 2005) (where

no specific provision of sentencing code or fundamental norm is identified in

claim that court failed to consider mitigating factors, no substantial question

raised).    Furthermore, the issue lacks merit.           The court received and

reviewed the PSI report and entertained comment regarding Appellant’s

abusive childhood. N.T., 4/13/16, at 9. When a trial court receives a PSI

report, we assume the court was aware of the relevant information




                                      - 12 -
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regarding the defendant’s character and weighed it with other relevant

mitigating factors. Rhoades, 8 A.3d at 919.

        Issue II, while raising a substantial question, Commonwealth v.

Macias, 968 A.2d 773, 776 (Pa. Super. 2009) (allegation that the court

considered an impermissible sentencing factor raises a substantial question),

is waived as well.       Appellant suggests the trial court’s reliance on the

Probation Department’s use of records from Ohio substantiating Appellant’s

guilty pleas to two separate offenses of Gross Sexual Imposition involving

minor children, in that they formed the basis for Appellant’s prior record

score, was error.       The case relied upon by counsel, Commonwealth v.

McClure, 172 A.3d 668 (Pa. Super. 2017), is not relevant and is

distinguishable because it involved ex parte communication between the

court and counsel and did not involve documents utilized in sentencing.

More importantly, however, defense counsel asserted at sentencing that the

prior record score of two, as determined by the Probation Department in

reliance on the Pennsylvania equivalent to the Ohio convictions, was correct.

N.T.,   4/13/16,   at    7.   Counsel   never   asserted   in   his   presentence

memorandum or at the sentencing hearing that the Probation Department’s

reliance on the Ohio indictment or Ohio sentencing order was improper.

Indeed, the asserted reason for claiming such improper reliance was to

suggest that the prior record score should have been zero not two,

Appellant’s Sentencing Memorandum, 4/5/16, a conclusion that Appellant


                                     - 13 -
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ultimately retracted at the sentencing hearing. N.T., 4/13/16, at 7. Finally,

the trial court’s June 9, 2017 order confirmed Appellant’s agreement to the

use of the Ohio documents. Order, 6/9/17. Thus, this claim is waived.

       We address issues I, III, and V together as they are all related.10 The

issues are inartfully worded and lacking in clarity. Nevertheless, we discern

from our review of the Anders brief that counsel is alleging that the trial

court sentenced Appellant outside of the Sentencing Guidelines to the

statutory maximum by improperly relying on factors that already were

considered by the Guidelines. Anders brief at 14, 17, 20. This Court has

held that claims of a sentencing court imposing a sentence outside of the

standard guidelines without stating adequate reasons on the record presents

a substantial question. Commonwealth v. Antidormi, 84 A.3d 736, 759

(Pa. Super. 2014) (citing Commonwealth v. Robinson, 931 A.2d 15, 26

(Pa. Super. 2007)).         The factors Appellant underscores are the court’s

references to Appellant’s prior criminal record, the ages of the child victims,

and the fact that Appellant was in a position of trust as a caregiver when he

committed the crimes. Id.

       We note our standard of review:

             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
____________________________________________


10 We note that Issue IV is moot in light of our disposition regarding
Appellant’s SVP status and is discussed infra.



                                          - 14 -
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       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. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015)

(internal quotation marks and citations omitted).     A sentencing 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). “In particular, the court should refer to the defendant’s

prior criminal record, his age, personal characteristics and his potential for

rehabilitation.” Id.

       If a court imposes a sentence outside of the Sentencing Guidelines,

which are not mandatory, Commonwealth v. Walls, 926 A.2d 957, 964

(Pa. 2007), “it must provide a written statement setting forth the reasons for

the deviation[,] and the failure to do so is grounds for resentencing.” Id. at

963.    Moreover, “the central focus of substantive appellate review with

respect to a sentence outside of the guidelines is whether the sentence is

‘unreasonable.’” Id. As our Supreme Court explained, our examination of a

sentence is deferential because the “sentencing court is in the best position

to determine the proper penalty for a particular offense based upon an

evaluation of the individual circumstances before it.”   Id. at 961 (citation

and quotation marks omitted).        “Simply stated, the sentencing court

sentences flesh-and-blood defendants and the nuances of sentencing


                                    - 15 -
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decisions are difficult to gauge from the cold transcript used upon appellate

review.” Id.

     Pursuant to the Sentencing Code, we may vacate a sentence if we find

1) that the court intended to sentence within the guidelines but “applied the

guidelines erroneously;” 2) a sentence was imposed within the guidelines

“but the case involves circumstances where the application of the guidelines

would be clearly unreasonable;” or 3) “the sentencing court sentenced

outside the sentencing guidelines and the sentence is unreasonable.”      42

Pa.C.S. § 9781(c).   “In all other cases the appellate court shall affirm the

sentence imposed by the sentencing court.” Id.

     Here, the record indicates that the sentences imposed were outside of

the Sentencing Guidelines.     Docket Number 207-2015 Guideline Sentence

Form, 4/14/16; Docket Number 434-2015 Guideline Sentence Form,

4/14/16. We conclude, however, that the sentences were not unreasonable.

     We recently reiterated:

            In [Commonwealth v.] Shugars, [895 A.2d 1270, 1274–
     1275 (Pa. Super. 2006),] we explained that while “it is
     impermissible for a court to consider factors already included
     within the sentencing guidelines as the sole reason for increasing
     or decreasing a sentence to the aggravated or mitigated range,”
     a trial court may “use prior conviction history and other factors
     already included in the guidelines if, they are used to
     supplement other extraneous sentencing information.” 895 A.2d
     at 1275 (quoting Commonwealth v. Simpson, 829 A.2d 334,
     339 (Pa. Super. 2003)) (emphasis in original).

Commonwealth v. Rush, 162 A.3d 530, 545–546 (Pa. Super. 2017),

appeal denied, 170 A.3d 1049 (Pa. 2017).

                                    - 16 -
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      That the trial court mentioned Appellant’s prior criminal history or

noted the fact that Appellant was in a position of trust when he committed

the crimes does not demonstrate that the court “double counted” sentencing

factors.   The trial court considered the sentencing factors set forth in 42

Pa.C.S. § 9721(b), including the impact on the victims’ lives, the threat

Appellant posed to the community, the likelihood Appellant would re-offend,

and Appellant’s lack of remorse.    N.T., 4/13/16, at 17–18.    Therefore, we

conclude that the reference to the ages of the victims and Appellant’s

position of trust were just two factors among several that led to the

sentences outside of the Guidelines. Shugars, 895 A.2d at 1275. The trial

court deviated from the Guidelines and imposed sentences that took into

account “the protection of the public, the gravity of the offense as it relates

to the impact on the life of the . . . community, and the rehabilitative needs

of the defendant.” 42 Pa.C.S. § 9721(b); Commonwealth v. Sheller, 961

A.2d 187, 190 (Pa. Super. 2008). As such, we reject Appellant’s claims and

find that the sentences imposed were not unreasonable.

      There remains the matter of Appellant’s Application for Change of

Appointed Counsel and the issues Appellant asserts in support of it.       We

have addressed the propriety of Appellant’s sentence and the court’s

reference to the Ohio convictions, which are two of the three reasons

identified by Appellant in seeking substituted counsel.          Response to

Counsel’s Anders Brief and Application for Change of Appointed Counsel,


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12/18/17, at unnumbered 1–2. The third reason is Appellant’s claim that his

SVP designation is unconstitutional in light of Commonwealth v. Muniz,

135 A.3d 178 (Pa. 2017). For the following reasons, we reverse the order

finding that Appellant is an SVP and remand for the trial court to advise

Appellant of his obligations under SORNA.

     Applying Muniz, 164 A.3d 1189, Apprendi v. New Jersey, 530 U.S.

466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013), in

Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), this Court

found that 42 Pa.C.S. § 9799.24(e)(3) of SORNA is unconstitutional. As a

result, we held that “trial courts cannot designate convicted defendants SVPs

(nor may they hold SVP hearings) until our General Assembly enacts a

constitutional designation mechanism.”         Butler, 173 A.3d at 1218.      Here,

Appellant was determined to be an SVP under the now unconstitutional SVP

mechanism. 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 42 Pa.C.S. § 9799.23. Id.

     We have independently reviewed the record in order to determine if

counsel’s assessment concerning the frivolous nature of the present appeal

is correct. Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.

2015)   (after   determining   that   counsel      has   satisfied   the   technical

requirements of Anders and Santiago, this Court must conduct an

independent review of the record to determine if there are additional, non-


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frivolous issues overlooked by counsel). Following our independent review

of the record, we conclude that counsel overlooked the SVP issue that has

now resulted in a remand to the trial court. Accordingly, because the appeal

includes a non-frivolous issue, we cannot permit counsel to withdraw at this

time.    See Commonwealth v. Orellana, 86 A.3d 877, 882 (Pa. Super.

2014) (“Anders withdrawal is only permissible in an appeal consisting solely

of frivolous issues.”). Therefore, we deny counsel’s petition to withdraw.

        Petition to Withdraw as Counsel denied.    Application for Change of

Appointed Counsel dismissed as moot. April 14, 2016 SVP order reversed.

Judgments of sentence affirmed in all other respects.     Case remanded for

proceedings consistent with this memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/8/2018




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