Commonwealth v. Feucht

955 A.2d 377, 2008 Pa. Super. 176, 2008 Pa. Super. LEXIS 2043
CourtSuperior Court of Pennsylvania
DecidedAugust 4, 2008
Docket1478, 1479 WDA 2007
StatusPublished
Cited by175 cases

This text of 955 A.2d 377 (Commonwealth v. Feucht) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Feucht, 955 A.2d 377, 2008 Pa. Super. 176, 2008 Pa. Super. LEXIS 2043 (Pa. Ct. App. 2008).

Opinion

OPINION BY

COLVILLE, J.:

¶ 1 This case is a direct appeal from judgment of sentence. Appellant claims there was insufficient evidence to support his classification as a sexually violent predator (“SVP”). Additionally, he seeks permission to appeal the discretionary aspects of sentence. In this latter claim, Appellant contends the court abused its discretion by imposing a sentence that was outside the sentencing guidelines and unreasonable. We affirm.

Facts

¶ 2 Appellant was charged with various sex crimes, including indecent assault under 18 Pa.C.S.A. § 3126(a)(7). The information alleged that, from on or about 2004 through March 2006, he engaged in indecent contact with Victim, who was under thirteen years of age. Victim was Appellant’s stepdaughter.

¶ 3 The information also charged Appellant with endangering the welfare of children (“EWOC”) under 18 Pa.C.S.A. § 4304(a), (b) by, inter alia, committing the aforesaid indecent assault.

¶ 4 Appellant pled guilty to indecent assault as a first-degree misdemeanor and EWOC as a third-degree felony. During sentencing, Appellant’s counsel spoke at some length on Appellant’s behalf, addressing such facts and issues as Appellant’s acceptance of responsibility, letters of support submitted on his behalf, his age, work history and lack of criminal record, his struggles with depression and alcoholism, and his willingness to engage in sex-offender treatment. Appellant also addressed the court, apologizing for his actions.

5 The court entertained the Commonwealth’s recommendations as to sentence and, further, accepted statements from Victim’s mother, who spoke of Victim’s academic, physical and emotional problems following the incidents in question.

¶6 For EWOC, the upper end of the standard range of Appellant’s sentencing guidelines was twelve months. On that count, the court imposed a sentence of not less than twelve and not more than sixty months’ imprisonment. For indecent assault, Appellant’s minimum incarceration term in the aggravated range of the guidelines was twelve months. On that charge, the court departed from the guidelines and imposed imprisonment of not less than twenty-four and not more than sixty months. The court made the sentences consecutive.

¶ 7 Prior to sentencing, the court had ordered the State Sexual Offenders Assessment Board (“the Board”) to prepare an assessment to determine if Appellant should be classified an SVP, and the Board did so. Thereafter, at the sentencing/SVP hearing, the court received evidence on the SVP issue, including a report and testimony from a Board representative. The court ultimately designated Appellant an SVP.

*380 ¶ 8 Appellant filed post-sentence motions challenging the SVP determination and the discretionary aspects of his sentence. The court denied the motions; Appellant filed this timely appeal.

SVP: Sufficiency

¶ 9 SVP Designation. A brief review of the SVP process will be helpful. If a person is convicted of one or more of the sexually violent offenses set forth in 42 Pa.C.S.A. § 9795.1, the court shall order the individual to be assessed by the Board. 42 Pa.C.S.A. § 9795.4(a). In accordance with the time limits set forth in Section 9795.4, the Board then prepares an assessment report and submits it to the Commonwealth. Id. at (b), (d). Upon praecipe from the Commonwealth, the court holds a hearing at which the Commonwealth must prove by clear and convincing evidence that the SVP designation is appropriate. Id. at (e). The clear and convincing standard means the evidence was so clear, direct, weighty, and convincing that the trier of fact could come to a clear conviction, without hesitating, concerning the facts at issue. Commonwealth v. Meals, 590 Pa. 110, 912 A.2d 213, 219 (2006).

¶ 10 The Legislature has defined an SVP in the following way:

A person who has been convicted of a sexually violent offense as set forth in [42 Pa.C.S.A. § ]9795.1 (relating to registration) and who is determined to be a sexually violent predator under [42 Pa. C.S.A. § 19795.4 (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.

Among the sexually violent offenses falling under 42 Pa.C.S.A. § 9795.1 is indecent assault under 18 Pa.C.S.A. § 3126(a)(7).

¶ 11 Under Section 9795.4, the factors relating to assessments are discussed as follows:

(b) Assessment. — Upon receipt from the court of an order for an assessment, a member of the [Bloard as designated by the administrative officer of the [B]oard shall conduct an assessment of the individual to determine if the individual should be classified as a sexually violent predator. The [B]oard shall establish standards for evaluations and for evaluators conducting the assessments. An assessment shall include, but not be limited to, an examination of the following:
(1)Facts of the current offense, including:
(1) Whether the offense involved multiple victims.
(ii) Whether the individual exceeded the means necessary to achieve the offense.
(iii) The nature of the sexual contact with the victim.
(iv) Relationship of the individual to the victim.
(v) Age of the victim.
(vi) Whether the offense included a display of unusual cruelty by the individual during the commission of the crime.
(vii) The mental capacity of the victim.
(2) Prior offense history, including:
(i) The individual’s prior criminal record.
(ii) Whether the individual completed any prior sentences.
(iii) Whether the individual participated in available programs for sexual offenders.
(3) Characteristics of the individual, including:
(i) Age of the individual.
*381 (ii) Use of illegal drugs by the individual.
(iii) Any mental illness, mental disability or mental abnormality.
(iv) Behavioral characteristics that contribute to the individual’s conduct.
(4) Factors that are supported in a sexual offender assessment field as criteria reasonably related to the risk of reof-fense.

¶ 12 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.

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Bluebook (online)
955 A.2d 377, 2008 Pa. Super. 176, 2008 Pa. Super. LEXIS 2043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-feucht-pasuperct-2008.