J-S73036-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                   Appellee               :
                                          :
              v.                          :
                                          :
DONOVON NEAL LEE,                         :
                                          :
                   Appellant              :           No. 1005 MDA 2014

        Appeal from the Judgment of Sentence entered on May 14, 2014
               in the Court of Common Pleas of Franklin County,
                 Criminal Division, No. CP-28-CR-0000954-2013

BEFORE: BOWES, WECHT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED DECEMBER 22, 2014

        Donovon Neal Lee (“Lee”) appeals from the judgment of sentence

imposed following his guilty plea to one count each of indecent assault and

corruption of minors.1     Additionally, Lee’s counsel, Ian M. Brink, Esquire

(“Attorney Brink”), has filed an Application to Withdraw as Counsel and an

accompanying brief pursuant to Anders v. California, 386 U.S. 738, 744

(1967) (hereinafter the “Anders Brief”).         We grant Attorney Brink’s

Application to Withdraw as Counsel and affirm Lee’s judgment of sentence.

        On April 19, 2013, Lee was charged with two counts of aggravated

indecent assault and one count each of indecent assault, unlawful contact

with a minor, corruption of minors and aggravated indecent assault of a

child. On August 28, 2013, Lee pled guilty to one count each of indecent


1
    See 18 Pa.C.S.A. §§ 3126(a)(7), 6301(a)(1)(i).
J-S73036-14


assault and corruption of minors. On May 14, 2014, following a hearing, the

trial court determined that Lee met the criteria to be classified as a sexually

violent predator. Thereafter, the trial court sentenced Lee to an aggregate

sentence of time served to 23 months in prison, followed by 18 months of

probation. Lee filed a timely Notice of Appeal.

      In his Anders Brief, Attorney Brink argues that the trial court erred

when it determined that Lee satisfied the criteria to be found a sexually

violent predator. See Anders Brief at 14.2

      “When presented with an Anders brief, this Court may not review the

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

withdraw.” Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010)

(citation omitted). Pursuant to Anders, when counsel believes an appeal is

frivolous and wishes to withdraw from representation, he must do the

following:

      (1) petition the court for leave to withdraw stating that after
      making a conscientious examination of the record, counsel has
      determined the appeal would be frivolous; (2) file a brief
      referring to any issues that might arguably support the appeal,
      but which does not resemble a no-merit letter; and (3) furnish a

2
  In the Statement of Questions Involved contained in the Anders Brief,
Attorney Brink broadly identified the issue raised on appeal as “[w]hether
there are any issues of arguable merit that could be raised on direct appeal
presently before this Court?” Anders Brief at 8 (capitalization omitted).
However, in the Argument section of the Anders Brief, as well as in Lee’s
Concise Statement of Matters Complained of on Appeal, Attorney Brink has
identified the issue raised on appeal as whether the trial court erred when it
determined that Lee satisfied the criteria to be found a sexually violent
predator. See id. at 14; see also Concise Statement of Matters Complained
of on Appeal, 6/26/14, at 1.


                                  -2-
J-S73036-14


      copy of the brief to the defendant and advise him of his right to
      retain new counsel, proceed pro se, or raise any additional points
      he deems worthy of this Court’s attention.

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)

(citation omitted).   In Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009), our Supreme Court addressed the second requirement of Anders,

i.e., the contents of an Anders brief, and required that the brief

      (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. “Once counsel has satisfied the [Anders]

requirements, it is then this Court’s duty to conduct its own review of the

trial court’s proceedings and render an independent judgment as to whether

the appeal is, in fact, wholly frivolous.”     Edwards, 906 A.2d at 1228

(citation omitted).

      Here, Attorney Brink has complied with each of the requirements of

Anders.     Attorney Brink indicates that he conscientiously examined the

record and determined that an appeal would be frivolous. Further, Attorney

Brink’s Anders brief comports with the requirements set forth by the



                                  -3-
J-S73036-14


Supreme Court of Pennsylvania in Santiago. Finally, the record contains a

copy of the letter that Attorney Brink sent to Lee, advising him of his right to

proceed pro se or retain alternate counsel and file additional claims, and

stating   Attorney   Brink’s   intention   to   seek   permission   to   withdraw.

Accordingly, Attorney Brink has complied with the procedural requirements

for withdrawing from representation, and we will review Lee’s appeal to

determine whether it is frivolous.

      The trial court set forth the relevant law, addressed Lee’s claim, and

concluded that it lacks merit. See Trial Court Opinion, 8/11/14, at 1-5. We

agree with the sound reasoning of the trial court and affirm on this basis.

See id.

      Based on our review of the record, Lee’s appeal is frivolous.

Accordingly, we affirm the judgment of sentence and grant Attorney Brink’s

Application to Withdraw as Counsel.

      Application to Withdraw as Counsel granted.         Judgment of sentence

affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2014




                                     -4-
                                                                                   Circulated 12/02/2014 11:23 AM




   IN THE COURT OF COlVflVION PLEAS OF THE 39 TH JUDICIAL DISTRICT OF
             PENNSYLVANIA - FRANKLIN COUNTY BRANCH

Commonwealth of Pennsylvania                         Criminal Court

                      vs.                            No.     954-2013

Donovan Neal Lee,                                    Judge Douglas W. Herman·
             Appellant

                              Opinion sur Pa. R. App. P. 1925(a)

       On April 19', 2013 Donovan Neal Lee ("Appellant") was 'charged with, inter alia,

Aggravated Indecent Assault when Complainant is Less Than 13 Years of Age; Indecent Assault

Without Consent of Complainant; and Unlawful Contact with a Minor. On August 28,2013

Appellant pled guilty to Count II amended to Indecent Assault and Count 4 amended to

Corruption of Minors. Based on his convictions we ordered Appellant be assessed by the

Pennsylvania Sexual Offenders Assessment Board and at sentencing on May 14, 2014 we

determined App~llant to be a sexually violent predator. Appellant now appeals his judgment of

sentence. For the reasons that follow we submit that no error was committed .by this Court.

                                          DISCUSSION

       Upon review of the Concise Statement of Matters Complained of on Appeal filed on June

26,2014, we note that Appellant raises one issue: "whether the trial court erred when it

determined that [Appellant] satisfied the criteria to be found a sexually violent predator."

Appellant argues that the Court should not have made such ,a conclusion because Appellant's

expert opined that even though Appellant did teclmically meet the criteria to be identified as a

sexually violent predator ("SVP") the Court should not have found Appellant to be a SVP due to

the absence of a known history of sexually offending behavior of a contact nature. We disagree .

      . 42 Pa.C.S. § 9799.24(a) provides that:

                                      fo)~©~JIW~~
                                      ~     AUG 1 1 20 14      ~;
                                                                                   Circulated 12/02/2014 11:23 AM




       After conviction but before sentencing, a court shall order an individual convicted of a
       sexually violent offense to be assessed by the board. The order for an assessment shall be
       sent to the administrative officer of the board within ten days of the date of conviction for
       the sexually violent offense.

Further, a member of the Pennsylvania Sexual Offenders Assessment Board ("SOAB") is to

conduct an assessment to determine whether the conviCted individual should be classified as a

SVP. 42 Pa.C.S. § 9799.24(b). Factors that the Court should consider include: whether the

offense involved multiple victims; whether the individual exceeded the means necessary to

achieve the offense; the nature of the sexual.contact with the.victim; the relationship of the

individual to the victim; the age of the victim; whether the offense included a display oftmusual

cruelty by the individual during the commission of the' crime; the mental capacity of the victim;

the individual's prior criminal record; whether the individual completed any prior sentences;

whether the individual participated in available programs for sexual offenders; the age of the

individual; use of illegal drugs by the individual; any mental illness, mental disability or mental

abnormality; behavioral characteristics that contribute to the individual's conduct; and factors

that are supported in a sexual offender assessment field as criteria reasonably related to the risk

ofre-offense. 42 Pa.C.S. § 9799.24(b).

       This Court held a SVP/sentencing hearing on May 14,2014 where we made a

determination that Appellant is a sexually violent predator. At that hearing Herbert Hays

testified as a board member for the SOAB. (Tr. of Proceedings 4:23-24, May 14,2014)

[hereinafter "Sentencing Tr.''J. Mr. Hays testified to the 14 factors delineated in 42 Pa.C.S. §

9799.24(b). The facts of the current offense consisted of the following: there was only one

victim in the case; Appellant did not do more than necessary to achieve the sexual offense

although the girl was only 12 years old; the nature of the sexual acts consisted of two occasions,

one whtireApp:enant
                . .
                    lpssed the victim and gave her a hickey on her neck, and another the next
                         ~



                                                                 ~   ..
                                                         ..   :.~.'. '.~   ~.' :


                                                  2
                                                                                  Circulated 12/02/2014 11:23 AM



day where Appellant gave the victim a hickey under her breast and placed his hand inside her

underwear and digitally penetrated her vagina; Appellant and the victim also talked on the phone

about engaging in sexual intercourse, the victim sent Appellant nude photographs and Appellant

sent her a photograph of his penis; there was no long-term relationship between the two as they

met at a park and were mere acquaintances; the victim was 12 years old at the tiIne of the

offense; there was no sadism or unusual cruelty involved; and there was no indication that the

victim was mentally limited. (Sentencing Tr. 7 :24-9:5). Prior offense history testified to by Mr.

Hays included the following: Appellant had a considerable juvenile and adult history of arrests

and supervision; at the time of the offense Appellant was under court supervision for retail theft;

and Appellant attended group therapy at the Abraxas Youth Center that addressed sexual

offending behavior where his high risk behaviors were identified and knowing those he still put

himself in a very high risk situation with the victim in this case. (Sentencing Tr. 9:6-10:4). As

to characteristics of Appellant, Mr. Hays testified to the following: Appellant was 22 years old;

he did not use drugs or give drugs to the victim; his mental health history includes ADHD, some

depression, mood disorder, and significant evidence of conduct disorder. Mr. Hays     con~luded


that Appellant has predatory behavior as evidenced by his initiation and continuation of romantic

behavior with the victim and he meets the criteria for status as a sexually violent predator

according to the 14 factors. (Sentencing Tr.1 0:4-11: 16). Further, Mr. Hays opined that

Appellant suffers from antisocial personality disorder which is a belief system that one is not

accountable to the law and in this case evinces a likelihood to commit future sexual offenses.

(Sentencing Tr. 11: 17-12:23). In conclusion, Mr. Hays opined that Appellant meets the criteria

for a sexually violent predator. (Sentencing Tr. 15:1-4).




                                                 3
                                                                                   Circulated 12/02/2014 11:23 AM




       Appellal"lt called Dr. Stanley Schneider to testify on his behalf as to whether or not

Appellant should be classified as a sexually violent predator. Dr. Schneider agreed with the

Commonwealth witness that Appellant has antisocial personality disorder. (Sentencing Tr. 40:8-

14). When Dr.   S~bneider   was asked whether Appellant meets the criteria for antisocial ..

personality disorder he responded: "He meets the diagnosis. Definitely I agree with it. The

records, you know, speak for themselves. The criteria are there." (SeBkncing Tr. 41 :5-17)_

Furthermore, Dr. Schneider also agreed that Appellant met the criteria for predatory behavior.

(Sentencing Tr. 41 :23-42:6). Despite Dr. Schneider's own fmdings he believed Appellant should

not be identified as a sexually violent predator because aside from the instant offense Appellant

does not have a history of sexually violent or inappropriate behavior. He also based his opinion

on the fact that Appellant cut off the relationship with the victim. (Sentencing Tr. 42: 11-43 :4).

       We are not persuaded by Appellant's argument that he should not be identified as a

sexually violent predator because of the lack of past history of sexual offenses. Prior offense

history refers generally to prior offenses and not specifically sexual offenses. 42 Pa.C.S. §

9799.24(b)(2). We believe the real significance of Appellant's prior criminal history, whether it

is sexual in nature or not, is the fact that Appellant possesses a willingness to go against society's

norms, a thought process which is indicative of antisocial personality disorder. While the instant

offense is Appellant's only sexual offense, it shows that the disregard for the law that is

associated with antisocial personality disorder has now resulted in asexual offense. The purpose

of the statute is to insure that sexual offenders do not commit another sexual offense in the

future. When the statutory requirements are met we do not see any reason to not apply the

dictates of the statute and determine that a sexual offender is a sexually violent predator. To wait.




                                                  4
                                                                                      Circulated 12/02/2014 11:23 AM




until an offender racks up mUltiple sexual offenses would fly in the face of the purpose of the

statute;

           Dr. Schneider also relied on the fact that Appellant terminated the relationship even

though he had the opportunity to continue re-offending. However, his stated reasoning for

discontinuing the relationship to pursue a relationship with an older woman had nothing to do

with recognition that his behavior was wrong .. Regarding his past treatment, Appellant was

given iriformation that would have allowed him to make appropriate decisions regarding control

of his behavior, however he evidently did not heed such advice. The nature of the relationship

demonstrated predatory behavior in that it was a very brief contact and ended in a sexual offense.

We believe that the factors set forth in 42 Pa.C.S. § 9799.24(b) we~gh in favor of classifying

Appellant as a sexually violent predator. As to the other requirements for status as a sexually

violent predator, Appellant's own exp'ert agreed with Mr. Hays of the SOAB that Appellant

displays predatory behavior and suffers from antisocial personality disorder. Therefore we

submit that we did not err in classifying Appellant as a sexual~y violent predator.

                                            CONCLUSION

           In light of the foregoing discussion, we suggest that no error was committed during this

proceeding and ask that the Superior Court affrrin our decision determining that Appei~ant is a

sexually violent predator.




                                                    5
