Commonwealth v. Ortiz

160 A.3d 230, 2017 Pa. Super. 113, 2017 WL 1407396, 2017 Pa. Super. LEXIS 274
CourtSuperior Court of Pennsylvania
DecidedApril 20, 2017
DocketNo. 253 WDA 2016
StatusPublished
Cited by7 cases

This text of 160 A.3d 230 (Commonwealth v. Ortiz) 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. Ortiz, 160 A.3d 230, 2017 Pa. Super. 113, 2017 WL 1407396, 2017 Pa. Super. LEXIS 274 (Pa. Ct. App. 2017).

Opinion

OPINION BY

BENDER, P.J.E.:

Appellant, Tex Xavier Ortiz, appeals from the judgment of sentence of an aggregate term of 8-22 years’ incarceration, imposed following his convictions for kidnapping of a minor and interference with custody of a child (hereinafter, “ICC”). Appellant contends that there was insufficient evidence to support his kidnapping conviction and, as a result, we must reverse the order subjecting him to a lifetime registration requirement under SOR-NA.1 Alternatively, Appellant challenges the discretionary aspects of his sentence. After careful review, we reverse Appellant’s conviction for kidnapping as well as the corresponding SORNA order, vacate Appellant’s sentence for ICC, and remand for resentencing.

The evidence presented at trial established that [Victim], born [in July of] 2012 (two and a half years of age at the time of the events in question), is the daughter of Larae Clark and [Appel[232]*232lant]. On October 20, 2014, Larae Clark passed away and [Appellant] became a single father to [Victim]. After Larae’s death, her mother Lori Clark ([Victim]’s grandmother) cared for [Victim] several days a week. In December, 2014, Lori Clark became concerned for [Victim] for various reasons including [Appellant]’s placement on electronic monitoring on an unrelated parole matter and the presence of drug paraphernalia in his home as observed by [Appellant’s parole officer and Ms. Clark’s ex-husband. On December 16, 2014, Ms. Clark filed a Petition for Custody in the Family Division of this Court and went to [Appellant’s home with her niece, LaToya McClen-don, the same day[,] to give him notice of the upcoming hearing on December 19, 2014. When [Appellant] was not home, Ms. McClendon took the custody [p]etition and returned to [Appellant’s] home the next day, December 17, 2014, when she saw and spoke to [Appellant] and served him with a copy of the custody [petition.
On December 18, 2014, [Appellant] texted Ms. Clark and told her that [Victim] had already been taken to New York.
Despite having been given notice of the hearing by Ms. McClendon, [Appellant] did not appear at the custody hearing on December 19, 2014. At that hearing, Judge Tranquilli of the Family Division of this Court entered an [order] granting Ms. Clark interim primary physical and legal custody of [Victim]. Following the entry of the [o]rder, Ms. Clark took [it] to the Wilkinsburg Police Department, where [Appellant] lives[,] and then attempted to locate [Appellant] and [Victim] on her own. She texted [Appellant’s sister, Jennifer, who lives in New York, and asked her to tell [Appellant] that the custody order was in place and to send [Victim] back. On December 22, 2014, when Ms. Clark had not received a response, she contacted the Penn Hills Police Department where she lived, and asked for their assistance. Officer Patrick Ford of the Penn Hills Police Department called [Appellant] multiple times and left a voice mail regarding the custody order. [Appellant] called Officer Ford back and told him that [Victim] was safe' in New York, that no one was going to get her[,] and that he didn’t care about the custody order. The same day, Detective Hamlin[,] from the Wilkinsburg Police Department[,] forced entry into [Appellant’s home and[,] while no one was there, he found signs of recent activity including lights and a television on and a computer with the internet up. [Appellant’s electronic monitoring ankle bracelet had been cut off and was later found in the yard of a neighbor’s home.
Thereafter, the Allegheny County Child Abduction Response Team was activated with assistance from the FBI. On January 5, 2015, after an extensive investigation in Pennsylvania and New York, [Appellant] was located at a Residence at 146 Third Avenue in Altoona, Pennsylvania. The residence was surrounded by [more than 80 local and state police officers]. As the residence was near a school, the students were held inside the building. A hostage negotiator was able to make contact with [Appellant] and was eventually able to convince him to release [Victim] and surrender peacefully. [Victim] was taken to Children’s Hospital in Pittsburgh where she was found to be uninjured.

Trial Court Opinion, 9/8/16, at 2-4.

Based on these events, Appellant was charged with kidnapping of a minor, 18 Pa.C.S. § 2901(a.l)(2) (“kidnapping”); concealment of the whereabouts of a child, 18 Pa.C.S. § 2909; and ICC, 18 Pa.C.S. [233]*233§ 2904. Following a jury trial held on May 18-21, 2015, Appellant was found guilty of kidnapping and ICC, but not guilty of concealment of the whereabouts of a child. On September 14, 2015, the trial court sentenced Appellant to 6-18 years’ incarceration for the kidnapping offense, and a consecutive term of 2-4 years’ incarceration for ICC. Additionally, due to his kidnapping conviction, Appellant was ordered to comply with SORNA’s lifetime registration requirement. See 42 Pa.C.S. § 9799.15(a)(3) (“An individual convicted of a Tier III sexual offense shall register for the life of the individual.”); 42 Pa.C.S. § 9799.14(d)(1) (designating 18 Pa.C.S. § 2901(a.l) as a Tier III sexual offense).

Appellant filed a timely a post-sentence motion, which was denied by operation of law on January 19, 2016. Thereafter, Appellant filed a timely notice of appeal on February 18, 2016, and a timely, court-ordered Pa.R.A.P. 1925(b) statement on July 20, 2016.2 The trial court issued its Rule 1925(a) opinion on September 8,2016.

Appellant now presents the following questions for our review:

I.Was the evidence presented at trial insufficient to support the conviction of [kidnapping as [Appellant], [Victim’s] father, did not remove [Victim] in order to facilitate the commission of any felony or flight, he did not hold [Victim] for ransom, cause her injury, or terrorize [Victim]; rather, [Appellant] acted out of affection by taking his child away from [her] grandparents, in order to continue his custody of her? Is not the more appropriate crime in this instance [ICC]?
II. Is the [o]rder requiring lifetime registration as a sex offender under SORNA erroneous in that, assuming the [kidnapping conviction is reversed, [Appellant] would not be a Tier [III] offender?
III. Is the sentence imposed manifestly excessive and an abuse of the trial court’s discretion in that [Appellant’s sentence was either above the guideline ranges or in the aggravated range of the guidelines and no contemporaneous written statement for sentencing in the aggravated range or sentencing outside the guidelines was given, nor was [Appellant] informed of the guideline ranges in open court; moreover, the sentencing court failed to comport with the dictates of the Sentencing Code, 42 Pa.C.S. § 9721(b)[,] in considering not only the gravity of the offense but also the protection of the public and the rehabilitative needs of [Appellant]?

Appellant’s Brief at 6.

We begin with Appellant’s sufficiency challenge. Appellant argues that the Commonwealth failed to prove by sufficient evidence the mens rea, element of kidnapping applicable in this case. Our standard of review for addressing sufficiency-of-the-evidence claims is well-settled:

A claim challenging the sufficiency of the evidence is a question of law.

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Cite This Page — Counsel Stack

Bluebook (online)
160 A.3d 230, 2017 Pa. Super. 113, 2017 WL 1407396, 2017 Pa. Super. LEXIS 274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-ortiz-pasuperct-2017.