J-S24028-16

                             2016 PA Super 121

COMMONWEALTH OF PENNSYLVANIA,                IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellee

                   v.

EDWARD GALE SCHRADER,

                        Appellant                 No. 1537 MDA 2015

                Appeal from the Order Dated August 11, 2015
              In the Court of Common Pleas of Bradford County
                          Criminal Division at No(s):
                          CP-08-CR-0000078-2015

COMMONWEALTH OF PENNSYLVANIA,                IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellee

                   v.

EDWARD SCHRADER,

                        Appellant                 No. 1538 MDA 2015


           Appeal from the Judgment of Sentence April 29, 2015
             In the Court of Common Pleas of Bradford County
                        Criminal Division at No(s):
                         CP-08-CR-0000777-2014


BEFORE: GANTMAN, P.J., BOWES, AND MUSMANNO, JJ.

OPINION BY BOWES, J.:                               FILED JUNE 14, 2016

     Edward Schrader appeals from the April 29, 2015 judgment of

sentence imposing an aggregate term of one year and eight months to six

years imprisonment after Appellant tendered guilty pleas to two counts of

indecent assault. Appellant separately appeals the trial court’s August 11,
J-S24028-16



2015 determination that he is a sexually violent predator (“SVP”).            We

affirm.

       The following facts were set forth at the sentencing proceeding and in

the    affidavits    of    probable      cause.1     On   October     13,   2014,

Appellant sexually assaulted his step-granddaughter, E.C., as she slept at

the home he shared with his wife, N.S.             Sometime during the evening,

Appellant walked into E.C.’s bedroom and fondled her.         E.C. woke up and

Appellant left the bedroom.          E.C. told N.S., who then called the child’s

mother.

       Appellant pled guilty to one count of indecent assault of an

unconscious person, graded as a misdemeanor of the first degree, 18

Pa.C.S. § 3126(a)(4), and was assessed by the Sexual Offender Assessment

Board (“SOAB”) in anticipation of sentencing. However, the sentencing/SVP

determination was postponed after police discovered that Appellant had

previously molested E.C.’s younger sister, S.C., multiple times.2

       For the crimes against S.C., Appellant pled guilty to a sole count of

indecent assault of a person less than 13 years of age, graded as a

misdemeanor of the first degree. 18 Pa.C.S. § 3126(a)(7).

____________________________________________


1
       The guilty plea proceedings are not in the certified record.
2
      E.C. testified that S.C. revealed the molestation to her. E.C. then told
her parents, who contacted the police. N.T. Sentencing, 4/29/15, at 47-48.



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J-S24028-16



      On April 29, 2015, Appellant was sentenced in both cases. Appellant

waived his right to a pre-sentence SOAB assessment. The trial court then

imposed    an    aggravated-range     sentence    of   one   to   three   years   of

imprisonment at CP-08-CR-0000777-2014. At CP-08-CR-0000078-2015 the

court imposed a consecutive term of eight months to three years. Appellant

does not challenge this sentence, which was within the standard range of the

guidelines.     The sentencing court noted that the pre-sentence reports

indicated Appellant had received an Accelerated Rehabilitative Disposition

(“ARD”) for a similar crime against the victims’ aunt in 1983.                  N.T.

Sentencing, 4/29/15, at 9.     That information was brought to the court’s

attention by the maternal grandfather.           On August 11, 2015, the SVP

hearing was held and the court designated Appellant an SVP.

      On September 8, 2015, Appellant filed a notice of appeal.            He now

raises three issues for our review.

      1.    The [c]ourt erred in sentencing [Appellant] in the
      aggravated range of the sentencing guidelines by considering a
      prior sexual abuse case that occurred in the 1980[]s and
      [Appellant] was given an ARD which was later dismissed and
      expunged from his record.

      2.   The [c]ourt erred in sentencing             [Appellant]   in   the
      aggravated range of the guidelines.

      3.    The [c]ourt erred in designating [Appellant] as a sexual
      violent predator.

Appellant’s brief at 3-4.




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J-S24028-16



       We first address the timeliness of these appeals.   Appellant and the

Commonwealth consider the trial court’s April 29, 2015 sentence final as of

the SVP determination on August 11, 2015. The notice of appeal is timely

with respect to the SVP determination.      While individuals convicted of a

sexually violent offense are required to be assessed by the SOAB before

sentencing, Appellant waived that requirement pursuant to Commonwealth

v. Whanger, 30 A.3d 1212 (Pa.Super. 2011).

       However, we have not decided when a defendant who waives the SVP

pre-sentence assessment must appeal issues arising prior to the SVP

determination.   The concurring opinion in Whanger outlined the issue we

encounter herein:    “[T]he question remains whether a similarly situated

defendant who has other issues unrelated to his SVP status should await his

post-sentence SVP hearing before filing his direct appeal.”    Whanger, 30

A.3d    at 1219, n.3 (Bowes, J., concurring).    We conclude that where a

defendant pleads guilty and waives a pre-sentence SVP determination, the

judgment of sentence is not final until that determination is rendered.

       It is well-settled that an SVP order is a non-punitive collateral

consequence of the criminal sentence.      Commonwealth v. Harris, 972

A.2d 1196, 1201 (Pa.Super. 2009).         Appellant’s sentencing claims are

untimely if the incarceration portion of the criminal sentence became final

thirty days after sentencing.    Pa.R.Crim.P. 903(a); Commonwealth v.

Lawrence, 99 A.3d 116, 117, n.1 (Pa.Super. 2014) (“[A] direct appeal in a

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J-S24028-16



criminal case can only lie from the judgment of sentence.”) We recognize,

however, that “the imposition of SVP status is a component of the

judgment of sentence even though the ultimate collateral consequences are

non-punitive.” Harris, supra, at 1201 (emphasis added).

     In Harris, we considered when the defendant’s judgment of sentence

became final for purposes of the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541–9546.     The trial court had sentenced the defendant on

January 11, 2002. The Commonwealth then requested an SVP assessment,

which the trial court denied.    Id. at 1198.   Subsequently, the defendant

appealed his judgment of sentence, and the Commonwealth appealed the

trial court’s refusal to order an assessment.       The defendant’s appeal

concluded in 2002. The Commonwealth’s appeal became final on June 22,

2004, when our Supreme Court reversed and remanded for an SVP hearing.

Id. at 1199.

      The defendant in Harris filed a PCRA petition in December of 2004.

The Harris Court ruled the judgment of sentence became final on

September 20, 2004, which was the last day to petition the Supreme Court

of the United States for review of the reversal, and thus, the defendant’s

petition was timely. Id. at 1200.

     We see no reason to deem the sentence final when the period of

incarceration was imposed.      As Harris noted, an SVP assessment can be

used by the sentencing judge as either an aggravating or mitigating factor.

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Id. at 1201. This fact surely plays a role in plea negotiations. Waiving the

pre-sentence SOAB assessment benefits the defendant since the sentencing

court can no longer use a negative SVP determination as an aggravating

factor.3 The Commonwealth benefits as the entry of the guilty plea severely

limits the grounds for withdrawal.

       We find additional support for our conclusion in Commonwealth v.

Deshong,       850    A.2d    712     (Pa.Super.   2004).    In   Deshong,   the

Commonwealth and defendant negotiated a guilty plea that included an

agreement to “pay restitution as determined by the Fulton County Probation

Department, subject to a hearing if requested.”             Id. at 713 (internal

quotation marks omitted). Fourteen months after sentencing, the amount of

restitution still had not been determined, and the trial court scheduled a

hearing.    After sentencing—but before the hearing—we issued an opinion

holding that restitution must be determined at the time of sentencing if the

restitution is imposed as a direct sentence. The trial court, relying on that

case, determined it could not modify the restitution at the hearing.

       The Commonwealth appealed. While the timeliness of the appeal was

not specifically challenged we stated, “Although the judgment of sentence

____________________________________________


3
     Our holding removes the risk of the SVP determination becoming an
aggravating factor but preserves the ability to request a sentence reduction
if the SVP determination becomes favorable to the defendant.




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J-S24028-16



was entered in April of 2001, we find that the present order refusing to set

restitution acts to finalize the sentence.” Id. at 714, n.1. Deshong pointed

to the parties’ plea agreement, which called for the possibility of a later

restitution hearing.      Id. at 714.      Thus, the sentence was not final until

restitution had been determined.4          Similarly, the parties in this case made

the SVP waiver a component of the plea agreement. The agreement was not

complete until the SVP determination was made.

       Having determined these appeals are timely, we now address

Appellant’s challenges to his sentence.            Appellant first avers that the

sentencing court should not have considered his expunged ARD case.

Appellant also challenges the court’s imposition of an aggravated-range

sentence. While Appellant appears to argue that his first issue concerns the

sentence’s legality, it is clear this allegation pertains to its discretionary
____________________________________________


4
      Deshong did not specifically determine whether restitution was part of
Deshong’s criminal sentence. That topic is the subject of debate. Compare
Commonwealth v. Wall, 867 A.2d 578, 582 (Pa.Super. 2005) (“The
imposition of costs and restitution are not considered punishment. Both
costs and restitution are designed to have the defendant make the
government and the victim whole.”), and Commonwealth v. Pleger, 934
A.2d 715, 720 (Pa.Super. 2007) (“Various characteristics of restitution
further illustrate that its true nature is that of a criminal sanction.”)

       In reaching our conclusion, we cannot and do not disturb the
precedent holding SVP status is non-punitive, although our Supreme Court is
revisiting the issue. Commonwealth v. Reed, 2016 WL 1615779, at *1
(Pa. 2016).




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J-S24028-16



aspects.    See Commonwealth v. Shugars, 895 A.2d 1270, 1274

(Pa.Super. 2006) (applying discretionary aspects of sentencing test to claim

trial judge improperly considered uncharged conduct in imposing sentence).

      Preliminarily, we note that “there is no absolute right to appeal when

challenging the discretionary aspect of a sentence.”      Commonwealth v.

Ahmad, 961 A.2d 884, 886 (Pa.Super. 2008).           An appellant must first

satisfy a four-part test to invoke this Court’s jurisdiction. We examine

      (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).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013) (citation

omitted). As discussed, these appeals are timely. Appellant’s brief complies

with Pa.R.A.P. 2119(f) by including a separate petition for allowance of

appeal.    Finally, both allegations of error raise a substantial question.

Commonwealth v. Hyland, 875 A.2d 1175 (Pa.Super. 2005) (substantial

question where appellant alleges court did not consider any mitigating

circumstances); Shugars, supra, at 1274 (claim that sentencing judge

relied on impermissible factor presents substantial question). Since we

conclude only one claim has been preserved, we address that aspect of the

test separately.




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J-S24028-16



      Appellant’s ARD argument has been preserved.                  He objected to the

victims’ references to the expungement and asked the trial court not to

consider this information. N.T. Sentencing, 4/29/15, at 45. In addressing

Appellant’s claim, the trial court’s opinion cited the Criminal History Record

Information    Act   (“CHRIA”),        18    Pa.C.S.   §§        9101-9183,     and     the

Commonwealth Court of Pennsylvania’s analysis of the CHRIA in Doe v.

Zappala, 987 A.2d 190 (Pa.Cmwlth. 2009).               Appellant distinguishes Doe

and argues the trial court “had a duty to use a balancing test to determine

the interest and harm the [appellant] would suffer in using his prior

expunged ARD record[.]”           Appellant’s brief at 11.       We find the CHRIA is

irrelevant to this claim.

      The balancing test cited by Appellant is inapplicable herein since

Appellant was not seeking expungement of any record. CHRIA’s balancing

test applies only “when faced with a request for expungement of a criminal

record[.]” Commonwealth v. Butler, 672 A.2d 806, 808 (Pa.Super. 1996)

(quoting Commonwealth v. Wexler, 431 A.2d 877, 879 (Pa.Super.

1981)). The countervailing interest of preserving a record is not present in

this case. The trial court was permitted to consider relevant facts regarding

Appellant’s   character     and    history   presented      by    persons     with    direct

knowledge of Appellant’s conduct.

      Not only does the caselaw authorize a sentencing court to
      consider unprosecuted criminal conduct, the sentencing
      guidelines essentially mandate such consideration when a prior

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J-S24028-16



       record score inadequately reflects a defendant's criminal
       background. In 204 Pa.Code § 303.5(d), Adequacy of the Prior
       Record Score, the sentencing guidelines provide that the court
       “may consider at sentencing previous convictions, juvenile
       adjudications or dispositions not counted in the calculation of the
       Prior Record Score, in addition to other factors deemed
       appropriate by the court.”

Commonwealth           v.   P.L.S.,    894     A.2d    120,   131    (Pa.Super.   2006).

Sentencing is vested in the discretion of the sentencing court and will not be

disturbed absent a manifest abuse of that discretion.               Commonwealth v.

McAfee, 894 A.2d 270, 275 (Pa.Super. 2004). No relief is due.

       We next address Appellant’s allegation that the trial court did not

consider all relevant factors in imposing an aggravated range sentence.

Appellant    argues     that   the    trial    judge   did    not   consider   mitigating

circumstances, including Appellant’s lack of criminal history, his age, his

cooperation, and remorse.             However, Appellant did not object at the

sentencing hearing nor file post-sentence motions.5 Thus, even though the

trial court addressed the claim in its Pa.R.A.P. Rule 1925(a) opinion, it is

waived. Commonwealth v. Tejada, 107 A.3d 788, 789 (Pa.Super. 2015)

(finding defendant’s challenge to discretionary aspects of sentencing claim


____________________________________________


5
     The trial court informed Appellant of his post-sentence motion rights at
the conclusion of both the April 29, 2015 sentencing and the August 11,
2015 hearing. N.T. Sentencing, 4/29/15, at 59-60; N.T. SVP Hearing,
8/11/15, at 105-06




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J-S24028-16



waived even though raised in Pa.R.A.P. Rule 1925(b) statement and

addressed by trial court).

      Even if preserved, the issue lacks merit. A review of the record shows

the sentencing court weighed mitigating factors.

      I am going to impose state incarceration. The offense to me is
      far more serious than being served in a county prison. It’s
      difficult because this defendant, there are many good things
      about him.     His service, military for years.  He served in
      Viet[nam], he worked for PennDot for twenty, twenty-five years.
      In other ways, he has been a good family person, he’s helped a
      lot of people.

      But unfortunately, there’s a dark side here that I don’t think he
      is being completely honest about. I do not think that the one
      incident where he was particularly candid with [E.C.] was one
      where he was almost caught red-handed, the very same time
      that the conduct occurred. Where he was not caught red-
      handed, he still [sic] in denial about [S.C.].

      And although I won’t consider the ARD case a conviction, I think
      there was some relevance to it. I did look at a statement he
      made to the Assessment Board and he blamed that one on, on
      the youngster, Tricia, that she was out to get him because he
      made some comments about her sexual life that she was angry
      about.

      So no I don’t see that it is a situation where [Appellant] is just
      coming clean and saying I’ve got this problem and I am going to
      be completely candid about it. And that does create a concern
      for the court in the future.

      When you look at all the information, I think he is a serial sex
      offender and that’s sad to say because there are many good
      qualities about him but unfortunately that is what I call the dark
      side.

N.T. Sentencing, 4/29/15, at 56-57. Where, as here, the trial court had the

benefit of a presentence report, considered the requirements of 42 Pa.C.S.A.

                                    - 11 -
J-S24028-16



§ 9721(b), and thoroughly explained the reasons for the sentence, we find

no abuse of discretion.     See Commonwealth v. Roberts, 133 A.3d 759,

774-75 (Pa.Super. 2016).

         Finally, Appellant attacks his SVP designation. Appellant’s brief at 14.

First,    Appellant   maintains   the   Commonwealth’s    expert,   Paula   Brust,

improperly relied on a pattern of abusing S.C. in formulating a diagnosis.

Id. at 17-18. Appellant states these facts are not in the certified record, as

Appellant pled guilty to only one incident of molesting S.C.

         [Ms. Brust] found that Appellant suffers from a mental illness,
         mental disability or mental abnormality based upon the fact that
         the criminal complaint alleges that over a period of at least six
         (6) months, recurrent intense sexually browsing fantasies,
         sexual urges, or behaviors involving sexual activity with a
         prepubescent child. However, although the original criminal
         complaint made these allegations the Appellant was only
         charged with one count on the formal information filed in the
         Court of Common Pleas and only admitted to and pleaded guilty
         to the one count of the information. Yet on the stand while
         testifying Ms. Brust made it clear that the six (6) month period
         of alleged sexual assault on the second victim met the criteria
         for finding mental abnormality to establish a sexual violent
         predatory behavior. She alleges on page 8 of her March 31,
         2015 assessment that Appellant took advantage of the
         opportunities to be in a dark location (movies) to assault his
         granddaughter. The evidence to support these allegations are
         not in the record.

Id. at 17. This argument does not attack the sufficiency of the evidence;

rather, Appellant is arguing these facts should not have been considered by

the SVP assessor. However, this assertion is waived since Appellant failed to




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J-S24028-16



object to the report’s admission into evidence. 6         “Having failed to raise an

objection before the trial court, [appellant] cannot now complain that the

trial court erred in admitting the evidence, thus such information is properly

before this Court when determining the sufficiency of the evidence

supporting an SVP determination.”              Commonwealth v. Baker, 24 A.3d

1006, 1034 (Pa.Super. 2011), aff’d 78 A.3d 1044 (Pa. 2013). Furthermore,

Appellant    fails   to   recognize     the    criminal   information’s   sole   count

encompassed the date range May 8, 2012 to May 18, 2014.

       Appellant next contends that the trial court erred in not crediting the

testimony of Appellant’s expert, Dr. Bruce Chambers.             This allegation was

set forth in the Pa.R.A.P. 1925(b) statement but not in a post-sentence

motion. “We discern no basis on which to distinguish our standard of review

on weight claims, whether challenging the weight of the evidence to support

a guilty verdict or a trial court's SVP determination. A defendant must put

the issue before the trial court in the first instance[.]” Commonwealth v.

Ratushny, 17 A.3d 1269, 1272 (Pa.Super. 2011). The claim is waived, but

is meritless in any event. The trial court’s opinion demonstrates the court

thoroughly weighed and rejected Dr. Chambers’s testimony.


____________________________________________


6
      Nor could Appellant plausibly object given his argument that he is
“very remorseful, very cooperative in pleading guilty immediately to both
cases not putting [sic] the victims through a trial[.]” Appellant’s brief at 13.



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J-S24028-16



     In weighing Dr. Chambers’ testimony this [c]ourt noted that he
     had not personally examined or evaluated [Appellant].

     Based upon the testimony offered on behalf of the [p]arties, the
     SVP assessment conducted by Ms. Brust on 31 March 2015, and
     the written critique of the assessment prepared by Dr.
     Chambers, this [c]ourt found that the Commonwealth had met
     its burden of showing by clear and convincing evidence that
     [Appellant] has been convicted of a sexually violent offense and
     has a mental abnormality or disorder which makes him likely to
     engage in predatory sexually violent offenses. In light of this
     finding, this [c]ourt then designated [Appellant] an SVP subject
     to the registration requirements of Pennsylvania law.

     In making its determination of [Appellant]’s SVP status, this
     [c]ourt compared and contrasted the assertions of Ms. Brust as
     reflected in her hearing testimony and her personal interaction
     with [Appellant] in conducting his SVP assessment, with the
     observations and opinions advanced by Dr. Chambers in his
     hearing testimony and written critique of Ms. Brust’s
     assessment. This comparison led this [c]ourt to the conclusion
     that, although both Ms. Brust and Dr. Chambers were both well
     qualified to evaluate [Appellant], the nature and weight of the
     evidence presented by the Commonwealth was sufficient to
     establish that [Appellant] is an SVP notwithstanding any
     assertion to the contrary advanced by Dr. Chambers.

     In reaching its conclusion, this [c]ourt noted, considered, and
     ultimately rejected Dr. Chambers’ expressed belief that, because
     psychological testing had not been performed upon [Appellant]
     as part of his SVP assessment, a valid determination of whether
     [Appellant] is an SVP could not be made.

     In recording its findings upon the record, this [c]ourt explained
     that it discounted Dr. Chambers’ assertions because it believed
     that Ms. Brust’s sexually violent predator assessment of
     [Appellant], being consistent with the record of the case,
     Pennsylvania statutory and decisional law, and the Diagnostic
     and Statistical Manual of Mental Disorders (DSM-V), carried
     more weight than Dr. Chambers’s assertions especially in light of
     the fact that Pennsylvania law does not require psychological
     testing of the kind advocated by Dr. Chambers in the instant
     matter in order for an individual to be designated an SVP.


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J-S24028-16



Trial Court Opinion, 11/4/15, at 8-10 (footnotes omitted). For the foregoing

reasons, we affirm judgment of sentence and SVP determination.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/2016




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