J-S73021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LANNING VAGTS

                            Appellant                  No. 379 MDA 2014


        Appeal from the Judgment of Sentence of November 26, 2013
              In the Court of Common Pleas of Luzerne County
             Criminal Division at No.: CP-40-CR-0003793-2012


BEFORE: BOWES, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.:                         FILED DECEMBER 19, 2014

       Lanning Vagts appeals from the judgment of sentence entered

November 26, 2013.           Counsel for Vagts has petitioned to withdraw as

counsel pursuant to Anders v. California, 386 U.S. 738 (1967), on the

ground that Vagt’s issue on appeal is wholly frivolous.1         We grant the

petition to withdraw, and we affirm the judgment of sentence.

       The trial court set forth the background of this case as follows:

       On February 14, 2013, [Vagts] entered a plea of guilty to the
       offense of incest.[2] [Vagts] acknowledged during the time
       frame of August 1, 2003 and March 31, 2004, he engaged in sex
       with his biological daughter, a juvenile. The [c]ourt directed
____________________________________________


1
     See also Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981),
abrogated in part by Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009).
2
       18 Pa.C.S.A. § 4302.
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      [Vagts’] evaluation for sexually violent predator [(“SVP”)] status
      and a hearing was conducted on November 19, 2013 at the
      conclusion of which [the court] indicated the matter would be
      reconvened on November 27, 2013 at which time a
      determination would be announced regarding SVP status and
      sentence imposed. At that time, the [court] determined [Vagts]
      was a sexually violent predator and imposed sentence [of not
      less than eighteen months nor more than one hundred twenty
      months’ incarceration with credit for time served].        A post
      sentence motion nunc pro tunc was denied on January 2, 2014.
      An appeal was filed on January 30, 2014 and an order issued
      pursuant to Pa.R.A.P. 1925(b) on January 31, 2014. Thereafter,
      on February 18, 2014, [the court] entered an order granting
      defense counsel[’]s request for an extension of time within which
      to file a concise statement of [e]rrors complained of on appeal.
      The concise statement was subsequently received on April 7,
      2014.

Trial Court Opinion (“T.C.O.”), 4/30/2014, at 1-2 (quotation marks and

record citations omitted).

      On September 4, 2014, counsel filed an Anders brief presenting an

issue that might arguably support an appeal. Counsel filed her petition to

withdraw as counsel on the same day, in which she states that, after a

conscientious examination of the record, she has determined that the appeal

would be wholly frivolous. See Petition for Leave to Withdraw as Counsel,

9/04/2014, at unnumbered page 1. Attached to the petition is a copy of her

letter to Vagts advising him of her desire to withdraw as counsel and Vagts’

right to retain new counsel or proceed with his appeal pro se, and providing

him with a copy of the Anders brief filed with this Court. See id. at Exhibit

“A”. Vagts did not respond to counsel’s petition to withdraw.

      [I]n the Anders brief that accompanies . . . 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

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      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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

      Anders counsel must also provide a copy of the Anders petition
      and brief to the appellant, advising the appellant of the right to
      retain new counsel, proceed pro se or raise any additional points
      worthy of this Court’s attention.

      If counsel does not fulfill the aforesaid technical requirements of
      Anders, this Court will deny the petition to withdraw and
      remand the case with appropriate instructions (e.g., directing
      counsel either to comply with Anders or file an advocate’s brief
      on Appellant’s behalf). By contrast, if counsel’s petition and
      brief satisfy Anders, we will then undertake our own review of
      the appeal to determine if it is wholly frivolous. If the appeal is
      frivolous, we will grant the withdrawal petition and affirm the
      judgment of sentence.        However, if there are non-frivolous
      issues, we will deny the petition and remand for the filing of an
      advocate’s brief.
Commonwealth v. O’Malley, 957 A.2d 1265, 1266 (Pa. Super. 2008)

(citations omitted).

      In the instant case, counsel has complied with the Anders and

Santiago requirements.     She has submitted a brief that summarizes the

case and cites to the record, see Anders Brief at 2-6; refers to anything

that might arguably support the appeal, id. at 6-11; and sets forth her

reasoning and conclusion that the appeal is frivolous, id. at 11-12.        See

Santiago, 978 A.2d at 361. She has filed a petition to withdraw as counsel,

sent Vagts a letter advising him she found no non-frivolous issues, provided

Vagts with a copy of the Anders brief, and notified Vagts of his right to

retain new counsel or proceed pro se.      Vagts has not responded.     “Once



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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.”

Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (citation

omitted).

      Counsel identifies one potential issue for our review in her Anders

brief: “Whether the trial court erred by finding that Mr. Vagts is a sexually

violent predator where the Commonwealth failed to present clear and

convincing evidence sufficient to demonstrate that he is likely to engage in

predatory sexually violent offenses?” Anders Brief at 2.

      In the Anders brief, counsel asserts as follows: “Mr. Vagts challenges

the sufficiency of the evidence that was used to support the trial court’s

conclusion that Mr. Vagts is a sexually violent predator, as statutorily

defined.    Specifically, he asserts that there was insufficient evidence

presented by the Commonwealth of his likelihood of reoffending.” Id. at 6-

7. We agree with counsel that the issue is without merit.

      Our standard for reviewing a sufficiency challenge to an SVP

determination is the following:

      We do not weigh the evidence presented to the sentencing court
      and do not make credibility determinations. Instead, we view all
      the evidence and its reasonable inferences in a light most
      favorable to the Commonwealth.        We will disturb an SVP
      designation only if the Commonwealth did not present clear and
      convincing evidence to enable the court to find each element
      required by the SVP statutes.

Commonwealth v. Whanger, 30 A.3d 1212, 1215 (Pa. Super. 2011)

(citation omitted).

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        The determination of a defendant’s SVP status may only be
        made following an assessment by the [Sexual Offenders
        Assessment Board (“SOAB”)] and hearing before the trial
        court. In order to affirm an SVP designation, we, as a
        reviewing court, must be able to conclude that the fact-
        finder found clear and convincing evidence that the
        individual is a sexually violent predator. As with any
        sufficiency of the evidence claim, we view all the evidence
        and reasonable inferences therefrom in the light most
        favorable to the Commonwealth. We will reverse a trial
        court’s determination of SVP status only if the
        Commonwealth has not presented clear and convincing
        evidence that each element of the statute has been
        satisfied.

        The standard of proof governing the determination of SVP
        status, i.e., “clear and convincing evidence,” has been
        described as an “intermediate” test, which is more
        exacting than a preponderance of the evidence test, but
        less exacting than proof beyond a reasonable doubt.

                                *     *    *

        The clear and convincing standard requires evidence that
        is “so clear, direct, weighty, and convincing as to enable
        the [trier of fact] to come to a clear conviction, without
        hesitancy, of the truth of the precise facts [in] issue.”

     Commonwealth v. Fuentes, 991 A.2d 935, 941-42 (Pa. Super.
     2010) (en banc) (citations omitted).

     An SVP . . . is defined as follows:

        A person who has been convicted of a sexually violent
        offense as set forth in section 9795.1 (relating to
        registration) and who is determined to be a sexually
        violent predator under section 9795.4 (relating to
        assessments) due to a mental abnormality or personality
        disorder that makes the person likely to engage in
        predatory sexually violent offenses.

     42 Pa.C.S.A. § 9792.3




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          3
             Appellant does not dispute that he was convicted of a
          sexually violent offense.3

       Moreover:

          The process of determining SVP status is statutorily-
          mandated and well-defined. The triggering event is a
          conviction of one or more offenses specified in 42
          Pa.C.S.A. § 9795.1, which, in turn, prompts the trial court
          to order an SVP assessment by the SOAB. The Board’s
          administrative officer assigns the matter to one of the
          Board’s members, all of whom are “experts in the field of
          behavior and treatment of sexual offenders.” 42 Pa.C.S.A.
          § 9799.3. At the core of the expert’s assessment is a
          detailed list of factors, which are mandatory and are
          designed as criteria by which the likelihood of reoffense
          may be gauged.

       Fuentes, 991 A.2d at 942 (citations omitted). According to the
       statute:

          An assessment shall include, but not be limited to, an
          examination of the following:

                                      *        *   *

          (4) Factors that are supported in a sexual offender
          assessment field as criteria reasonably related to the risk
          of reoffense.

       42 Pa.C.S.A. § 9795.4(b).

       This Court further summarized:

          The precise line of inquiry for the Board’s expert, as well as
          any other expert who testifies at an SVP hearing, is
          whether the defendant satisfied the definition of sexually
          violent predator set out in the statute, that is, whether he
          or she suffers from a mental abnormality or personality
____________________________________________


3
      Like the appellant in Commonwealth v. Morgan, 16 A.3d 1165 (Pa.
Super. 2011), Vagts does not challenge his conviction for a sexually violent
offense, but disputes the determination that he is a sexually violent
predator.



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         disorder that makes him or her more likely to engage in
         predatory sexually violent offenses. The salient inquiry to
         be made by the trial court is the identification of the
         impetus behind the commission of the crime and extent to
         which the offender is likely to reoffend.

         In this context, a “mental abnormality” is a “congenital or
         acquired condition of a person that affects the emotional or
         volitional capacity of the person in a manner that
         predisposes that person to the commission of criminal
         sexual acts to a degree that makes the person a menace
         to the health and safety of other persons.” 42 Pa.C.S.A.
         § 9792.      Moreover, “predatory” conduct, which is
         indispensable to the designation, is defined as an “act
         directed at a stranger or at a person with whom a
         relationship has been initiated, maintained or promoted, in
         whole or in part, in order to facilitate or support
         victimization.” [42 Pa.C.S.A. § 9792].

      Fuentes, 991 A.2d at 943.

Commonwealth v. Morgan, 16 A.3d 1165, 1168-69 (Pa. Super. 2011).

      At the SVP hearing, SVP board member Paula Brust, a psychologist

and counselor, testified that she performed a court-ordered evaluation of

Vagts and prepared a report of her findings to determine if he met the

criteria for an SVP. See Notes of Testimony (“N.T.”), 11/19/2014, at 11-12.

Pursuant to that report, she testified as follows:

      The victim in this case was Mr. Vagts’ biological daughter, and
      according to the victim he began to sexually assault her when
      they lived in New York starting from age eight through when
      they moved to Pennsylvania ending at age fifteen when she
      moved out of the home with Mr. Vagts who had attained custody
      of her when she was approximately nine years old. And during
      that time, beginning when she was eight years old according to
      the victim, her father would sexually assault her regularly,
      several times a week for years. And it especially increased, she
      stated, when they moved to Hazle Township and Mr. Vagts
      would assault his daughter if she wanted to go out, hang with
      her friends. He would force her to have sexual contact with him
      repeatedly over the course of an eight-year period.

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Id. at 20-21. With regard to the factor at issue, likelihood of reoffense, 42

Pa.C.S.A. § 9795.4(b)(4), she stated:

      Mr. Vagts has a sexually deviant pathway to offending. He has
      assaulted a child over a long span of time. His disorder of
      pedophilia and paraphilia not otherwise specified predisposes
      him toward committing sexual offenses and those disorders
      cause him to have internal drive that makes it likely he will
      engage in predatory sexual behavior.

Id. at 31. Thus, she concluded “within a reasonable degree of professional

certainty” in her report and at the hearing that Vagts was likely to reoffend.

Id. at 33.

      Conversely, Dr. Timothy Foley, an expert witness for Vagts in the field

of sexually violent predator treatment and evaluation, testified that he

disagreed with the assessment that Vagts was likely to reoffend because

“there is no use of an actuarial tool” in the SVP report. Id. at 65. However,

he also conceded that “[t]he actuarial tools are not perfect” and that the

SOAB “precludes the use of actuarial tools in SVP determinations.”       Id. at

65, 73.      Thus, the trial court found Ms. Brust’s testimony credible, and

“[w]hile [it] did not find Dr. Foley testified in an unprofessional manner or

lacked credibility, [the court was] unpersuaded in his use of a statistical tool

in arriving at the conclusion that [Vagts] would not be likely to reoffend.”

T.C.O. at 13; see also Whanger, 30 A.3d at 1215.

      Therefore, we conclude that the Commonwealth presented clear and

convincing evidence to enable the court to find the element of likelihood of

reoffense required by the SVP statutes at 42 Pa.C.S.A. § 9795.4(b)(4).

Morgan, 16 A.3d at 1168-69.         Accordingly, Vagts’ challenge to his SVP

determination on this ground is frivolous.    Furthermore, upon independent


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review of the record, we find no other non-frivolous basis for appeal and

conclude that Vagts’ appeal is wholly frivolous. O’Malley, supra at 1266.

     Judgment of sentence affirmed.      Petition for leave to withdraw as

counsel granted.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2014




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