J-S73044-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
              Appellee                     :
                                           :
      v.                                   :
                                           :
TOMAS JAVIER QUINTANILLA-PINEDA,           :
                                           :
             Appellant                     :   No. 736 MDA 2017

           Appeal from the Judgment of Sentence February 27, 2017
                in the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0004448-2016

BEFORE:      OLSON, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                  FILED JANUARY 23, 2018

      Tomas Javier Quintanilla-Pineda (Appellant) appeals from his February

27, 2017 judgment of sentence of 13 to 26 years’ incarceration following his

nolo contendere plea to rape, involuntary deviate sexual intercourse (IDSI),

and theft by unlawful taking.      After review, we vacate the portion of

Appellant’s sentence requiring him to comply with SORNA, affirm in all other

respects, and remand for the sole purpose of having the trial court issue the

appropriate notice under 42 Pa.C.S. § 9795.3 as to Appellant’s registration

requirements.

      The Commonwealth offered the following recitation of facts during

Appellant’s plea hearing.

      [O]n December 17th of 2011, the victim… entered her friend’s
      apartment located in West York across from the Reliance Cafe.
      Her friend left to go meet her husband at a bar across the street.
      At that point the victim observed [Appellant] at the top of the

*Retired Senior Judge assigned to the Superior Court.
J-S73044-17


     stairs on the second floor. She went up into the bathroom on the
     third floor. While she [was] in the bathroom on the third floor,
     [Appellant] came up behind her, grabbed her by the throat, threw
     her to the ground, [and] slammed her forehead on the floor. As
     she tried to get away, he pulled her back down, [and] pulled her
     pants down. … [Appellant] then anally penetrated her with his
     penis and then penetrated her vagina and then back to her anus.

           During the assault, the victim called 911 on her cell phone.
     There [was] a recording of the assault occurring that was recorded
     by 911. While the 911 [dispatcher asked] for [the victim’s]
     address, [Appellant] had his hand covering [the victim’s] mouth
     so that she [was] unable to speak.

           … [Bill Imler] would testify that he returned home to this
     apartment. When he return[ed] home, he [came] up the stairs to
     this assault occurring. He confronted [Appellant], who [sic] he
     recognized. At that point [Appellant] took off with the victim’s cell
     phone. You are able to hear in the 911 call someone running, and
     then that call is disconnected.

           Also, witness Lorraine Miller… would testify that [Appellant]
     was in her apartment that night, that [Appellant] worked at
     Reliance Cafe, and she would be able to identify him.

           After this report came in, law enforcement … went to
     Reliance Cafe, searched for [Appellant and were] able to obtain
     [Appellant’s] information from Reliance Cafe. They [did] an
     exhaustive search of York in order to find [Appellant]. They
     [were] unable to do that. However, charges [were] filed … .

           Also, [the Commonwealth] would [have presented] at trial
     a SAFE [Sexual Assault Forensic Examiner] exam [where]
     evidence was collected, sent up to PSP [Pennsylvania State
     Police]. DNA evidence was sent up to them.

           On January 22nd of 2013, there was a CODIS [Combined
     DNA Index System] hit on the DNA that was collected from the
     victim. It came back to [Appellant], who was located in California
     at that time. …

          [Appellant was] eventually extradited back to Pennsylvania.
     Another sample [was] obtained from [Appellant]. That [was] sent



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      up to PSP, and on July 6th of this year, [the Commonwealth] did
      receive the DNA analysis from PSP that did confirm that … the
      semen sample that was collected from our victim was a
      combination of her DNA as well as [Appellant’s].

N.T., 11/23/2016, at 3-5.

      On November 23, 2016, Appellant pled nolo contendere as indicated

above. Appellant’s plea was accepted by the trial court, and on February 27,

2017, Appellant was sentenced to 6½ to 13 years of incarceration for rape;

6½ to 13 years of incarceration for IDSI, consecutive to the sentence of

incarceration for rape; and 12 months of probation for theft, concurrent to the

sentences of incarceration. At the time Appellant pled nolo contendere, rape

and IDSI were enumerated Tier III offenses under SORNA, and required

lifetime registration as a sexual offender. 42 Pa.C.S. § 9799.14(d); 42 Pa.C.S.

§ 9799.15(a)(3). At sentencing, Appellant signed a Megan’s Law Registration

Form, stating that he understood his registration requirements.

      Appellant filed a post-sentence motion on March 2, 2017. The trial court

held a hearing on April 3, 2017, and denied Appellant’s post-sentence motion

that same day. Appellant timely filed a notice of appeal. Both Appellant and

the trial court have complied with the mandates of Pa.R.A.P. 1925.

      Appellant presents the following questions for our consideration.

      [1] Whether the [trial] court improperly gave [Appellant] two
      aggravated-range sentences, to be served consecutively, based
      on conduct inherent in the offenses: the violence inflicted in the
      course of rape by forcible compulsion and IDSI by forcible
      compulsion.




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     [2] Whether SORNA, or any other sex offender registration
     scheme, can legally apply to [Appellant] in light of the
     Pennsylvania Supreme Court’s holding in Commonwealth v.
     Muniz that retroactive application of SORNA’s registration
     provisions violates the ex post facto clauses of the United States
     and Pennsylvania Constitutions.

Appellant’s Brief at 4 (suggested answers omitted).

     Appellant’s first claim implicates the discretionary aspects of his

sentence. We consider this claim mindful of the following.

            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 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.

                                       ***

           When imposing sentence, a court is required to consider the
     particular circumstances of the offense and the character of the
     defendant. In considering these factors, the court should refer to
     the defendant’s prior criminal record, age, personal characteristics
     and potential for rehabilitation.


Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)

(internal citations and quotation marks omitted).

     An appellant is not entitled to the review of challenges to the

discretionary aspects of a sentence as of right.        Rather, an appellant

challenging the discretionary aspects of his sentence must invoke this Court’s




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jurisdiction. We determine whether the appellant has invoked our jurisdiction

by considering the following four factors:

      (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.[] § 9781(b).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

      Here, Appellant filed a notice of appeal after preserving the issue by

filing a motion to modify sentence, and his brief contains a statement pursuant

to Pa.R.A.P. 2119(f). We thus consider whether Appellant raised a substantial

question that his sentence is inappropriate.

      In his Pa.R.A.P. 2119(f) statement, Appellant claims that his sentence

raises a substantial question because the trial court “considered factors

already included in the guidelines.”         Appellant’s Brief at 13 (quoting

Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)).

Specifically, Appellant alleges that the trial court imposed “two aggravated-

range terms of incarceration due to the violence he inflicted—a factor inherent

in both offenses.” Id. A claim that a trial court relied on impermissible factors

in fashioning a sentence raises a substantial question. Commonwealth v.

Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006). Thus, we conclude that




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Appellant has presented a substantial question for our review, and proceed to

evaluate Appellant’s sentencing argument on its merits.

     Here, Appellant was sentenced to two consecutive sentences in the

aggravated range of the sentencing guidelines for rape and IDSI.           A

sentencing court “has wide discretion in sentencing and can, on the

appropriate record and for the appropriate reasons, consider any legal factor

in imposing a sentence in the aggravated range.” Id. at 1275.

            Since Appellant was sentenced within the guidelines, we
     may reverse only if application of the guidelines is clearly
     unreasonable. The [Commonwealth v.] Walls[, 926 A.2d 957
     (Pa. 2007)] Court noted that the term “unreasonable,” while not
     defined in the Sentencing Code, generally means a decision that
     is either irrational or not guided by sound judgment. The Court
     continued that the context of the term’s use in section 9781
     indicates    that    the   legislature  intended  the   concept
     of unreasonableness to be inherently a circumstance-dependent
     concept that is flexible in understanding and lacking precise
     definition.

           The Supreme Court held that a sentence can be deemed
     unreasonable after review of the four elements contained in
     section 9781(d) or if the sentencing court failed to take into
     account the factors outlined in 42 Pa.C.S. § 9721(b). [Subs]ection
     9721(b) states in pertinent part:

           [T]he court shall follow the general principle that
           the sentence imposed should call for confinement that
           is consistent with 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. The court shall
           also consider any guidelines for sentencing adopted
           by the Pennsylvania Commission on Sentencing[.]

           In conclusion, our Supreme Court in Walls stated that when
     the   proper standard of review is utilized, rejection of



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      a sentencing court’s imposition of sentence on unreasonableness
      grounds [should] occur infrequently, whether the sentence is
      above or below the guidelines ranges.

Commonwealth v. Macias, 968 A.2d 773, 777 (Pa. Super. 2009) (some

citations and quotation marks omitted). In reviewing the record on appeal,

this Court considers:

      (1) The nature and circumstances of the offense and the history
      and characteristics of the defendant.

      (2) The opportunity of the sentencing court to observe the
      defendant, including any presentence investigation.

      (3) The findings upon which the sentence was based.

      (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

      Here, the standard range of the guidelines for both rape and IDSI was

4 to 5½ years of incarceration.     N.T., 2/27/2017, at 8.    Appellant was

sentenced in the aggravated range at both counts to 6½ to 13 years of

incarceration. The trial court reviewed the presentence investigation report,

and, thus, “we presume that the court properly considered and weighed all

relevant factors in fashioning [Appellant’s] sentence.”   Commonwealth v.

Baker, 72 A.3d 652, 663 (Pa. Super. 2013). Further, the record reveals that

the trial court was cognizant of the sentence it was imposing. At sentencing,

the trial court set forth its reasoning for imposing a sentence within the

aggravated guideline range.




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           The nature of the offense, you know, followed somebody
     home and went into the house where [she was], attending to their
     nightly duties, and you violently raped [her]. I’m not so sure there
     is such a thing as a friendly rape. Quite frankly, in my mind all
     rapes are violent. But this went beyond your means to achieve
     your goal.

           I agree, but for the introduction of the third person in the
     household, the rape would have continued. I can’t speculate on
     what you did, but I cannot take any exception to the victim saying
     that her fear was that she was going to be killed. …

          So I do believe that a sentence in the aggravated range is
     appropriate because of the violence of the offense.

N.T., 2/27/2017, at 12.

     Appellant argues that the violence was already factored into the

sentencing guidelines because he was convicted of rape and IDSI by forcible

compulsion, and thus the trial court erred in basing his aggravated range

sentence on the violence inflicted.   However, violence is not necessary for

forcible compulsion.

            It is well-established that in order to prove the
     forcible compulsion component, the Commonwealth must
     establish, beyond a reasonable doubt, that the defendant used
     either physical force, a threat of physical force, or psychological
     coercion, since the mere showing of a lack of consent does not
     support a conviction for rape ... by forcible compulsion. [O]ur
     Supreme Court stated that forcible compulsion includes not only
     physical force or violence, but also moral, psychological or
     intellectual force used to compel a person to engage in sexual
     intercourse against that person’s will. Further, the degree of force
     required to constitute rape is relative and depends on the facts
     and particular circumstances of a given case.

Commonwealth v. Eckrote, 12 A.3d 383, 387 (Pa. Super. 2010) (citations

and quotation marks omitted).



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      In its 1925(a) opinion, the trial court found that Appellant “used an

atypical amount of force that was larger than necessary to fulfill the forcible

compulsion elements of [r]ape and IDSI.” Trial Court Opinion, 6/23/2017, at

9. Specifically,

            Appellant here grabbed the [victim’s] throat, threw the
      victim to the ground, and [] slammed her forehead on the floor.
      []Appellant came into the home while no one else was there
      beside the victim and fled the state shortly thereafter. The victim
      reported that she thought she was going to die during the attack.
      The reason that the assault stopped is because of a third party
      returning to the home. This amount of force here is significantly
      more than just climbing over the victim, which was the physical
      force used in Eckrote.

Id. at 9-10. After the initial assault wherein Appellant grabbed the victim’s

throat, threw her to the ground, and slammed her head on the floor, Appellant

used forcible compulsion by pulling her back to the floor as she tried to get

away, and forcibly removing her pants.       Moreover, Appellant covered the

victim’s face with his hand, silencing her as she tried to ask the 911 dispatcher

for help.

      We agree that the violence cited by the trial court was not included in

the sentencing guidelines’ consideration of normal forcible compulsion, and

thus the trial court’s reliance on that violence in fashioning Appellant’s

aggravated-range guidelines sentences was not clearly unreasonable. Walls,

926 A.2d at 967 (holding that factors of victim’s precise age and victim being

entrusted to defendant’s care were not subsumed within sentencing guidelines

and thus could justify an above-guideline sentence).



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     Appellant alleges in his second claim that he should not be subjected to

any sexual offender registration scheme in light of Commonwealth v. Muniz,

164 A.3d 1189 (Pa. 2017) (Opinion Announcing the Judgment of the Court)

and Commonwealth v. Butler, __ A.3d __, 2017 WL 4914155 (Pa. Super.

Oct. 31, 2017).1    Appellant’s Brief at 24; Appellant’s Rule 2501(b) Post-

Submission Communication, 11/1/2017. Appellant argues that because he

committed the instant rape and IDSI before the effective date of SORNA, the

registration requirements of SORNA were applied ex post facto.

     We consider Appellant’s ex post facto claim mindful of the following.

     Critical to relief under the ex post facto clause is not an individual’s
     right to less punishment, but the lack of fair notice and
     governmental restraint when the legislature increases punishment
     beyond what was prescribed when the crime was consummated.
     Based on these concerns, [in Calder v. Bull, 3 U.S. 386 (1798),]
     Chief Justice Chase set out four categories of laws that violate
     such prohibitions:

           1st. Every law that makes an action done before the
           passing of the law, and which was innocent when
           done, criminal; and punishes such action. 2nd. Every
           law that aggravates a crime, or makes it greater than
           it was, when committed. 3rd. Every law that
           changes the punishment, and inflicts a greater
           punishment, than the law annexed to the crime,
           when committed. 4th. Every law that alters the legal


1 Appellant acknowledged that he did not raise his Muniz claim within his Rule
1925(b) statement of errors complained of on appeal, which was filed on May
23, 2017, because Muniz was not decided until July 17, 2017. Appellant’s
Brief at 4. While Appellant raises this claim for the first time on appeal, we
may review it. See e.g. Butler, 2017 WL 4914155 at *2 (holding that while
issues not raised before the trial court are generally waived for appellate
purposes, a challenge to the legality of a sentence based on Muniz need not
be preserved in the trial court in order to be reviewable).


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            rules of evidence, and receives less, or different,
            testimony, than the law required at the time of the
            commission of the offense, in order to convict the
            offender.

      Furthermore, two critical elements must be met for a criminal or
      penal law to be deemed ex post facto: it must be retrospective,
      that is, it must apply to events occurring before its enactment,
      and it must disadvantage the offender affected by it. As such,
      [o]nly those laws which disadvantage a defendant and fall within
      a Calder category are ex post facto laws and constitutionally
      infirm. Commonwealth v. Young, [] 637 A.2d 1313, 1318
      ([Pa. ]1993) (emphasis in original). The ex post facto clauses of
      the United States and Pennsylvania Constitutions are implicated
      here because a holding rendering the effects of SORNA’s
      registration requirements punitive would place the statute into the
      third Calder category: application of the statute would inflict
      greater punishment on appellant than the law in effect at the time
      he committed his crimes.

Muniz, 164 A.3d at 1195–96 (quotation marks, unnecessary capitalization,

and some citations omitted) (emphasis added). “The Muniz Court held that

Pennsylvania’s SORNA is an unconstitutional ex post facto law when applied

retroactively to those sexual offenders convicted of applicable crimes before

the act’s effective[] date and subjected to increased registration requirements

under SORNA after its passage.” Commonwealth v. McCullough, __ A.3d

__, 2017 WL 5184490 at *1 (Pa. Super. Nov. 9, 2017); Commonwealth v.

Hart, __ A.3d __, 2017 WL 5246752 at *6 n.9 (Pa. Super. Nov. 13, 2017)

(holding that “the binding precedent emerging from Muniz is confined to the

determination that SORNA’s registration requirement is punishment that runs

afoul of the ex post facto clause of the Pennsylvania Constitution when applied

retroactively”).



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      Appellant committed the instant rape and IDSI on December 17, 2011.

At that time Megan’s Law III applied, which would require Appellant to register

with the state police for the remainder of his life as to both rape and IDSI. On

December 20, 2011, the legislature enacted SORNA.          See 42 Pa.C.S. §§

9799.10 and 9799.41. SORNA became effective on December 20, 2012, prior

to Appellant’s plea and sentencing but after he committed the instant offenses.

SORNA increased the registration period for certain crimes, but the

registration requirement for those convicted of rape and IDSI remained a

lifetime registration. Compare 42 Pa.C.S. § 9795.1(b)(2) (expired) with 42

Pa.C.S. § 9799.14(d) and § 9799.15(a)(3). Although it did not increase the

period of registration for rape and IDSI, SORNA did enhance registration

requirements for Tier III offenses, including quarterly in-person reporting and

dissemination of personal information via an Internet website. Muniz, 164

A.3d at 1210-11, (citing Commonwealth v. Perez, 97 A.3d 747, 765 (Pa.

Super. 2014) (Donohue, J. concurring)).       These additional, more stringent

registration requirements constitute a greater punishment than what would

have been imposed under Megan’s Law III. As such, retroactive application

of these enhanced registration requirements runs afoul of constitutional ex

post facto prohibitions. See Muniz, 164 A.3d at 1193, 1216.

      Appellant pled guilty after SORNA went into effect, and thus the trial

court purported to impose the new registration requirements and other

provisions of SORNA on him retroactively for crimes he committed when



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Megan’s Law III was applicable. Because Appellant committed his crimes at

a time when registration requirements for rape and IDSI were less onerous,

and thus the punishment was lesser, SORNA cannot be applied retroactively

to Appellant without violating the ex post facto clause of the Pennsylvania

constitution. See Muniz, 164 A.3d at 1192-93. Thus, we are constrained to

agree with Appellant that he is not required to register under SORNA.

      As to the second part of Appellant’s claim, this Court held in Butler that

subsection 9799.24(e)(3) of SORNA, regarding the procedure for determining

whether a defendant is a sexually violent predator, 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.”       2017 WL 4914155 at *6.

Appellant was specifically not designated as a sexually violent predator under

42 Pa.C.S. § 97993.24.      Thus, the holding in Butler does not apply to

Appellant, and it affords Appellant no relief. N.T., 2/27/2017, at 15.

      We vacate that portion of Appellant’s sentence requiring him to comply

with SORNA. The remainder of his judgment of sentence is affirmed.

      Judgment of sentence affirmed in part and vacated in part.           Case

remanded. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/23/2018




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