J. S11007/16

2016 PA Super 90

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

CALVIN QUINTON EVANS, : No. 2405 EDA 2015

:

 Appellant :

Appeal from the Order, July 2, 2015,

in the Court of Common Pleas of Delaware County

Criminal Division at No. CP-23-CR-0002324-2014

BEFORE: FORD ELLIOTT, P.J.E., OTT AND MUSMANNO, JJ. 

OPINION BY FORD ELLIOTT, P.J.E.: FILED APRIL 26, 2016

Calvin Quinton Evans appeals the July 2, 2015 order of the Court of 

Common Pleas of Delaware County that designated him as a sexually violent 

predator (“SVP”).1 We affirm.

 

1 Section 9799.12 of the Sex Offender Registration and Notification Act (“SORNA”), 

42 Pa.C.S.A. § 9799.12, defines a “sexually violent predator” as:

An individual determined to be a sexually violent predator 

under section 9795.4 (relating to assessments) prior to 

the effective date of this subchapter or an individual 

convicted of an [enumerated] offense . . . or . . . who, on 

or after the effective date of this subchapter, is 

determined to be a sexually violent predator under 

section 9799.24 (relating to assessments) due to a 

mental abnormality or personality disorder that makes 

the individual likely to engage in predatory sexually 

violent offenses. . . .

An SVP is subject to the registration requirements of SORNA for his or her life.
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Appellant is a registered sex offender from a prior offense. As the 

result of events which took place on April 12, 2013, appellant was charged 

with two counts of unlawful contact, two counts of indecent assault, and two 

counts of corruption of minors.2

On September 9, 2014, appellant entered a negotiated guilty plea. 

Prior to sentencing, the trial court ordered appellant to undergo an 

assessment by the Pennsylvania Sexual Offenders Assessment Board 

(“SOAB”) to determine what restrictions would be placed on him in terms of 

registration and reporting as a sex offender.

On December 5, 2014, the trial court sentenced appellant to an 

aggregate sentence of 121⁄2 to 25 years. He was also sentenced 

consecutively to 5 years’ probation for each of two counts of indecent assault 

for a total of 10 years’ probation after the expiration of his prison term.3

By letter dated December 16, 2014, Meghan Dade (“Dade”), executive 

director of SOAB, notified counsel for the Commonwealth that SOAB had not 

received the court order for appellant’s SOAB assessment within 10 days of 

his conviction, as required by law. The order was received on December 5, 

2014, which was 87 days after Evans was convicted. As a result, SOAB 

could not perform its assessment within 90 days of the date of conviction as 

 

2 18 Pa.C.S.A. § 6318(a)(1), 18 Pa.C.S.A. § 3126(a)(4), & 18 Pa.C.S.A. 

§ 6301(a)(1)(i), respectively.

3 The sentence ran concurrent to a 36 to 84-month sentence for a Megan’s 

Law violation. Megan’s Law was the predecessor statute to SORNA.
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required under Section 9799.24(d). In the letter, Dade also informed the 

Commonwealth’s counsel that SOAB would proceed with the assessment and 

estimated that it would be completed by March 5, 2015. After SOAB 

completed the assessment, appellant moved to preclude the introduction of 

the SOAB report at his SVP hearing and alleged:

3. [Appellant] was sentenced on December 5, 

2014 pursuant to the negotiated plea.

4. The SOAB did not prepare a report of its 

assessment until March 2015.

5. Under 42 Pa.C.S.[A. §] 9799.24(d) (formerly 

42 Pa.C.S.[A. §] 9795.4(d)), the SOAB shall 

have 90 days from the date of conviction to 

submit a written report containing its 

assessment to the district attorney.

6. It is believed that under 42 Pa.C.S.[A. 

§] 9799.24(a), the conviction date is calculated 

from the guilty plea.

7. The undersigned does not believe that 

[appellant] has waived any of his rights.

8. It is respectfully suggested that the language 

of 42 Pa.C.S.[A. §] 9799.24(d) is mandatory 

and absent waiver by [appellant], bars the 

Commonwealth from introducing testimony 

concerning the SOAB assessment of 

[appellant].

Defendant’s motion to bar introduction of SOAB report, 4/16/15 at 1-2 

¶¶ 5-8.

By order dated June 17, 2015, the trial court denied the motion. 

Though it acknowledged that the order was not submitted by the trial court 
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within 10 days as required by SORNA, the trial court noted that, given the 

nature of the crimes and the lengthy sentence imposed, there was no 

prejudice to appellant for a “mere technical delay.” (Order, 6/17/15 at 1.)

The trial court further explained:

Here, the report was not submitted within the ten 

days of the conviction as per the statute; the request 

for an assessment was sent on the day that 

Appellant was sentenced (12/5/2014). According to 

the statute, the request should have been sent by 

September 19, 2014; ten days after the conviction 

date of September 9, 2014. This Court agrees that 

the request and the subsequent report, completed 

on February 28, 2015, were not completed within the 

statutory time frame. However, this Court denied 

Appellant’s motion to bar the report because the 

error was procedural in nature; the SOAB notified 

this Court and the parties that the report would be 

late but the interview was still going to be 

conducted. Appellant suffered no prejudice from 

being interviewed later as he was already serving [a] 

12.5 to 25 year sentence; and the report 

overwhelmingly demonstrates that Appellant is a 

sexually violent predator, fitting all of the criteria, 

and showing a man who has been committing sex 

crimes since the age of 16, showing no remorse for 

his actions and a [sic] has a high risk of re-offending.

Trial court opinion, 9/2/15 at 3-4. 

At the SVP hearing, the parties stipulated that if the person who 

prepared the report for SOAB testified, her testimony would be consistent 

with the SOAB report. (Notes of testimony, 7/2/15 at 3.) The report 

indicated that appellant had a mental abnormality/personality disorder and 

met the predatory behavior criteria. (Id. at 5.) The trial court found that 

appellant was an SVP.
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Appellant raises the following issue for this court’s review:

Did the trial court err in denying Defense’s motion to 

bar the introduction of the report of the Pennsylvania 

Sexual Offender Assessment Board at the hearing 

held to assess [appellant’s] status as [a] Sexually 

Violent Predator on July 2, 2015 which was prepared 

more than 90 days after the conviction of the 

[appellant], in violation of 42 Pa.C.S.[A. 

§] 9799.24(d)?

Appellant’s brief at 5.

This court’s review is limited to a determination of whether the trial 

court committed an error of law. Commonwealth v. Mackert, 781 A.2d 

178, 185 (Pa.Super. 2001).

Section 9799.24(a) provides: 

Order for Assessment.--After conviction but before 

sentencing, a court shall order an individual 

convicted of a sexually violent offense to be assessed 

by the board. The order for an assessment shall be 

sent to the administrative officer of the board within 

ten days of the date of conviction for the sexually 

violent offense.

Section 9799.24(d) provides,

Submission of report by board.--The board shall 

have 90 days from the date of conviction of the 

individual to submit a written report containing its 

assessment to the district attorney.

Here, it is undisputed that appellant was convicted on September 9, 

2014, that the trial court did not order SOAB to perform an assessment until 

December 5, 2014, and that SOAB did not complete its assessment until late 

February 2015. Therefore, the trial court ordered the assessment more than 
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10 days after the date of conviction, and SOAB completed its assessment 

more than 90 days from the date of the conviction. Both the order for the 

assessment and the assessment were untimely under SORNA. Appellant 

argues that because of the lack of compliance with SORNA, the trial court’s 

order that designated him as an SVP should be vacated, and the matter 

should be remanded to the trial court for a new hearing where the SOAB 

assessment is excluded from evidence.

SORNA does not contain a provision whereby an assessment is barred 

if a trial court and/or SOAB fail to comply with 42 Pa.C.S.A. § 9799.24(a) 

and (d). Similarly, appellant fails to point to any case law to support his 

position. 

In Commonwealth v. Baird, 856 A.2d 114 (Pa.Super. 2004), this 

court explained the relationship between the sentencing of an individual and 

a determination that he is classified as a sexual offender or an SVP:

[I]n cases where Megan’s Law is applicable, 

sentencing must wait until after a determination is 

made under Megan’s Law, i.e., a determination 

whereby an offender is found to fit the definition of a 

sexual offender or a sexually violent predator 

(“SVP”), as such terms are defined in section 9752 of 

Megan’s Law. This is because the trial court must 

inform an offender or SVP of his reporting obligations 

under Megan’s Law at the time of sentencing and, 

since such obligations may differ depending on the 

offender’s status under Megan’s Law, the , the court 

must await the outcome of a Megan’s Law 

assessment prior to sentencing.

Id. at 115.
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In Commonwealth v. Anders, 725 A.2d 170 (Pa. 1999), the 

Pennsylvania Supreme Court addressed the need for prejudice in order to 

discharge an individual for a violation of the 60-day sentencing rule. On 

April 26, 1996, Joseph Wayne Anders (“Anders”) pled guilty to one count of 

driving under the influence of alcohol. His sentencing hearing was scheduled 

for May 23, 1996. The Court of Common Pleas of Huntingdon County 

ordered a pre-sentencing report to be completed by June 25, 1996, which 

was 60 days after Anders’ guilty plea. The sentencing hearing was 

subsequently rescheduled for August 1, 1996, which was 97 days after the 

guilty plea. At the sentencing hearing on August 1, 1996, Anders moved for 

discharge on the basis that the delay in sentencing violated then 

Pa.R.Crim.P. 1405,4 which provided that, unless the sentencing court 

 

4 On March 1, 2000, Pa.R.Crim.P. 1405 was renumbered as Pa.R.Crim.P. 704 

effective April 1, 2001. Pa.R.Crim.P. now has a time limit of 90 days for sentencing 

from the date of a conviction. Pa.R.Crim.P. 704 provides in pertinent part:

Rule 704. Procedure at Time of Sentencing 

(A) Time for Sentencing.

(1) Except as provided by Rule 702(B) 

[regarding psychiatric or psychological 

examinations], sentence in a court shall 

ordinarily be imposed within 90 days of 

conviction or the entry of a plea of guilty or 

nolo contendere

(2) When the date for sentencing in a court case 

must be delayed, for good cause shown, 

beyond the time limits set forth in this rule, 

the judge shall include in the record the 

specific time period for the extension.
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showed good cause, a sentence shall be imposed within 60 days of 

conviction or the entry of a plea of guilty or nolo contendere. The Court of 

Common Pleas of Huntingdon County denied the motion for discharge and 

sentenced Anders to a term of 30 days to 23 months in prison. Id. at 171-

172.

Anders appealed to this court, which affirmed on the basis that the 

delay did not infringe upon Anders’ right to a speedy trial or his right to due 

process and expressly overruled Commonwealth v. Thomas, 674 A.2d 

1119 (Pa.Super. 1996), to the extent Thomas held that discharge was the 

appropriate remedy for a violation of Rule 1405(a). Id. at 172.

Anders appealed to the Pennsylvania Supreme Court. Our supreme 

court held that a defendant who is sentenced in violation of Rule 1405 is 

entitled to discharge only where he or she can demonstrate that the delay in 

sentencing prejudiced him or her. Because this court did not address this 

issue, our supreme court vacated and remanded to this court for an 

evidentiary hearing to determine if the delay prejudiced Anders. Id. at 173-

174.

The reasoning in Anders is instructive. In Anders, our supreme court 

determined that the failure to comply with a rule of criminal procedure with 

respect to timing only required a remedy if the defendant suffered prejudice.

Similarly, here the issue is what remedy is required if the statutes 

regarding the deadlines for an order for an assessment of an individual as a 
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possible SVP and the submission of the written report of that assessment are 

not followed. This court agrees with the reasoning of our supreme court in 

Anders. In order for appellant to have prevailed on his motion to exclude 

the report before the trial court or to vacate the order of the trial court and 

remand for a new hearing without the admission of the report as appellant 

now seeks, appellant must demonstrate that he suffered some prejudice as 

a result of the delay. However, appellant does not argue that he suffered 

any prejudice as a result of this delay. The trial court stated that appellant 

suffered no prejudice from an untimely assessment because he was already 

serving a 121⁄2 to 25-year sentence and the report demonstrated that 

appellant was an SVP who has been committing sex crimes since he was 

16 years old, showed no remorse for his actions, and had a high risk of 

committing another offense. We agree with the trial court that appellant 

suffered no prejudice because he was incarcerated at the time and would not 

be subject to the registration and reporting requirements of SORNA until his 

release, which would not be for many years.

Clearly, the trial court should have issued a timely order to request the 

assessment; this court determines that any error made by the trial court 

was harmless.

Order affirmed.
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Judgment Entered.

JosephD.Seletyn,Esq.

Prothonotary

Date: 4/26/2016