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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GARRETT ASHLEY LUTTRELL

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1108 WDA 2022

Appeal from the Judgment of Sentence Entered August 30, 2022

In the Court of Common Pleas of Butler County

Criminal Division at CP

- 10

- CR

- 0001014

- 2018

BEFORE: OLSON, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED: July 21, 2023

Garrett Ashley Luttrell (Appellant) appeals from his designation as a

sexually violent predator (SVP) following his no

- contest plea to corruption of

minors and endangering the welfare of children (EWOC)

. 1 We affirm.

On June 7 , 201 8, Appellant was arraigned on 156 counts of involuntary

indecent assault of a person less than 16 years old, 156 counts of aggravated

indecent assault of a person less than 16 years old, and statutory sexual

assault of a child. See 1 8 Pa.C.S.A. §§ 3123(a) (7), 3125(a)(8), 3122.1( b ). 2

The charges arose from A ppellant ’ s sexual abuse of the victim over the course

_________________ __________ ______ ____ _______

1 See 18 Pa.C.S.A. §§ 6 301( a )(1)(ii), 4304(a)(1).

2 The Commonwealth al so charged Appellant with rape of a child , 18 Pa.C.S.A

. § 3121(c) ; EWOC

, id. § 4304(a)(1) ; and statutory sexual assault of child between 11 and 16 years old

, id. § 3122 .1(b).J

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of four years, beginning when t he vict im was 10 years old

. On July 27, 202 1

,

Appellant entered a negotiated no

- contest plea to corruption of minors and

EWOC

. The trial court subsequently ordered an SVP assessment.

On March 22, 2022

, the trial court hel d an SVP hearing at which Julia

Lindemuth (Ms. Lindemuth), a member of Pennsylvania ’ s Sex Offender

Assessment Board (SOAB), tes tified. T he trial court designated Appellant as

an SVP on May 17, 2022

. See Order, 5/17/22. On August 30, 2022, the trial

court sentenced Appellant to an aggregate one to two years ’ incarceration,

after which Appellant filed the instant timely appeal. Appellant and the trial

court have complied with Pa.R.A.P. 1925.

Appellant presents the following issue:

Was the evidence insufficient to sustain the trial court ’ s determination that [Appellant] is a sexually violent predator where it was predicated on an expert opinion lacking a constitutionally and legally adequate foundation?

Appellant ’ s Brief at 4.

Appellant challenges the sufficiency of the evidence underlying his SVP

designat ion. Id. at 14

- 15. Appellant claims Ms. Lindemuth improperly

equat ed his no

- contest plea with a guilty plea. Id. at 18. Appellant asserts

his no

- contest plea is not an admission of guilt:

Unlike a guilty ple a , a nolo contendere plea does not involve an acknowledgement as to having committed an illegal act. Rather,

the nolo contendere plea admits that the allegations, if proven, meet the elements of the offense or offenses charged. Hence, in pleading no contest, [Appellant] did not admit to having committed the acts alleged.J

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Id. at 19 (citations omitted).

Appellant further argues that Ms. Lindemuth improperly relied on

inadmissible hearsay and “ unproven conduct. ” Id. at 20. Appellant cites

caselaw recognizin g the dangers of hearsay evidence

. Id. at 21

- 22.

According to Appellant, Ms. Lindemuth “ made it clear that no t only did she

rely upon inadmissible hearsay in rendering her opinion, but she assumed that

the facts contained in those hearsay documents were true. ” Id. at 23.

Appellant maintains:

This is a constitutionally and legally inadequate foundation to establish the alleged facts in any adjudicat iv e setting and, derivatively, for [M s. Lindemuth ’ s] expert opinion and the trial

court ’ s finding.

Id. at 23

- 24.

Finally, Appellant challenges the trial court ’ s designation of Appellant as

an SVP

. Id. at 24. He asserts the trial court “ place [d] undue weight on []

Appellant ’ s plea of nolo contendere

, ” and improperly assumed the veracity of

the unproven allegations relied upon by Ms. Lindemuth. Id. at 25. Appellant

states, “ Accepting their veracity is in violatio n of his fundamental rights to due

process. ” Id.

We review an SVP designation to determine whether the Commonwealth

presented clear and convincing evidence that the defendant me e ts the

statutory definition of an SVP. Commonwealth v. Hollingshead , 111 A.3d

186, 189 (Pa. Super. 2015). “ As with any sufficiency of the evidence claim,

we view all evidence and reasonable inferences therefrom inJ

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the light most favorable to the C ommonwealth. ” Id. ( citation omitted). An

“ expert ’ s opinion, which is rendered to a reasonable degree of professional

certainty, is itself evidence. ” Commonwealth v. Fuentes

, 991 A.2d 935,

944 (Pa. Super. 2010) ( en banc )

.

For d esignat ion as an SVP

, the Commonwealth must first show an

individual “ has been convicted of a sexually violent offense as set forth in

section 9795.1. ” See 42 Pa.C.S.A. § 9792. Instantly , Appellant pled nolo

contendere to corruption of minors, a Tier I predicate offense. See 42

Pa.C.S.A. § 9799.14(b)(8). The Commonwealth thus satisfied this first

requirement

.

“ After conviction but before sentencing, a court shall order an individual

convicted of a sexually violent offense to be assessed by the board. ” Id.

§ 9799.24(a). The SOAB is required to undertake a comprehensive

assessment of a defendant convicted of a sexually violent offense by

considering the fifteen factors set forth in 42 Pa.C.S.A. § 9799.24(b)(1)

- (4).

These factors include, but are not limite d to:

(1) Facts of the current offense, including:

(i) 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.J

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- (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.

(ii) Use of illegal drugs.

(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 reoffense.

42 Pa.C.S. A. § 9799.24

.

Here, t he Commonwealth presented Ms. Lindemuth as an expert i n

evaluating and assessing whether a n individual meets the criteria necessary

to be classified as an SVP. 3 N.T., 3/22/22, at 6

. M s. Lindemuth testified that

_________________ __________ ______ ____ _______

3 Ms. Lindemuth explained that she has conducted over 500 sex offender

assessments. Id. at 6.J

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although afforded the opportunity, Appellant did not participate in the

assessment

. Id. at 8.

Ms. Lindemuth explained her method of assessing a non

- participant:

[O]nce I receive the information gathered by the investigator, I review all of the documents that are provided to me and then

... what I am looking for is a mental abnormality or personality disorder that is the impetus or the driving ... factor behind the

behavior.

....

The factors are delineated in the statute. And I have them listed in the report.

Id. at 8.

Ms. Lindemuth confirmed that she evaluates each of the statutory

fac tors. Id. at 8

- 9. She testified there are not a particular number of factors

that must be present to ascertain whether someone is an SVP :

[Ms. Lindemuth:] The factors help us outline and categorize behaviors and patterns of behavior. So, under the statute, what

I ’ m looking for is a pattern of beh avior that could be identified as a mental abnormality or personality disor d er that may be driving the offending.

....

... [T]here are typically two pathways of offending that we know in the field is related to lifetime offending. That is chronic

antisocial ity and chronic sexual deviance. So, antisociality can be a personality disorder. So it ’ s a pattern of behavior over time

that ’ s related to ongoing criminality.

The sexually deviant pathway is looking at a pattern of behavior that is spanning a course of time, and generally what

we ’ re looking for is more than six months. So we ’ re looking for a pattern of sexualized behavior for more than six months that may be able to identify why someone is acting out sexually.J

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Id. at 9

- 10.

With respect to Ap pellant, Ms. Lindemuth testifi ed :

[Appellant] met the criteria for unspecified paraphilic disorder. And unspecified para philic disorder

– there was evidence that the child was pubescent. And, so, unspecified paraphilic disorder ... meets that diagnostic cr iteria for unspecified paraphilic disorder in

that we had sexual behaviors spanning the course of multiple years with what I would assume, based on the age, is an early pubescent child.

.. .

[] Paraphilic disorders are lifetime disorders. They can come and go, based on stressors and opportunity and other factors in a

person ’ s life; but they cannot be extinguished. So they are lifelong, without a cure.

.. .

When somebody has a paraphilic disorder, they have a sexual

attraction

– in this case, a sex ual attraction to a [n] early pubescent minor. That is a lifelong disorder. So, having that disorder increases the likelihood that you will re

- offend, versus

someone who does not have that disorder.

Id. at 12

- 13.

Ms. Lindemuth also testified about Appellant ’ s predatory behavior :

[T]he definition under the statute for “ predatory ” is an act directed at a stranger or a person with whom a relationship has been initiated, established, maintained or promoted, in whole or in part, in order to suppor t or facilitate victimization. So it was my opinion [Appellant] did mee t the criteria

– or the law ’ s definition ... of

“ predatory ” because he was a member of [the victim’s] household

... which would have him being tasked with her care; and instead

he used that trust that was afforded to him and made the child a sex partner. So, in my opinion, that meets the criteria of predatory.J

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Id. at 14. Ms. Lindemuth explained that Appellant had “ a n expression of

sexually maladaptive behaviors over the course of time, spanning more than

six months. ” Id. at 16. She opined, within a reasonable degree of

professional certainty, that Appellant meets the criteria for classification as an

SVP

. Id. at 15.

I n crediting Ms. Lindemuth ’ s testimony , the trial court explain ed :

[Appellant] at the time of the criminal acts was in his early 30s, while the victim was between the ages of 10 and 14. [Appellant]

is the victim ’ s stepfather. This relationship was particularly important to Ms. Lindemuth. She testified, “ he is her stepfather.

He had access to her. He sexually assaulted her. He used his relationship as a stepfather to make her a sexual partner. ” [N.T., 3/22/22 ,] at 49. Further, she stated, “ And so he preyed upon his stepdaughter, what should have been a parent

- child relationship, and used that parent

- child relationship and altered it into a sexual relationship. [ ” ] Id. at 51.

.. .

In terms of reoffending, [Ms. Lindemuth] additionally went on to testify to two pathways for someone to reoffend. The pathways associated with reoffending are chronic antisociality and sexual deviancy. She testified to the fact [Appellant] was engaging in sexual acts with a minor over the span of approximately f our years to be akin to sexual deviancy. Ms.

Lindemuth answered “ Yes ” to the question, “ ... [Appellant ’ s]

behaviors in the instant offense are consistent with sexual deviancy , right? ” Id. at 49. Sexual deviancy is directly linked in

the DSM

- V 4 by falling under paraphilic disorders.

_________________ __________ ______ ____ _______

4 The Diagnostic and Statistical Manual of Mental Disorders ( DSM

- V ) is a widely accepted tool in the mental health profession.J

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Trial Court Opinion, 11/29/22, at 3. The trial court emphasized Ms. Lindemuth

“ testified to not solely focusing on hearsay documents but stated: ‘ I look at

the totality of the information, but I ’ m focused on what he pled to because

that ’ s what he ’ s acknowledging. ’” Id. at 4 (quoting N.T., 3/22/22, at 17).

The trial court agreed with Ms. Lindemuth ’ s assessment . The trial court

found Appellant is a sexually violent predator, “ as he was convicted of a

sexually violent offense, suffers from an unspecified paraphilic disorder and

his behaviors demonstrated a sexual deviancy. ” Id. at 4.

We discern no error in Ms. Lind e muth ’ s consideration of the facts

underlying Appellant ’ s no

- contest plea. In fact, 4 2 Pa.C.S.A. § 9799.24(b)(1)

required Ms. Lindemuth to evaluate the facts. Contrary to Appellant’s

assertion

, a no

- contest plea “ is treated in the same manner as a guilty plea in

terms of its effect upon a particular case. ” Commonwealth v. Williams

,

660 A.2d 614, 619 n.1 (Pa. Super. 1995).

To the extent Appellant challenges Ms. Lindemuth ’ s consideration of

hearsay evidence, this Court recently confirmed:

[A] n SOAB expert opinion falls within the general rules regarding expert witnesses. As such, a n SOAB expert ’ s opinion may be based on facts or data that the expert has been made aware of or personally observed so long as experts in the particular field

reaso nably rely on those kinds of facts or data in forming an opinion on the subject; the facts or data consulted need not be admissible for the expert ’ s opinion to be admitted. See Pa.R.E. 702, 703

.... The SOAB expert must state the facts or data on

which the opinion is based. See Pa.R.E. 705 and Comment (explaining otherwise inadmissible facts and data supporting expert opinion are considered only to explain the basis for an
expert ’ s opinion, not as substantive evidence). Then, the rules ofJ

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evidence place th e full burden of exploration of facts and assumptions underlying the testimony of an expert witness squarely on the shoulders of opposing counsel ’ s cross

examination

....

Commonwealth v. Aumick

, 2023 WL 3939850

, 2023 Pa. Super. LEXIS 266,

*17

- 18 (Pa. Super. filed June 12, 2023) ( en banc ) (quoting Commonwealth

v. Prendes

, 97 A.3d 337, 360

- 61 (Pa. Super. 2014)).

Given the [] statutory mandates, it is clear that the legislature

intended that the SOAB member consider more than the limited

facts included i n a plea colloquy, and that the SOAB member

undertake to review and consider the information contained in records provided by state, county and local agencies, offices and entities in this Commonwealth when making an SVP assessment and preparing a statutor ily compliant written report. To be sure,

it would be the rare occasion on which the SOAB member would be able to fulfill its statutory obligations if its SVP assessments and written reports were limited to facts contained in a plea colloquy , admitted int o evidence, or determined by the trier of fact

.

Aumick , 2023 Pa. Super. LEXIS 266, *20 (emphasis added)

. Based on the

foregoing, Appellant ’ s challenge to Ms. Lindemuth ’ s consideration of hearsay

evidence does not merit relief. See id.

Finally, t he record supports the trial court ’ s determination that Appellant

has a personality disorder , unspecified par a philic disorder, which make s him

likely to engage in predatory sexually violent offenses. See 42 Pa.C.S.A. §

9792. A fter reviewing the evidence in the light most favorable to the

Commonwealth, we conclude that clear and convincing evidence supported

the trial court ’ s designation of Appellant as an SVP

.

Judgment of sentence affirmed.J

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Judgmen t Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/21/2023