J-S81010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT
                                                           OF PENNSYLVANIA
                             Appellee

                        v.

    JOSEPH CHARLES CASWELL

                             Appellant                    No. 1003 MDA 2018


          Appeal from the Judgment of Sentence Entered May 4, 2018
             In the Court of Common Pleas of Lackawanna County
               Criminal Division at No.: CP-35-CR-0001630-2016


BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                               FILED MARCH 22, 2019

        Appellant Joseph Charles Caswell appeals from the judgment of

sentence entered in the Court of Common Pleas of Lackawanna County (“trial

court”), following his guilty plea to rape of a mentally disabled person.1

Appellant’s counsel, Donna M. De Vita, Esquire, has filed a petition to

withdraw, alleging that this appeal is wholly frivolous, and filed a brief

pursuant     to   Anders      v.    California,   386    U.S.   738   (1967),   and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). For the reasons set

forth below, we affirm, in part, vacate, in part, and remand to the trial court

for further proceedings; counsel’s petition to withdraw is denied.




____________________________________________


*   Former Justice specially assigned to the Superior Court.
1   18 Pa.C.S.A. § 3121(a)(5).
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        The facts and procedural history of this case are undisputed.          As

summarized by the trial court:

        [The foregoing charge] stemmed from an investigation by the
        Scranton Police Department’s Special Victims Unit after they were
        notified that [] an autistic female [(the “victim”)], who has the
        mental capacity of a five (5) year old and would not be capable of
        consenting to sexual activity, was pregnant. After the victim gave
        birth, [Appellant], who is the victim’s cousin, voluntarily appeared
        at Scranton Police Head Quarters to submit a DNA sample, upon
        the request of his aunt, the victim’s mother. The DNA test results
        eliminated two other subjects and indicated that [Appellant] was
        the father with 99.9999% probability. After [Appellant] was taken
        into custody and Mirandized,[2] he waived his Miranda rights
        and informed the officers that he could not be the father because
        he is sterile. After discussing the DNA test results, [Appellant]
        stated the intercourse was “an accident.” [Appellant] also gave a
        written statement that he took the victim to get ice cream from
        the grocery store, before he subsequently parked in the little
        league parking lot where they began kissing and eventually had
        intercourse in the backseat.

              On October 30, 2017, [Appellant] entered a guilty plea to
        one (1) count of rape of a mentally disabled person. Prior to
        entering his guilty plea, [Appellant] executed a lengthy written
        plea colloquy form in which he indicated his knowledge that the
        maximum penalty he faced was twenty-five (25) years of
        confinement and a $25,000.00 fine, the elements of the crimes
        charged, his satisfaction with counsel, and the terms of the plea
        agreement. T[he trial c]ourt also conducted an on the record
        inquiry into the whether [Appellant] was entering a knowing,
        voluntary, and intelligent plea. [Appellant] advised the [trial
        court] that he was aware of the rights he was giving up and the
        penalties he was facing. [Appellant] further admitted that he
        committed the crime of engaging in sexual intercourse with the
        victim, a person with a mental disability who was incapable of
        consent[ing]. After determing that [Appellant] was entering a
        knowing, voluntary, and intelligent plea, [the trial court] accepted
        the guilty plea. Sentencing was deferred pending completion of a
        presentence investigation report [(“PSI”)].

               On May 4, 2018, [the trial court] determined that
        [Appellant] is a sexually violent predator and imposed sentence.
        [The trial court] sentenced [Appellant] above the aggravated
        range to ten (10) to twenty (20) years in a state correctional
        institution.

____________________________________________


2   Miranda v. Arizona, 384 U.S. 436 (1966).

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            On May 11, 2018, [Appellant] filed a motion for
      reconsideration of sentence, alleging that [the trial court] imposed
      an excessive sentence and erroneously relied upon factors
      contemplated by the guidelines.         [The trial court] denied
      [Appellant’s] motion on May 14, 2018, and [Appellant] filed a
      notice of appeal to [this Court] on June 5, 2018.

Trial Court Opinion, 8/13/18, at 1-3 (internal citations and unnecessary

capitalizations omitted).   Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

      On September 25, 2018, Appellant’s counsel filed in this Court a motion

to withdraw as counsel and filed an Anders brief, wherein counsel raises the

following issues for our review:

      [I.] Whether the sentencing court erroneously relied upon factors
      that are already taken into consideration by the Sentencing
      Guidelines, such as the victim’s mental disability and Appellant’s
      prior criminal record, when it imposed a sentence above the
      aggravated range and which sentence is the maximum sentence
      permitted for the crime charged?

      [II.] Whether the sentencing court imposed a harsh and
      unreasonable sentence?


Anders Brief at 4.

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

merits of the underlying issues without first examining counsel’s petition to

withdraw.   Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc).     It is well-established that, in requesting a withdrawal,

counsel must satisfy the following procedural requirements: 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) provide a copy of the brief to the defendant; and 3) advise the


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defendant that he or she has the right to retain private counsel, proceed pro

se or raise additional arguments that the defendant considers worthy of the

court’s addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009).

      Instantly, counsel’s petition to withdraw from representation provides

that counsel reviewed the record and concluded that the appeal is frivolous.

Furthermore, counsel notified Appellant that she was seeking permission to

withdraw and provided Appellant with copies of the petition to withdraw and

her Anders brief. Counsel also advised Appellant of his right to retain new

counsel, proceed pro se, or raise any additional points he deems worthy of

this Court’s attention. Accordingly, we conclude that counsel has satisfied the

procedural requirements of Anders.

      We next must determine whether counsel’s Anders brief complies with

the substantive requirements of Santiago, wherein our Supreme Court held:

      [I]n the Anders brief that accompanies court-appointed counsel’s
      petition to withdraw, counsel 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. Here, our review of counsel’s brief indicates that

she has complied with the briefing requirements of Santiago. We, therefore,

conclude   that   counsel   has   satisfied   the   minimum   requirements    of

Anders/Santiago.


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      Once    counsel   has   met   her   obligations,   “it   then   becomes   the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the appeal

is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5. Thus, we now

turn to the merits of Appellant’s appeal.

      Appellant’s issues on appeal implicate the discretionary aspects of his

sentence. Specifically, he argues that the trial court abused its discretion in

“double counting” the victim’s mental disability and his criminal record to

fashion his sentence of 10 to 20 years in prison. Relatedly, Appellant argues

that the trial court abused its discretion in imposing upon him the statutory

maximum sentence, i.e., a sentence outside of the Sentencing Guidelines and

the aggravated range.

      At the outset, “we note that when a defendant enters a guilty plea, he

or she waives all defects and defenses except those concerning the validity of

the plea, the jurisdiction of the trial court, and the legality of the sentence

imposed.” Commonwealth v. Stradley, 50 A.3d 769, 771 (Pa. Super. 2012)

(citation omitted). “Our law presumes that a defendant who enters a guilty

plea was aware of what he was doing.          He bears the burden of proving

otherwise.” Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super.

2011) (citation omitted). Where there have been no sentencing restrictions

in a plea agreement, an “open plea,” the entry of a guilty plea will not preclude

a challenge to the discretionary aspects of sentencing. Commonwealth v.

Dalberto, 648 A.2d 16, 20 (Pa. Super. 1994), appeal denied, 655 A.2d 983

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(Pa. 1995). The record in this case reveals that Appellant entered into an

open guilty plea. Accordingly, because of his open plea of guilty, Appellant is

permitted to challenge the discretionary aspects of his sentence.

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

sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220

(Pa. Super. 2011). Rather, where an appellant challenges the discretionary

aspects of a sentence, an appellant’s appeal should be considered as a petition

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

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

Super. 2010):

      An appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction by satisfying a four-part test:
         [W]e conduct a four-part analysis to determine: (1) whether
         appellant has filed a timely notice of appeal, see Pa.R.A.P.
         902 and 903; (2) whether the issue was properly preserved
         at sentencing or in a motion to reconsider and modify
         sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s
         brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
         there is a substantial question that the sentence appealed
         from is not appropriate under the Sentencing Code, 42
         Pa.C.S.A. § 9781(b).

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

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

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

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

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




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       Here, Appellant has satisfied the first three requirements of the four-

part Moury test. Appellant filed a timely appeal to this Court, preserved the

issue on appeal through his post-sentence motions, and included a Pa.R.A.P.

2119(f) statement in his brief.3           We, therefore, must determine only if

Appellant’s sentencing issues raise a substantial question.

       The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825,

828 (Pa. Super. 2007).         We have found that a substantial question exists

“when the appellant advances a colorable argument that the sentencing

judge’s actions were either: (1) inconsistent with a specific provision of the

Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process.” Commonwealth v. Phillips, 946 A.2d 103, 112

(Pa. Super. 2008) (citation omitted), appeal denied, 964 A.2d 895 (Pa.

2009).

       Here, Appellant has a raised a substantial question with respect to his

discretionary aspects of sentence claims. See Commonwealth v. Bowen,

975 A.2d 1120, 1120 (Pa. Super. 2009) (noting that a defendant’s argument

that his sentence “was based on an unconstitutional factor . . . raises a

substantial question for our review”); Commonwealth v. Goggins, 748 A.2d

721, 728 (Pa. Super. 2000) (en banc) (stating that double counting a
____________________________________________


3 Rule 2119(f) provides that “[a]n appellant who challenges the discretionary
aspects of a sentence in a criminal matter shall set forth in his brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).

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defendant’s prior record score raises a substantial question), appeal denied,

759 A .2d 920 (Pa. 2000); Commonwealth v. Robinson, 931 A.2d 15, 27

(Pa. Super. 2007) (a claim that the trial court impermissibly double-counted

factors already incorporated in the sentencing guidelines raises a substantial

question); Commonwealth v. McNabb, 819 A.2d 54, 56–57 (Pa. Super.

2003) (a claim that the trial court relied on impermissible factors raises a

substantial question); Commonwealth v. Fullin, 892 A.2d 843, 848 (Pa.

Super. 2006) (concluding appellant raised substantial question where he

argued “that the trial court improperly based [appellant’s] aggravated range

sentence on a factor that constituted an element of the offense”);

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (stating

that an “[a]ppellant’s contention that the sentencing court exceeded the

recommended range in the sentencing guidelines without an adequate basis

raises a substantial question for this Court to review.”); Commonwealth v.

Lawrence, 960 A.2d 473, 478 (Pa. Super. 2008) (stating that a claim that a

sentence was unreasonable because it was outside the sentencing guidelines

raises a substantial question).   Accordingly, we will address the merits of

Appellant’s sentencing claims.

      When reviewing a challenge to the trial court’s discretion, our standard

of review is as follows:

      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. An abuse of discretion is
      more than just an error in judgment and, on appeal, the trial court
      will not be found to have abused its discretion unless the record


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       discloses that the judgment exercised was manifestly
       unreasonable, or the result of partiality, prejudice, bias, or ill-will.

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012) (quoting

Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002)),

appeal denied, 64 A.3d 630 (Pa. 2013).

       We first address Appellant’s argument that the trial court abused its

discretion in double counting the victim’s mental disability and his criminal

history in crafting his sentence of 10 to 20 years in prison. Appellant’s Brief

at 14. In particular, Appellant points out that the victim’s mental disability is

an element of the charged offense, i.e., rape of a mentally disabled person.4

Id. Similarly, Appellant argues that the trial court double-counted his criminal

history as it already was reflected in his prior record score. Id. at 14-15.

       Generally, “[i]t 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   mitigating   range.”

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)


____________________________________________


4 As charged in this case, a person commits rape when “the person engages
in sexual intercourse with a complainant . . . [w]ho suffers from a mental
disability which renders the complainant incapable of consent.” 18 Pa.C.S.A.
§ 3121(a)(5). Section 3121(a)(5) does not provide whether a defendant must
know that the victim has a mental disability rendering him or her incapable of
consent.      The Commonwealth nevertheless must prove mens rea.
Commonweatlh v. Thomson, 673 A.2d 357, 359 (Pa. Super. 1996). The
victim’s mental state is a material element of the crimes. Therefore, under
Section 302 of the Crimes Code, the Commonwealth must prove, at a
minimum, the defendant recklessly disregarded the existence of the victim’s
mental disability. Id. (quoting Commonwealth v. Cater, 418 A.2d 537, 539
(Pa. Super. 1980).

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(emphasis in original). Additionally, “[t]rial courts are permitted to use factors

“already included in the guidelines if, they are used to supplement other

extraneous sentencing information.” Id. When deciding whether a court has

improperly based an aggravated sentence on a factor that is already

considered by the sentencing guidelines, we have stated:

            [T]he guidelines were implemented to create greater
      consistency and rationality in sentencing.        The guidelines
      accomplish the above purposes by providing a norm for
      comparison, i.e., the standard range of punishment, for the
      panoply of crimes found in the crimes code and by providing a
      scale of progressively greater punishment as the gravity of the
      offense increases. . . . The provision of a “norm” also strongly
      implies that deviation from the norm should be correlated with
      facts about the crime that also deviate from the norm for the
      offense, or facts relating to the offender's character or criminal
      history that deviates from the norm and must be regarded as not
      within the guidelines contemplation. Given this predicate, simply
      indicating that an offense is a serious, heinous or grave offense
      misplaces the proper focus. The focus should not be upon the
      seriousness, heinousness or egregiousness of the offense
      generally speaking, but, rather, upon how the present case
      deviates from what might be regarded as a “typical” or “normal”
      case of the offense under consideration.

Fullin, 892 A.2d at 848 (citation omitted). Moreover, “[a]n aggravated range

sentence [is] justified to the extent that the individual circumstances of [the

defendant’s] case are atypical of the crime for which [the defendant] was

convicted, such that a more severe punishment is appropriate.”          Id.   The

Fullin Court affirmed an aggravated range sentence because the trial court

justified the sentence by opining on “the extreme indifference for the

consequences of [the defendant’s] actions and because of the extreme nature

of the harm to the victim.” Id. at 849 (citation omitted).




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      Here, the trial court noted that given the extent of the victim’s mental

limitations, her mental disability was an appropriate supplemental factor. Trial

Court Opinion, 8/13/18, at 9.     The trial court intimates that the individual

circumstances of this case are atypical of the crime for which Appellant was

convicted. Thus, the trial court maintains that Appellant’s statutory maximum

sentence was appropriate.

      Regardless of whether this case is typical or atypical, and even if the

trial court impermissibly considered the victim’s mental disability or

Appellant’s criminal history, it also considered a number of additional,

permissible factors in sentencing Appellant to the statutory maximum

sentence of 10 to 20 years’ imprisonment. As the trial court explained:

      In imposing sentence, [the trial court] noted the relative
      sophistication of [Appellant], as compared to the victim, as an
      aggravating factor. [Appellant] is of average intelligence, was
      honorably discharged from the military, and has a lengthy work
      history; in contrast, the victim is non-verbal with a significant
      mental disability and the mental capacity of a 5 year old child.
      [The trial court] was also aware of [Appellant’s] long criminal
      history resulting in a prior record score of 5, including a past
      conviction for a sexual offense [(indecent assault)]. [The trial
      court] also noted the age difference between [Appellant] and the
      victim; [Appellant] was 58 years old at the time, and the victim
      was 27. [The trial court] further noted that [Appellant] abused
      his position of trust and his relationship with the victim, as he took
      his mentally disabled cousin for ice cream and then impregnated
      her.     An additional aggravating factor this [c]ourt found
      compelling was the fact that the victim became pregnant and gave
      birth as a result of this rape. As noted by the Commonwealth ,
      this caused tremendous amount of trauma and stress to the
      mentally disabled victim, who does not have the mental capacity
      to understand what was happening to her body. Finally, this
      [c]ourt considered [Appellant’s] statements regarding his lack of
      responsibility for his conduct. Although [Appellant] confessed to
      the police and entered a guilty plea, [he] did not completely accept
      responsibility. Despite [Appellant’s] contentions, confessing to
      the police and entering a guilty plea does not amount to a
      complete acceptance of responsibility.           Specifically, during


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      [Appellant’s] interview for his presentence investigation report,
      [he] gave his version of events as follows:

            “They say that I raped by cousin. I didn’t rape her, it
            was consensual. They say because of her disability
            that it’s rape that I had sex with her. She’s non-
            verbal. She had a fight with her mom so I picked her
            up and we went out to the park. I gave her a hug to
            comfort her and we ended up having sex up at the
            park. She started kissing me and it went from there.”

       ....

      Even after his arrest and guilty plea, [Appellant] characterized his
      behavior as consensual and even claimed that the victim initiated
      the contact. The [trial court] is of the opinion that is not a genuine
      acceptance of responsibility.

Trial Court Opinion, 8/13/18, at 8-9 (record citations omitted). Given the trial

court’s use of other permissible factors, it did not abuse its discretion in

considering the victim’s mental disability and Appellant’s criminal history. See

Bowen, 975 A.2d at 1127 (noting that, despite relying on an impermissible

factor, the trial court evaluated several permissible factors in imposing an

aggravated-range sentence); Commonwealth v. P.L.S., 894 A.2d 120, 133

(Pa. Super. 2006) (finding that even if the trial court considered an

inappropriate factor at sentencing, “the court offered significant other support

for sentencing in excess of the guidelines in this case”), appeal denied, 906

A.2d 542 (Pa. 2006).

      We next address Appellant’s argument that the trial court abused its

discretion in imposing upon him a statutory maximum sentence of 10 to 20

years’ incarceration because the sentence is unreasonable. Appellant’s Brief

at 15-16.




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      It is settled that the trial court may sentence a defendant outside the

range provided by the sentencing guidelines as long as the trial court gives its

reasons for doing so on the record. Commonwealth v. Walls, 846 A.2d 152,

158 (Pa. Super. 2004), reversed on other grounds, 926 A.2d 957 (Pa.

2007).
            When reviewing a sentence outside of the guideline range,
      the essential question is whether the sentence imposed was
      reasonable. Commonwealth v. Walls, [] 926 A.2d 957, 962
      ([Pa.] 2007). An appellate court must vacate and remand a case
      where it finds that “the sentencing court sentenced outside the
      sentencing guidelines and the sentence is unreasonable.” 42
      Pa.C.S.A. § 9781(c)(3).         In making a reasonableness
      determination, a court should consider four factors:

         (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.A. § 9781(d). A sentence may be found unreasonable
      if it fails to properly account for these four statutory factors. A
      sentence may also be found unreasonable if the “sentence was
      imposed without express or implicit consideration by the
      sentencing court of the general standards applicable to
      sentencing.” Walls, 926 A.2d at 964. These general standards
      mandate that a sentencing court impose a sentence “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.” 42
      Pa.C.S.A. § 9721(b).

Commonwealth v. Sheller, 961 A.2d 187, 190-91 (Pa. Super. 2008),

appeal denied, 980 A.2d 607 (Pa. 2009).

      Simply put,

      Where an excessiveness claim is based on a court’s sentencing
      outside the guideline ranges, we look, at a minimum, for an
      indication on the record that the sentencing court understood the

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     suggested sentencing range. When the court so indicates, it may
     deviate from the guidelines, if necessary, to fashion a sentence
     which takes into account the protection of the public, the
     rehabilitative needs of the defendant, and the gravity of the
     particular offenses as it relates to the impact on the life of the
     victim and the community, so long as the court also states of
     record the factual basis and specific reasons which compelled him
     to deviate from the guideline range.

Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003)

(internal citations and quotation marks omitted).    The trial court also is

required to consider the sentencing guidelines.     See Commonwealth v.

Bonner, 135 A.3d 592, 604 (Pa. Super. 2016). When the challenged sentence

is within the sentencing guidelines, we may only vacate a sentence where the

application of the guidelines would be clearly unreasonable. Id. (citing 42

Pa.C.S.A. § 9781(c)(2)).   Here, it is undisputed that Appellant received a

sentence outside of the aggravated range of the guidelines. The trial court

imposed upon him a statutory maximum sentence of 10 to 20 years’

imprisonment.   See 18 Pa.C.S.A. § 1103(a).       Thus, we may vacate his

sentence only if it was clearly unreasonable. Bonner, 135 A.3d at 604.

     Initially, we note that “[w]here a PSI exists, we presume that the trial

court was aware of relevant information regarding the defendant’s character

and weighed those considerations along with mitigating statutory factors. A

PSI constitutes the record and speaks for itself.” Bonner, 135 A.3d at 605

(original brackets and citation omitted). Here, the trial court was provided

with a PSI and we presume the trial court was aware of the relevant

information contained therein.    The trial court also was aware of the

sentencing guidelines. See Trial Court Opinion, 8/13/18, at 10.


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      Moreover, as stated earlier, the trial court provided a number of reasons

for sentencing Appellant outside of the sentencing guidelines. Specifically, the

trial court found that the victim was Appellant’s non-verbal cousin with a

severe mental disability and a mental capacity of a five-year-old child. The

court further found that Appellant abused his position of trust by taking the

victim out for ice cream and then raping her at the little league parking lot.

Because of the rape, the victim became pregnant and ultimately carried and

delivered a child. The court also found that the pregnancy and the resulting

birth caused the victim tremendous physical and emotional trauma because

the victim lacked the capacity to appreciate that was happening to her body.

The trial court observed that the significant age difference between the victim

and Appellant.   At the time of the rape, the victim was 27 years old and

Appellant was 58 years old. Finally, the trial court found that Appellant did

not accept responsibility for his actions even though he pleaded guilty sub

judice. Given the trial court’s review of the PSI and based on the foregoing

factors, we cannot conclude that the trial court abused its discretion under the

circumstances of this case in imposing upon Appellant a statutory maximum

sentence of 10 to 20 years’ imprisonment for rape of a mentally disabled

person. Accordingly, Appellant is not entitled to relief.

      Finally, based on our review of the record, we conclude that, under

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




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granted, No. 47 WAL 2018, 2018 WL 3633945 (Pa. filed July 31, 2018),

Appellant’s SVP designation is unconstitutional.5

       As this Court has explained:

       Butler applied Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
       2017), which held that the sexual offender requirements under
       the Sexual Offender Registration and Notification Act
       [(“SORNA”)], including its SVP framework, constitute punishment.
       Butler determined that, as a result of Muniz, the SVP procedure
       is subject to the constitutional requirement that the facts
       constituting that punishment must be found by a fact-finder
       beyond a reasonable doubt. Thus, 42 Pa.C.S.A. § 9799.24(e)(3),
       which requires the trial court to find the relevant facts by clear
       and convincing evidence, was deemed unconstitutional. Id. at
       1218.

Commonwealth v. Tighe, 184 A.3d 560, 583 (Pa. Super. 2018).

       Thus, in light of Butler, Appellant’s SVP designation under SORNA is

illegal. We vacate the May 4, 2018 judgment of sentence only with respect to

the trial court’s SVP determination under SORNA and remand this matter to

the trial court to determine what registration requirements apply to Appellant,

and to provide him proper notice thereof.

       We have conducted an independent review of the record and addressed

Appellant’s arguments on appeal. Based on our conclusions above, we agree

with Appellant’s counsel that the sentencing issues Appellant seeks to litigate

in this appeal are wholly frivolous.           However, in light of Appellant’s SVP

designation, which implicates the legality of his sentence, we deny counsel’s



____________________________________________


5 As we observed in Butler, we sua sponte may review Appellant’s SVP
designation because it implicates the legality of his sentence. Butler, 173
A.3d at 1214-15.

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petition to withdraw. We vacate the judgment of sentence only insofar as it

relates to the SVP designation, but affirm it in all other respects.

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

remanded for further proceedings consistent with this Memorandum. Petition

to withdraw denied. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/22/2019




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