Com. v. Labar, B.

J-S38039-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

BLAKE LABAR :

:

Appellant : No. 1515 MDA 2019

Appeal from the Judgment of Sentence Entered July 30, 2019

In the Court of Common Pleas of Lackawanna County Criminal Division at

No(s): CP-35-CR-0002397-2018

BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 22, 2020

Appellant Blake Labar appeals the judgment of sentence entered by the

Court of Common Pleas of Lackawanna County after Appellant pled guilty to

Statutory Sexual Assault. Counsel has filed a petition to withdraw her

representation and a brief pursuant to Anders v. California, 386 U.S. 738,

87 S.Ct. 1396 (1967), and Commonwealth v. Santiago, 602 Pa. 159, 978

A.2d 349 (2009) (hereinafter “Anders brief”). After careful review, we grant

counsel’s petition to withdraw, but vacate the judgment of sentence and

remand for the limited purpose of the trial court correcting its sentencing

order.

____________________________________________

* Former Justice specially assigned to the Superior Court.

J-S38039-20

On December 20, 2018, Appellant was charged with Statutory Sexual

Assault, Involuntary Deviate Sexual Intercourse, Indecent Assault, and

Unlawful Contact with a Minor.1 The charges were based on the report of a

fifteen-year-old minor (“the victim”), who asserted that she had a sexual

relationship with Appellant from May 2018 to August 2018.

The victim told police that Appellant, whom she considered her “step-

uncle,” would meet with her when her mother worked late hours. Affidavit of

Probable Cause, at 1. The victim indicated that Appellant drove her to lakes

and parks to look at the stars, told her he loved her, and then proceeded to

have sexual intercourse with her in his car. Id. The victim’s relationship with

Appellant ended when her mother came home early one night from work in

late August and found the victim and Appellant spending time together at 1:00

a.m. Id. When confronted by her mother, the victim initially denied having

a relationship with Appellant, but later told her mother the truth. Id.

On October 26, 2018, Appellant met with Scranton police officers,

agreed to waive his Miranda rights, submitted to an interview without an

attorney. Appellant admitted to having sex with the victim on “a number of

occasions” after she had “come on to him.” Id. Appellant conceded to having

a sexual relationship with the victim, who was 15 at the time and Appellant

was 28 years old. Id.

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1 18 Pa.C.S.A. § 3122.1(b), § 3123(a)(7), § 3126(a)(8), and § 6318(a)(1),

respectively.

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On February 14, 2019, Appellant pled guilty to one count of Statutory

Sexual Assault, which was graded as a felony of the first degree as Appellant

admitted that he had “engage[d] in sexual intercourse with a complainant

under the age of 16 and that person is 11 or more years old than the

complainant and the complainant and the person are not married to each

other.” 18 Pa.C.S.A. § 3122.1(b). The prosecution agreed not to pursue the

remaining charges. At his plea hearing, Appellant acknowledged on the record

that he was pleading guilty to a Tier III offense under the Sexual Offender

Registration and Notification Act (“SORNA”), which required lifetime

registration as a sexual offender.

On July 30, 2019, the trial court sentenced Appellant to three to six

years’ incarceration to be followed by three years’ probation.2 As Appellant

had a prior record score of zero and the offense gravity score for first-degree

felony Statutory Sexual Assault is nine, Appellant’s sentence in this case fell

in the aggravated range of the sentencing guidelines. Appellant was deemed

not to be a sexually violent predator.

On August 2, 2019, Appellant filed a motion for the reconsideration of

his sentence. Appellant claimed that the trial court improperly considered his

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2 As Appellant was on probation at the time of the criminal conduct in this

case, Appellant stipulated that his assault of the victim was a probation

violation at docket number 16 CR 2397. The trial court revoked his probation

and resentenced Appellant on this charge to one to two years’ imprisonment,

which was set to run consecutively to the sentence in this case. Appellant

does not challenge the propriety of his probation revocation or sentence at

docket 16 CR 2397.

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age as an aggravating factor when the “standard range suggested in the Pre-

sentence investigation acknowledged the age difference between [Appellant]

and the victim.” Motion for Reconsideration, 8/2/19, at 2. Appellant also

indicated that the trial court failed to consider various mitigating factors, such

as his military service, mental health issues, and the recent loss of his wife to

cancer. On August 13, 2019, the trial court denied the motion for

reconsideration.

Appellant filed a timely appeal and complied with the trial court’s

direction to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). Thereafter, counsel filed an Anders brief and

a petition to withdraw.

Appellant raises the following issues on appeal:

A. Whether the sentencing court erred and committed an abuse

of discretion when it imposed a sentence in the aggravated

range where there were no aggravating circumstances, and

where the difference in the parties’ ages is already an element

of the offense and is already taken into consideration by the

statute?

B. Whether the sentence imposed was harsh and excessive in

light of all the factors presented.

Appellant’s Brief, at 4.

Before reaching the merits of the appeal, we must first evaluate

counsel’s request to withdraw her representation. Commonwealth v.

Washington, 63 A.3d 797, 800 (Pa.Super. 2013); see also Commonwealth

v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005) (stating, “[w]hen faced with a

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purported Anders brief, this Court may not review the merits of the

underlying issues without first passing on the request to withdraw”) (citation

omitted).

There are procedural and briefing requirements imposed upon an

attorney who seeks to withdraw on appeal pursuant to which counsel must:

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) furnish a copy

of the brief to the defendant; and 3) advise the defendant that he

or she has the right to retain private counsel or raise additional

arguments that the defendant deems worthy of the court's

attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc) (citation omitted). We further review counsel's Anders brief for

compliance with the requirements set forth in Commonwealth v. Santiago,

602 Pa. 159, 978 A.2d 349 (2009):

[W]e hold that in 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.

Id. at 178-79, 978 A.2d at 361.

In this case, counsel’s brief and petition substantially comply with the

technical requirements of Anders and Santiago. Moreover, counsel has

provided this Court with a copy of the letter, which she sent to Appellant

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advising him of his right to retain new counsel or to proceed pro se with his

case to raise any points that he deems worthy of this Court's attention. See

Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super. 2005). Therefore,

we proceed to examine the issues counsel identified in the Anders brief and

then conduct “a full examination of all the proceedings, to decide whether the

case is wholly frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 1195

(Pa.Super. 2018) (en banc) (quotation omitted).

As noted above, Appellant challenges the trial court’s discretion in

imposing his sentence. In reviewing his claims, we are cognizant that

Appellant must comply with the following requirements:

Challenges to the discretionary aspects of sentencing do not

entitle an appellant to an appeal as of right. Prior to reaching the

merits of a discretionary sentencing issue[, 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).

When appealing the discretionary aspects of a sentence, an

appellant must invoke the appellate court's jurisdiction by

including in his brief a separate concise statement demonstrating

that there is a substantial question as to the appropriateness of

the sentence under the Sentencing Code. The requirement that an

appellant separately set forth the reasons relied upon for

allowance of appeal furthers the purpose evident in the

Sentencing Code as a whole of limiting any challenges to the trial

court's evaluation of the multitude of factors impinging on the

sentencing decision to exceptional cases.

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Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa.Super. 2018)

(quotation marks, some citations, and emphasis omitted).

In this case, Appellant filed a timely notice of appeal and filed a post-

sentence motion, which alleged that the trial court improperly considered the

age difference between himself and the victim and did not consider various

mitigating favors. Appellant also included a Rule 2119(f) statement in his

brief, in which Appellant did not allege that the trial court failed to consider

mitigating factors. We turn to the next requirement: whether Appellant raised

a substantial question meriting our discretionary review. This Court has

recognized that:

[t]he determination of what constitutes a substantial question

must be evaluated on a case-by-case basis. A substantial question

exists only 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.

Id. (quotation marks and some citations omitted).

Appellant asserts that the trial court improperly considered the age

difference between himself and the victim, which Appellant asserts is already

an element of the offense. This Court has held that an appellant raises a

substantial question for review in claiming that the trial court improperly based

an aggravated range sentence upon a factor that constitutes an element of

the offense. Commonwealth v. Fullin, 892 A.2d 843, 848 (Pa.Super. 2006).

As such, we may proceed to review the merits of Appellant’s argument.

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In reviewing a challenge to the trial court’s sentencing 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. In this context, an abuse

of discretion is not shown merely by an error in judgment. Rather,

the appellant must establish, by reference to the record, that the

sentencing court ignored or misapplied the law, exercised its

judgment for reasons of partiality, prejudice, bias or ill will, or

arrived at a manifestly unreasonable decision.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa.Super. 2015)

(quotation omitted).

Moreover, “[a]lthough Pennsylvania’s system stands for individualized

sentencing, the court is not required to impose the ‘minimum possible’

confinement.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super.

2010) (citation omitted). In reviewing the sentence, an appellate court shall

have regard for: (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; and (4)

the guidelines promulgated by the commission. See 42 Pa.C.S.A. §

9781(d)(1)–(4). 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).

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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)

(emphasis in original). However, “[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

improperly has 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

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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

on the extreme nature of the harm to the victim. Id. at 849.

In addition, “[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.” Commonwealth v. Bonner, 135

A.3d 592, 605 (Pa.Super. 2016) (original brackets and citation omitted).

Even assuming that it was impermissible for the trial court to consider

the age difference between Appellant and the victim when fashioning

Appellant’s sentence, the trial court set forth additional, permissible reasons

for sentencing Appellant to an aggravated range sentence. The trial court

indicated that it had thoroughly reviewed the presentence report and was

troubled by the fact that Appellant was “almost double” the victim’s age and

took advantage of the familial relationship he had with the victim in order to

gain access to her and win her trust. N.T. Sentencing, 7/30/19, at 5. The

trial court also emphasized that Appellant repeatedly sexually assaulted the

victim over a period of time despite knowing that his behavior was

inappropriate. Id.

Further, the trial court indicated his “unique familiarity” with Appellant

as he had supervised him in Veteran’s Court program as a condition of his

sentence on docket 16 CR 1475 and knew of his “criminal history involving

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females and domestic relationships.” T.C.O., 4/24/20, at 8. The trial court

emphasized that Appellant had committed the instant offenses while on

probation, which the trial judge found was evidence of Appellant’s inability to

rehabilitate while on supervision. Id.

Given the trial court's use of other permissible factors, it did not abuse

its discretion in considering the age difference between Appellant and the

victim when fashioning his sentence. See 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). As such, we find this claim to be meritless.

In his appellate brief, we also note that Appellant argues for the first

time on appeal that (1) the sentence was excessive and (2) that the trial court

improperly considered that he sexually abused the victim on multiple

occasions, when he only pled guilty to one count of statutory sexual assault

based on the fact that he engaged in sexual intercourse with the victim on

May 1, 2018.

However, Appellant did not raise these claims in his post-sentence

motion, which only alleged that the trial court’s improperly considered the age

difference between Appellant and the victim and failed to consider various

mitigating factors. This Court has explained:

[t]o properly preserve an issue challenging the discretionary

aspects of sentencing, a defendant must object and request a

remedy at sentencing, or raise the challenge in a post-sentence

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motion. Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa.

Super. 2004). The Pennsylvania Rules of Criminal Procedure

specifically caution defendants that, when filing post-sentence

motions, “[a]ll requests for relief from the trial court shall be

stated with specificity and particularity[.]” Pa.R.Crim.P.

720(B)(1)(a). See Commonwealth v. Tejada, 107 A.3d 788,

798-99 (Pa. Super. 2015) (noting that the trial court must be

given the opportunity to reconsider its sentence either

at sentencing or in a post-sentence motion). See, e.g.,

Commonwealth v. Mann, 820 A.2d 788, 793-94 (Pa. Super.

2003) (concluding that the defendant waived his discretionary

aspects of sentencing claim regarding the sentencing court's

failure to state the reasons for his sentence on the record where

the defendant's post-sentence motion only argued that his

sentence was unduly severe and that the trial court abused its

discretion under the sentencing code).

Commonwealth v. Clary, 226 A.3d 571, 579 (Pa.Super. 2020).3 As such,

we find that these specific issues are waived. After examining the issues

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3 This Court has held that a sentencing court is permitted to consider

unprosecuted criminal conduct in certain circumstances:

Not only does the caselaw authorize a sentencing court to consider

unprosecuted criminal conduct, the sentencing guidelines

essentially mandate such consideration when a prior 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” (emphasis added).

[However,] uncharged criminal conduct may not be used for

sentencing purposes when the record is devoid of the necessary

evidentiary link between the defendant and the uncharged prior

conduct.

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

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contained in the Anders brief, we agree with counsel’s assessment that

Appellant’s sentencing challenge is wholly frivolous.

However, after conducting a full examination of the record, we note an

error in the sentencing order which includes the following language relating to

Appellant’s registration obligations under SORNA: “TIER 3 REG FOR 25YRS.”

Sentencing order, 7/30/19, at 1. This designation was clearly made in error

as SORNA provides that Tier II offenses require 25-year registration and Tier

III offenses require lifetime registration. 42 Pa.C.S.A. § 9799.15(a)(2)-(3).

We find it necessary to remand for the correction of the sentencing order

as “[i]n Pennsylvania, the text of the sentencing order, and not the statements

a trial court makes about a defendant's sentence, is determinative of the

court's sentencing intentions and the sentence imposed.” Commonwealth

v. Sarvey, 199 A.3d 436, 451–52 (Pa.Super. 2018) (quotation omitted).

It is well-settled in Pennsylvania that a trial court has the

inherent, common-law authority to correct “clear clerical errors”

in its orders. A trial court maintains this authority even after the

expiration of the 30 day time limitation set forth in 42 Pa.C.S.A. §

5505 for the modification of orders.

***

[However,] an alleged error must qualify as a clear clerical

error (or a patent and obvious mistake) in order to be amenable

to correction. In discussing a trial court's authority to correct

illegal sentences, our Supreme Court has stated that it is “the

obviousness of the illegality, rather than the illegality itself, that

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While Appellant’s plea was only related to one instance of sexual assault

of the victim, Appellant admitted to having a sexual relationship with the

victim over several months in which he had intercourse with the fifteen year

old girl on numerous occasions. Appellant’s admission to a pattern of sexual

assault was corroborated by the victim in her forensic interview.

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triggers the court's inherent power.” [Commonwealth v.]

Holmes, [593 Pa. 601], 933 A.2d [57, 666 (2007).]

***

As a matter of general guidance, our Supreme Court has

sanctioned the use of the inherent authority in cases that “involve

clear errors in the imposition of sentences that were incompatible

with the record or black letter law[.]” Id. (emphasis added).

Commonwealth v. Borrin, 12 A.3d 466, 471–73 (Pa.Super. 2011), aff'd,

622 Pa. 422, 80 A.3d 1219 (2013) (some citations omitted).

In this case, the trial court’s sentencing order contains a clear clerical

error in stating that Appellant is a Tier III offender required to register under

SORNA for twenty-five years. At the plea hearing, Appellant pled guilty to

statutory sexual assault graded as a first-degree felony under 18 Pa.C.S.A. §

3122.1(b), which Appellant acknowledged was a Tier III offense that requires

lifetime registration. N.T. Plea, 2/14/19, at 3, 5. The trial court’s sentencing

order is incompatible with SORNA’s provisions that explicitly designate

statutory sexual assault under 18 Pa.C.S.A. § 3122.1 as a Tier III offense that

requires lifetime registration. 42 Pa.C.S.A. §§ 9799.14(d)(3); 42 Pa.C.S.A. §

9799.15(a)(3). Therefore, we vacate the judgment of sentence and remand

for correction.

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Judgment of sentence vacated. Case remanded for correction of the

sentencing order. Petition to withdraw as counsel granted. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/22/2020

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