J-S04021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA        :   IN THE SUPERIOR COURT OF
                                     :        PENNSYLVANIA
                                     :
              v.                     :
                                     :
                                     :
 VINCENT ANTONELLO CLARK             :
                                     :
                   Appellant         :   No. 343 MDA 2018

         Appeal from the Judgment of Sentence January 4, 2018
           In the Court of Common Pleas of Wyoming County
          Criminal Division at No(s): CP-66-CR-0000490-2009

 COMMONWEALTH OF PENNSYLVANIA        :   IN THE SUPERIOR COURT OF
                                     :        PENNSYLVANIA
                                     :
              v.                     :
                                     :
                                     :
 VINCENT ANTONELLO CLARK             :
                                     :
                   Appellant         :   No. 344 MDA 2018

         Appeal from the Judgment of Sentence January 4, 2018
           In the Court of Common Pleas of Wyoming County
          Criminal Division at No(s): CP-66-CR-0000491-2009

 COMMONWEALTH OF PENNSYLVANIA        :   IN THE SUPERIOR COURT OF
                                     :        PENNSYLVANIA
                                     :
              v.                     :
                                     :
                                     :
 VINCENT ANTONELLO CLARK             :
                                     :
                   Appellant         :   No. 345 MDA 2018

         Appeal from the Judgment of Sentence January 4, 2018
           In the Court of Common Pleas of Wyoming County
          Criminal Division at No(s): CP-66-CR-0000492-2009
J-S04021-19


BEFORE:      SHOGAN, J., OTT, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                                  FILED JUNE 10, 2019

        Vincent Antonello Clark appeals from the judgment of sentence imposed

January 4, 2018, in the Wyoming County Court of Common Pleas. In these

consolidated cases, the trial court resentenced Clark to an aggregate term of

600 to 1200 months’ imprisonment, after Clark was granted post-conviction

collateral relief from his original sentence based upon the imposition of, now

illegal, mandatory minimum terms. On appeal, Clark argues the trial court

relied on impermissible factors during the resentencing hearing, failed to order

an updated presentence investigation report, declined to consider Clark’s

progress while incarcerated, and imposed a manifestly excessive sentence.

For the reasons below, we are constrained, once again, to vacate the

judgment of sentence and remand for resentencing.

        The facts underlying Clark’s convictions are well-known to the parties

and need not be detailed herein. In summary, at Docket No. 2009-CR-491,

Clark was charged with three counts each of rape of a child, involuntary

deviate sexual intercourse (“IDSI”), aggravated indecent assault, statutory

sexual assault, indecent assault, corruption of minors, and incest,1 for the

repeated sexual assault of his three minor children P.C., W.C., and S.C. - all

of whom were under the age of eight when the abuse occurred. Clark was
____________________________________________


   Former Justice specially assigned to the Superior Court.

1 See 18 Pa.C.S. §§ 3121(c), 3123(b), 3125(b), 3122.1, 3126(a)(7),
6301(a)(1), and 4302, respectively.


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also charged at Docket Nos. 2009-CR-490 and 2009-CR-492, with rape of a

child and related offenses for the sexual abuse of his minor nieces, M.B. and

S.N., both of whom were under the age of 11 at the time of the assaults. In

each case, the minor victims alleged the abuse began in January of 2006, and

continued until January of 2009.2

       The three dockets were consolidated for a jury trial, commencing on

December 12, 2011. On December 16, 2011, the jury found Clark guilty of

all counts. Thereafter, on April 3, 2012, the trial court determined Clark met

the criteria for classification as a sexually violent predator (“SVP”) under

Megan’s Law, the predecessor to Pennsylvania’s Sexual Offender Registration

and Notification Act (“SORNA”),3 and imposed an aggregate sentence of 600

to 1200 months’ imprisonment. Specifically, the trial court sentenced Clark

to mandatory minimum terms of 120 to 240 months’ imprisonment on each


____________________________________________


2The trial court explained Clark “was a truck driver that often took his children
with him on his overnight runs, where many sexual assaults occurred.” Trial
Court Opinion, 4/6/2018, at 2.

3 See 42 Pa.C.S. §§ 9799.10-9799.41, amended and replaced by 2018, Feb.
21, P.L. 27, No. 10, § 19, immediately effective. Reenacted 2018, June 12,
P.L. 140, No. 29, § 14, immediately effective. 42 Pa.C.S. §§ 9799.51-9799.75
(“SORNA II”).

       As noted above, Clark was sentenced under SORNA’s predecessor,
commonly known as Megan’s Law III, 42 Pa.C.S. §§ 9791-9799.9 (expired),
which was in effect when the crimes at issue occurred. On December 20,
2012, SORNA replaced Megan’s Law III. See Commonwealth v. Muniz, 164
A.3d 1189, 1196-1198 (Pa. 2017) (history of Pennsylvania’s sex offender laws
prior to SORNA).


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of the five counts of rape of a child (one for each victim) pursuant to 42 Pa.C.S.

§ 9718, and ordered those sentences to run consecutively. The court imposed

concurrent sentences on the remaining convictions.           This Court affirmed

Clark’s judgment of sentence on direct appeal, and the Pennsylvania Supreme

Court subsequently denied his petition for review. See Commonwealth v.

Clark, 107 A.3d 218 (Pa. Super. 2014) (unpublished memorandum), appeal

denied, 109 A.3d 678 (Pa. 2015).

       On July 7, 2015, Clark filed a timely, pro se petition for collateral relief

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.

Counsel was appointed and filed an amended petition on March 7, 2016,

asserting, inter alia, the mandatory minimum sentences imposed on Clark’s

convictions were illegal based upon Alleyne v. United States, 113 S.Ct. 2151

(U.S. 2013), and Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)

(en banc). A PCRA hearing was conducted on April 27, 2016, at which time,

the Commonwealth requested the PCRA court stay its ruling pending the

Pennsylvania Supreme Court’s decision in Commonwealth v. Wolfe, 140

A.3d   651   (Pa.   2016),   which   ultimately   found   Section   9718    to   be

unconstitutional. Clark filed a second amended PCRA petition on March 10,

2017, citing the Supreme Court’s decision in Wolfe. On August 28, 2017, the

PCRA court granted Clark’s petition in part, and remanded for a new




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sentencing hearing.         The court denied relief as to Clark’s remaining

ineffectiveness claims.4

       On January 4, 2018, the trial court resentenced Clark to an aggregate

term of 600 to 1200 months’ imprisonment. Once again, the court imposed

five consecutive terms of 120 to 240 months’ imprisonment for each count of

rape of a child, sentences that fell within the standard range of the guidelines.

At the hearing, the court provided the following reasons for the sentence: “the

serious nature of the offense, the defendant violated the sacred trust of an

adult and child[,] and this sentence is within the standard range guidelines.”

N.T., 2/23/2018, at 15.           The trial court imposed concurrent terms of

imprisonment on each of Clark’s five convictions of IDSI (120 to 20 months),

and aggravated indecent assault (66 to 240 months). Clark filed a timely




____________________________________________


4  Clark also appealed the denial of PCRA relief with respect to his
ineffectiveness claims. That appeal is docketed before this Court at No. 1465
MDA 2017.




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post-sentence motion seeking reconsideration of his sentence, which the court

denied on January 30, 2018. This timely appeal followed.5, 6

       Clark’s sole issue on appeal is a challenge to the discretionary aspects

of his sentence.     Such a claim is not appealable as of right, but “must be

considered a petition for permission to appeal.” Commonwealth v. Best,

120 A.3d 329, 348 (Pa. Super. 2015) (quotation omitted). To reach the merits

of a discretionary issue, this Court must determine:

       (1) whether the appeal is timely; (2) whether Appellant preserved
       [the] issue; (3) whether Appellant’s brief includes a concise
       statement of the reasons relied upon for allowance of appeal with
       respect to the discretionary aspects of sentence; and (4) whether
       the concise statement raises a substantial question that the
       sentence is appropriate under the sentencing code.


____________________________________________


5 On February 16, 2018, the trial court ordered Clark to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Although Clark’s counsel complied with the court’s directive, he filed a concise
statement on March 12, 2018, three days late. Nevertheless, this Court has
held that “where the trial court addresses the issues raised in an untimely Rule
1925(b) statement, we need not remand but may address the issues on their
merits.” Commonwealth v. Brown, 145 A.3d 184, 186 (Pa. Super. 2016),
appeal denied, 165 A.3d 892 (Pa. 2017). See also Commonwealth v.
Boniella, 158 A.3d 162, 164 (Pa. Super. 2017) (explaining the decision in
Brown applies to “counseled defendants … because counsel can be considered
to be ineffective per se for failing to file a timely Rule 1925(b) statement.”).
Accordingly, because the trial court in the present case filed an opinion
addressing the issue raised on appeal, we decline to find waiver here.

6 We note Clark properly filed three separate notices of appeal in this case,
one at each docket number. See Commonwealth v. Walker, 185 A.3d 969,
971, 977 (Pa. 2018) (holding that “where a single order resolves issues arising
on more than one docket, separate notices of appeal must be filed for each
case[,]” and “[t]he failure to do so requires the appellate court to quash the
appeal.”).

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Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).

      Clark complied with the procedural requirements for this appeal by filing

a timely post-sentence motion for modification of sentence, and subsequent

notice of appeal, and by including in his appellate brief a statement of reasons

relied upon for appeal pursuant to Commonwealth v. Tuladziecki, 522 A.2d

17 (Pa. 1987), and Pa.R.A.P. 2119(f). Therefore, we must determine whether

he has raised a substantial question justifying our review.

      A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted). Here, Clark contends the trial court abused its discretion

and imposed a “manifestly excessive” sentence, when it failed to consider his

background and rehabilitative needs, but rather, focused solely on the

egregiousness of his crimes. Clark’s Brief at 17. An allegation that the trial

court failed to consider the “relevant sentencing criteria” set forth in Section

9721(b) raises a substantial question for our review.      Commonwealth v.

Riggs, 63 A.3d 780, 786 (Pa. Super. 2012), appeal denied, 63 A.3d 776 (Pa.

2013). Similarly, “a claim the trial court focused solely on the nature of the

offense … presents a substantial question.” Commonwealth v. Clarke, 70


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A.3d 1281, 1287 (Pa. Super. 2013), appeal denied, 85 A.3d 481 (Pa. 2014).

Accordingly, we find Clark has raised a substantial question for our review.

      Preliminarily, we emphasize “[s]entencing 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.”        Commonwealth v.

Bullock, 170 A.3d 1109, 1123 (Pa. Super. 2017) (citation omitted), appeal

denied, 184 A.3d 944 (Pa. 2018).       When considering a challenge to the

discretionary aspects of a sentence, we must bear in mind the following:

      “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).

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).

Furthermore, this Court should vacate a sentence imposed within the standard


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guidelines range only if we find “the case involves circumstances where the

application of the guidelines would be clearly unreasonable.” 42 Pa.C.S. §

9781(c)(2).

       Here, Clark first insists the trial court did not consider his characteristics

and rehabilitative needs at his resentencing hearing. See Clark’s Brief at 20-

21.    He explains that there was no “reference to the PSI, other than to

acknowledge that the PSI had not been updated.” Id. at 20. Further, he

maintains his “past history and conduct while incarcerated, aside from the

present convictions, demonstrates that he can abide by rules.” Id. at 21.

       First, to the extent Clark implies the trial court abused its discretion in

not ordering a revised PSI, we disagree. A PSI was prepared prior to Clark’s

original sentencing hearing, and the trial court explicitly stated that it had

reviewed the document prior to that hearing. See N.T., 9/28/2012, at 7. The

same judge resentenced Clark on February 23, 2018. The court noted the PSI

had not been updated, but stated it would “take judicial notice of argument

and testimony at the time of [the original] sentencing[.]” N.T., 2/23/2018, at

5.    There is no indication Clark asked for an updated PSI, and the court

permitted Clark to testify regarding his progress in prison since the time of

the original sentencing hearing. See id. at 8-13.

       However, our review of the record reveals Clark correctly asserts the

trial court did not consider his rehabilitative needs, and specifically his

progress while incarcerated, before imposing sentence. Although, as noted


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above, Clark testified regarding his accomplishments during his time in prison,

the trial court made it clear in its opinion that it did not consider that

information before imposing sentence. The court opined:

            At the time of resentencing [Clark] testified to what he has
      accomplished during incarceration. Defen[se] Counsel believes
      these are mitigating factors which this Court should have taken
      into consideration. However, resentencing is not an opportunity
      for this Court to look at mitigating factors that were not before
      this Court at the time of original sentencing. [Clark’s] sentencing
      was based on the extreme nature of the crimes and the number
      of children family member victims and not the treatment nor
      progress [Clark] may have completed while incarcerated.

            Due to the heinous crimes of [Clark] raping and sexually
      assaulting minor children over a continuous period of time makes
      the resentence appropriate. The progress [Clark] makes while
      incarcerated is for the parole board to take into consideration at
      the time of [Clark’s] parole, it is not for this Court to take into
      consideration at the time of resentencing.

Trial Court Opinion, 4/6/2018, at 12.

      In Commonwealth v. Losch, 535 A.2d 115 (Pa. Super. 1987), a panel

of this Court held a trial court’s “intentional failure” to consider evidence at

resentencing of a defendant’s good behavior while in prison was reversible

error. Id. at 121. The panel explained:

      Reimposing a judgment of sentence should not be a mechanical
      exercise. What is at stake in a sentencing decision is nothing less
      than the liberty of the individual and the safety of the public. If
      the trial judge ignores the defendant’s conduct during the months
      preceding the final sentencing hearing, he may reach an
      inaccurate determination as to whether the defendant is a danger
      to society or is capable of being a productive and law-abiding
      citizen.

Id. at 122. Indeed, the panel stated evidence of the defendant’s good conduct

“may reflect his potential for rehabilitation.”   Id.   Accordingly, the panel


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concluded a resentencing judge “may not refuse to consider any relevant

defense evidence concerning [the defendant’s] conduct since the prior

sentencing hearing.”    Id. at 123.     Consequently, the panel vacated the

judgment of sentence, and remanded for another sentencing hearing. See

id. However, the panel cautioned:

      [O]ur decision is limited in scope. We hold that the trial judge
      must consider evidence of appellant’s good conduct in prison. Yet,
      the trial judge is also free to consider a broad range of other
      information. He may review all of the testimony and exhibits
      introduced at both of appellant’s prior sentencing hearings. He
      may also allow the prosecution to introduce evidence relating to
      appellant’s bad conduct, if any, since the time that judgment of
      sentence was last imposed. Appellant’s favorable adjustment to
      life in the penitentiary is only one of several variables upon which
      the trial judge should focus; there is no right to have this one
      factor take precedence over all others. In the end, the trial court
      may conclude that appellant’s new evidence pales in significance
      when compared with the other aspects of his case including the
      gravity of his offenses.

Id. (internal citation omitted).

      Here, the trial court explicitly stated in its opinion that it did not (and

could not) consider evidence of Clark’s favorable progress while in prison as a

mitigating factor at his resentencing hearing.       See Trial Court Opinion,

4/6/2018, at 12. This was reversible error pursuant to Losch. Therefore,

because we agree the trial court abused its discretion in refusing to consider

Clark’s progress in prison since his last sentencing hearing, we are constrained

to vacate the judgment of sentence and remand for resentencing.           At the

resentencing hearing, the trial court should consider any mitigating evidence

Clark presents, with a particular focus on the sentencing factors set forth in


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42 Pa.C.S. § 9721(b).7         See id. (when imposing sentence, court should

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

to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant”).

       We are also compelled to address another issue sua sponte. As noted

above, Clark was designated as an SVP at the time of his original sentencing.

Although he has not challenged this designation on appeal, we may consider

claims affecting the legality of a sentence sua sponte. See Commonwealth

v. Butler, 173 A.3d 1212, 1214 (Pa. Super. 2017), appeal granted, 190 A.3d

581 (Pa. 2018).

       In Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), the

Pennsylvania Supreme Court held 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. Thereafter, in October of 2017, a panel of this Court, in Butler,

supra, relying upon Muniz, supra, concluded SORNA’s statutory mechanism

for designating a defendant as an SVP, as set forth in 42 Pa.C.S. §

9799.24(e)(3), was “constitutionally flawed” because it permits a trial court

to make the determination based upon clear and convincing evidence. Id. at


____________________________________________


7 Because of our disposition, we need not consider Clark’s second basis for
challenging the discretionary aspects of his sentence.




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1218.     Accordingly, the Butler Court held “trial courts may no longer

designate convicted defendants as SVPs, nor may they hold SVP hearings,

until our General Assembly enacts a constitutional designation mechanism.”8

Id.   In line with its holding, the panel vacated the order designating the

defendant as an SVP, and remanded the case to the trial court to determine

his proper registration period pursuant to 42 Pa.C.S. §§ 9799.14 and 9799.15.

See id.

        Recently, in Commonwealth v. Lippincott, ___ A.3d ___, 2019 PA

Super 118 (Apr. 15, 2019) (en banc), an en banc panel of this Court vacated

a defendant’s SVP status because the trial court made the designation

“without making the required factual findings beyond a reasonable doubt.”

Id. at *9.     Like Clark, the defendant in Lippincott committed his sexual

crimes prior to the enactment of SORNA. See id. at *6. Therefore, we are

constrained to vacate Clark’s SVP designation as well. Upon resentencing, we




____________________________________________


8 As noted above, the Pennsylvania Supreme Court granted allowance of
appeal in Butler on the following claim:

        Whether the Superior Court of Pennsylvania erred in vacating the
        trial court’s Order finding [Respondent] to be [a Sexually Violent
        Predator      (“SVP”)]    by   extrapolating  the   decision    in
        [Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189
        (2017),]     to   declare    SVP    hearings  and    designations
        unconstitutional under 42 Pa.C.S. § 9799.24(e)(3).

Commonwealth v. Butler, 190 A.3d 581, 582 (Pa. 2018).             At this time,
however, the Butler decision is controlling.


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direct the trial court to determine the appropriate registration and reporting

requirements for Clark.

      Judgment of sentence and SVP designation vacated. Case remanded

for resentencing consistent with this decision. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/10/2019




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