J-S04005-18

2NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 

65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT LEE BIEBER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1057 MDA 2017

Appeal from the Judgment of Sentence April 13, 2016

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

No(s): CP-66-CR-0000207-2015

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT LEE BIEBER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1058 MDA 2017

Appeal from the Judgment of Sentence April 13, 2016

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

No(s): CP-66-CR-0000434-2015

BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.: FILED MARCH 08, 2018

Appellant, Robert Lee Bieber, appeals from the judgments of sentence 

entered on April 13, 2016, following his January 8, 2016 guilty plea to

statutory sexual assault, 18 Pa.C.S. § 3122.1(b), at Wyoming County Court 

of Common Pleas Docket Number 207-2015, and indecent assault, 18 
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Pa.C.S. § 3126(a)(7), at Docket Number 434-2015. Appellate counsel has 

filed a petition to withdraw representation and a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 

A.2d 349 (Pa. 2009).1 After review, we deny counsel’s petition to withdraw

as counsel, reverse the order finding Appellant to be a Sexually Violent 

Predator (“SVP”) and remand to the trial court to advise Appellant of his 

obligations under Pennsylvania’s Sex Offender Registration and Notification 

Act (“SORNA”), 42 Pa.C.S. §§ 9799.10–9799.41. In all other respects, we 

affirm the judgments of sentence.2

The trial court summarized the facts of the crime and procedural 

history as follows:

3

[O]n or about December 23, 2014[,] Pennsylvania State Police 

received a telephone call from [C.S.] who stated her eight year 

old daughter (hereinafter “L.S.”) was sexually molested by 

[Appellant] while visiting [Appellant’s] daughter at [Appellant’s] 

residence on December 20, 2014.

An interview was scheduled and conducted at the 

Children’s Advocacy Center.

____________________________________________

1

 We note with disapproval the Commonwealth’s failure to file a brief in this 

matter.

2

 As our disposition addresses the reasons Appellant set forth in support of 

his Response to Counsel’s Anders Brief and Application for Change of 

Appointed Counsel, filed on December 18, 2017, that Application is 

dismissed as moot.

3

 Appellate counsel has failed to attach to his brief a copy of the trial court 

opinion in contravention of Pa.R.A.P. 2111(b).
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According to the interview contained in the Affidavit of 

Probable Cause:

L.S. stated she went to [Appellant’s] house for the 

weekend to visit her friend. While sleeping, [Appellant] woke 

her up and took her into the bathroom, pulled up her night 

gown, which was a tee shirt [Appellant] gave her to wear as a 

night gown. [Appellant] then pulled down her underpants. He 

then pulled down his pants and put his bad part in her bad part. 

L.S. stated white stuff came out of his bad part and went on her 

legs, the carpet/throw rug and the floor. L.S. further stated 

[Appellant] then told her to wipe the white stuff off of her, which 

she did, using tissues. L.S. then threw the tissues in the 

garbage can that was in the bathroom. [Appellant] told her to 

get dressed and go back to bed, which she did. When asked 

during the interview what L.S. meant by his bad parts, she 

pointed to her crotch area to indicate the area of the bad part for 

[Appellant]. When asked what L.S. meant by her bad part, she 

again pointed to her crotch area.

L.S. was seen by Dr. Rogan, the Children’s Advocacy Center 

doctor. Dr. Rogan found signs of irritation, redness, tenderness 

and swelling around L.S.’s vagina and rectum/anus. All signs 

were not normal. He also observed a white viscous discharge 

matter in the same area. Samples were gathered for a rape kit, 

said kit was turned over to the Pennsylvania State Police for 

further action.

[T]he State Police took possession of L.S.’s underpants she was 

wearing the night of the incident. The underpants and the rape 

kit were transported to the PSP [Pennsylvania State Police] 

crime lab for analysis.

A search warrant was obtained for [Appellant’s] residence. 

At the time of the search, PSP took possession of throw rugs, 

garbage can, nine paper towels or tissues that had been used 

and deposited into the garbage can.

* * *

On March 16, 201[5], police obtained a search warrant for 

[Appellant’s] DNA and obtained a sample the next day.

Trial Court Opinion, 8/10/17, at 1–3.
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Police filed a criminal information at Wyoming County Court of 

Common Pleas Docket Number 207-2015, charging Appellant with one count 

each of rape, statutory sexual assault: complainant under sixteen years old 

and the defendant is eleven years or more older, involuntary deviate sexual 

intercourse with a child, involuntary deviate sexual intercourse: complainant 

less than thirteen years old, aggravated indecent assault of a child, 

aggravated indecent assault without consent, aggravated indecent assault: 

complainant less than thirteen years old, aggravated indecent assault: 

complainant less than sixteen years old and the defendant is four or more 

years older, indecent assault: complainant less than thirteen years old, 

corruption of minor, indecent assault without consent, and indecent assault: 

complainant less than sixteen years old and defendant is four or more years 

older.

4

Police filed an additional affidavit of probable cause against Appellant 

on May 29, 2015, asserting that the Pennsylvania State Police received 

information regarding Appellant’s alleged sexual assault of a different minor 

child, B.V., when the child was three years old. The trial court summarized

that incident as follows:

____________________________________________

4

 18 Pa.C.S. §§ 3121(c), 3122.1(b), 3123(b), 3123(a)(7), 3125(b), 

3125(a)(1), 3125(a)(7), 3125(a)(8), 3126(a)(7), 6301(a), 3126(a)(1), 

3126(a)(8), respectively.
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B.V. stated the first time [Appellant] touched her was at 

her Aunt Amy’s5 house for a sleepover. While she was sleeping 

she heard a noise and thought Aunt Amy got up. [Appellant] 

had been in the room with B.V. and when Amy came into the 

room to check on the children, [Appellant] hid under the bed. 

B.V. was sleeping in bed with one of the other children and 

[Appellant] woke her up and took her into the bathroom and 

touched her. [Appellant] then took [B.V.] by the hand into the 

bathroom and touched her privates with his hand. Upon being 

asked where [Appellant] touched B.V. she pointed to her vaginal 

area to indicate where she was touched. [Appellant] touched 

her with the tip of his fingers over her clothes in the vaginal 

area. B.V. did not touch [Appellant] and said that he was 

wearing jeans and a shirt. [Appellant] then took B.V. back to 

the bedroom and told her not to tell anyone.

Trial Court Opinion, 8/10/17, at 4.

On December 1, 2015, police filed a criminal information at Wyoming 

County Court of Common Pleas Docket Number 434-2015 regarding B.V., 

charging Appellant with one count of corruption of a minor: defendant over 

age eighteen, three counts of indecent assault: complainant less than 

thirteen, and two counts of endangering the welfare of children.6

Appellant pled guilty as noted above on January 8, 2016. An 

evaluation by Paula B. Burst of the Pennsylvania Sexual Offenders 

Assessment Board (“SOAB”) disclosed Appellant’s prior convictions in Ohio of 

two counts of gross sexual imposition of a ten-year-old girl. Trial Court 

____________________________________________

5

 The trial court also revealed that Appellant’s former paramour was a 

woman named Amy and that Appellant requested to speak to her while he 

was in custody. Trial Court Opinion, 8/10/17, at 3.

6

 18 Pa.C.S. §§ 6301(a)(1)(ii), 3126(a)(7), and 4304(a)(1), respectively.
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Opinion, 8/10/17, at 6. Following a hearing on April 11, 2016, the trial court 

found Appellant to be an SVP. Id. at 7.

The trial court reviewed “an extensive Pre Sentence Investigation 

report [“PSI”] and evaluative summary”7 and held a sentencing hearing on 

April 13, 2016. Trial Court Opinion, 8/10/17, at 7. At Docket Number 207-

2015, the trial court sentenced Appellant to a term of imprisonment of 120 

to 240 months, the statutory maximum. At Docket Number 434-2015, the 

court sentenced Appellant to a consecutive term of incarceration of thirty to 

sixty months, the statutory maximum.

Appellant filed a post-sentence motion on April 14, 2016, which the 

trial court denied on April 15, 2016. Defense counsel also filed a motion for 

leave to withdraw as counsel on April 14, 2016, which the trial court granted 

on April 15, 2016, and contemporaneously appointed new counsel for 

Appellant. Order, 4/15/16. Appellant did not file a direct appeal.

On November 22, 2016, Appellant filed a pro se petition for collateral 

relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 

9541-9546.8 The trial court appointed counsel. It appears there was a 

____________________________________________

7

 The PSI report is not contained in the record certified on appeal.

8

 The record contains a letter from newly appointed counsel to Appellant 

that states:

Under Pennsylvania law, a judge has 120 days to rule on a 

post sentence motion. Once the [c]ourt rules on the motion, an 

(Footnote Continued Next Page)
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PCRA hearing on June 7, 2017, but the certified record lacks a transcript 

from the hearing. The trial court, on June 9, 2017, entered an order dated 

June 7, 2017, stating in pertinent part, “Based upon the Stipulation of 

Counsel and upon agreement of [Appellant],” . . . “the use of hearsay 

evidence by the [SOAB] has no merit.” Order, 6/9/17. However, the trial 

court noted that due to “extenuating circumstances,” a direct appeal was not 

filed. Id. The trial court, therefore, reinstated Appellant’s appellate rights. 

Appellant filed timely counseled notices of appeal, which we consolidated for 

appeal on August 30, 2017. Both the trial court and Appellant complied with 

Pa.R.A.P. 1925.

Initially, we must resolve appellate counsel’s request to withdraw. 

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

(Footnote Continued) _______________________

appellant then has 30 days to file a timely appeal. In 

anticipation of the coming deadline for the [c]ourt to rule, we 

pulled the sealed documents relating to your case and 

discovered that there appears to have been a mix up regarding 

the post sentence motion. It appears that the motion was 

denied on April 15, 2016. However, the motion did not have the 

usual listing of parties served at the bottom. This normally 

indicates who would have received a copy of the ruling, but 

without the list[,] it is unclear as to who actually was served with 

a copy. I have attached a letter I received that further states 

that [defense counsel] did not receive a copy. [Defense counsel] 

indicated he was unaware of the ruling.

Because of the date of ruling, a traditional appeal would 

now be untimely and your rights to appeal would be quashed. In 

light of this, I suggest that you file a post-trial motion/PCRA.

PCRA petition, 11/22/16, at supplement to page 7.
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See Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005) 

(“When faced with a purported Anders brief, this Court may not review the 

merits of the underlying issues without first passing on the request to 

withdraw.”).

There are procedural and briefing requirements imposed upon an 

attorney who seeks to withdraw on appeal. The procedural mandates are 

that 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 [his client]; and 3) advise [his client] that he or 

she has the right to retain private counsel or raise additional 

arguments that the [client] deems worthy of the court’s 

attention.

Cartrette, 83 A.3d at 1032 (citation omitted).

In addition, our Supreme Court, in Santiago, stated that an Anders

brief 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.

Santiago, 978 A.2d at 361.
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Appellant’s counsel has complied with the first prong of Santiago by 

providing a summary of the procedural history in the Anders brief.9 He has 

satisfied the second prong by referring to any evidence in the record that he 

believes arguably supports the appeal. Counsel also set forth his conclusion 

that the appeal is frivolous and stated his reasons for that conclusion, with 

appropriate support. Moreover, counsel filed a separate motion to withdraw 

as counsel, wherein he stated that he examined the record and concluded 

that the appeal is wholly frivolous. Further, counsel has attempted to 

identify and develop any issues in support of Appellant’s appeal. 

Additionally, counsel sent a letter to Appellant. While counsel originally 

failed to attach a copy of this letter to the withdrawal petition, following our 

December 5, 2017 order directing same, counsel provided proper notification 

to this Court on December 8, 2017, and attached a copy of the letter to 

Appellant to his Anders brief. In the letter, counsel informed Appellant that 

he had filed an Anders brief, and he apprised Appellant of his rights in light 

of the motion to withdraw as counsel. On December 18, 2017, Appellant 

filed a response, which included an Application for Substitution of Appointed 

Counsel, supra note 2, that we dismiss as moot, infra.

____________________________________________

9

 Counsel has failed to report record citations in his procedural and factual 

summary, in contravention of Pa.R.A.P. 2119(c). We admonish counsel that 

it “is not this Court’s responsibility to comb through the record seeking the 

factual underpinnings of [Appellant’s] claim.” Irwin Union Nat. Bank & 

Tr. Co. v. Famous, 4 A.3d 1099, 1103 (Pa. Super. 2010) (citing 

Commonwealth v. Mulholland, 702 A.2d 1027, 1034 n.5 (Pa. 1997)).
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Based on the foregoing, we conclude that counsel has met the 

procedural and briefing requirements of Anders and Santiago for 

withdrawal. Therefore, we now have the responsibility to make an 

independent judgment regarding whether the appeal is, in fact, wholly 

frivolous. Commonwealth v. Tukhi, 149 A.3d 881, 886 (Pa. Super. 2016).

In the Anders brief, counsel presents the following issues for our 

review:

(I) The reasons for sentencing in the statutory range as they 

relate to [Appellant’s] prior record were already factored into the 

Standard Range Guidelines and, as such, the court improperly 

enhanced an already enhanced sentence.

II. Documents obtained by the Probation Department 

concerning [Appellant’s] conviction in Ohio constituted ex parte

research because the Probation Department employees are 

employees of the court.

III. The sentencing court’s use of the ages of the victims as 

aggravating factors was improper as the ages constituted 

elements of the offense for the purpose of grading and, as such, 

the sentencing court enhanced an already enhanced sentence.

IV. The sentencing court’s use of information from the [SVP] 

hearing and [SVP] Assessment violated the Confrontation Clause 

of the State and Federal Constitutions because the full panoply 

of standard objections, including hearsay, were unavailable 

during testimony of the SOAB witness.

V. That certain of the reasons for aggravating the sentence of 

[Appellant] were no different than any similar criminal event by 

any similar criminal defendant.

VI. That the sentencing court failed to take into account any 

mitigating circumstances when fashioning the sentence.

Anders Brief at 14–15, 17, 19–21 (footnote omitted).
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These issues present a challenge to the discretionary aspects of 

Appellant’s sentence. Challenges to the discretionary aspects of sentencing 

do not entitle an appellant to review as of right, and his challenge in this 

regard is properly viewed as a petition for allowance of appeal. 42 Pa.C.S. § 

9781(b); Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987); 

Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super. 2000). An appellant 

challenging the discretionary aspects of his sentence must satisfy a four-part 

test. We evaluate: (1) whether Appellant filed a timely notice of appeal; (2)

whether Appellant preserved the issue at sentencing or in a motion to 

reconsider and modify sentence; (3) whether Appellant’s brief includes a 

concise statement of the reasons relied upon for allowance of appeal; and 

(4) whether the concise statement raises a substantial question that the 

sentence is appropriate under the Sentencing Code. Commonwealth v. 

Carrillo-Diaz, 64 A.3d 722, 725 (Pa. Super. 2013). An appellant must 

articulate the reasons the sentencing court’s actions violated the Sentencing 

Code. Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010); 

Sierra, 752 A.2d at 912–913.

In the instant case, Appellant filed a timely appeal, and the issues, 

except Issue VI, were properly preserved in his post-sentence motion. The 

Anders brief does not contain a concise statement of the reasons relied 

upon for allowance of appeal with respect to the discretionary aspects of a 

sentence pursuant to Pa.R.A.P. 2119(f). The absence of such statement, 
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however, is not an impediment to our review of the discretionary-sentencing 

claims. See Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 

2015) (noting where counsel has filed an Anders brief, “we do not consider 

counsel’s failure to submit a Rule 2119(f) statement as precluding review of 

whether Appellant’s issue is frivolous.”).

Issue VI, that the trial court failed to consider mitigating factors, is 

waived because Appellant failed to raise it in his post-sentence motion. Post 

Sentence Reconsideration Motion, 4/14/16. Even if not waived, the issue 

does not raise a substantial question. A claim that the trial court failed to 

consider mitigating factors in sentencing generally does not raise a 

substantial question. Commonwealth v. Rhoades, 8 A.3d 912, 918–919 

(Pa. Super. 2010). See Commonwealth v. Johnson, 961 A.2d 877, 880 

(Pa. Super. 2008) (claim that court failed to consider mitigating factors in 

imposing consecutive sentences did not raise substantial question); 

Commonwealth v. Bullock, 868 A.2d 516, 529 (Pa. Super. 2005) (where 

no specific provision of sentencing code or fundamental norm is identified in 

claim that court failed to consider mitigating factors, no substantial question 

raised). Furthermore, the issue lacks merit. The court received and 

reviewed the PSI report and entertained comment regarding Appellant’s 

abusive childhood. N.T., 4/13/16, at 9. When a trial court receives a PSI 

report, we assume the court was aware of the relevant information 
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regarding the defendant’s character and weighed it with other relevant 

mitigating factors. Rhoades, 8 A.3d at 919.

Issue II, while raising a substantial question, Commonwealth v. 

Macias, 968 A.2d 773, 776 (Pa. Super. 2009) (allegation that the court 

considered an impermissible sentencing factor raises a substantial question), 

is waived as well. Appellant suggests the trial court’s reliance on the 

Probation Department’s use of records from Ohio substantiating Appellant’s 

guilty pleas to two separate offenses of Gross Sexual Imposition involving 

minor children, in that they formed the basis for Appellant’s prior record 

score, was error. The case relied upon by counsel, Commonwealth v. 

McClure, 172 A.3d 668 (Pa. Super. 2017), is not relevant and is 

distinguishable because it involved ex parte communication between the 

court and counsel and did not involve documents utilized in sentencing. 

More importantly, however, defense counsel asserted at sentencing that the 

prior record score of two, as determined by the Probation Department in 

reliance on the Pennsylvania equivalent to the Ohio convictions, was correct. 

N.T., 4/13/16, at 7. Counsel never asserted in his presentence 

memorandum or at the sentencing hearing that the Probation Department’s 

reliance on the Ohio indictment or Ohio sentencing order was improper. 

Indeed, the asserted reason for claiming such improper reliance was to 

suggest that the prior record score should have been zero not two, 

Appellant’s Sentencing Memorandum, 4/5/16, a conclusion that Appellant 
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ultimately retracted at the sentencing hearing. N.T., 4/13/16, at 7. Finally, 

the trial court’s June 9, 2017 order confirmed Appellant’s agreement to the 

use of the Ohio documents. Order, 6/9/17. Thus, this claim is waived.

We address issues I, III, and V together as they are all related.10 The 

issues are inartfully worded and lacking in clarity. Nevertheless, we discern 

from our review of the Anders brief that counsel is alleging that the trial 

court sentenced Appellant outside of the Sentencing Guidelines to the 

statutory maximum by improperly relying on factors that already were 

considered by the Guidelines. Anders brief at 14, 17, 20. This Court has 

held that claims of a sentencing court imposing a sentence outside of the 

standard guidelines without stating adequate reasons on the record presents 

a substantial question. Commonwealth v. Antidormi, 84 A.3d 736, 759 

(Pa. Super. 2014) (citing Commonwealth v. Robinson, 931 A.2d 15, 26 

(Pa. Super. 2007)). The factors Appellant underscores are the court’s 

references to Appellant’s prior criminal record, the ages of the child victims, 

and the fact that Appellant was in a position of trust as a caregiver when he 

committed the crimes. Id.

We note our standard of review:

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 

____________________________________________

10

 We note that Issue IV is moot in light of our disposition regarding 

Appellant’s SVP status and is discussed infra.
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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. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015)

(internal quotation marks and citations omitted). A sentencing court “is 

required to consider the particular circumstances of the offense and the 

character of the defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10 

(Pa. Super. 2002). “In particular, the court should refer to the defendant’s 

prior criminal record, his age, personal characteristics and his potential for 

rehabilitation.” Id.

If a court imposes a sentence outside of the Sentencing Guidelines, 

which are not mandatory, Commonwealth v. Walls, 926 A.2d 957, 964 

(Pa. 2007), “it must provide a written statement setting forth the reasons for 

the deviation[,] and the failure to do so is grounds for resentencing.” Id. at 

963. Moreover, “the central focus of substantive appellate review with 

respect to a sentence outside of the guidelines is whether the sentence is 

‘unreasonable.’” Id. As our Supreme Court explained, our examination of a 

sentence is deferential because the “sentencing court is in the best position 

to determine the proper penalty for a particular offense based upon an 

evaluation of the individual circumstances before it.” Id. at 961 (citation 

and quotation marks omitted). “Simply stated, the sentencing court 

sentences flesh-and-blood defendants and the nuances of sentencing 
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decisions are difficult to gauge from the cold transcript used upon appellate 

review.” Id.

Pursuant to the Sentencing Code, we may vacate a sentence if we find 

1) that the court intended to sentence within the guidelines but “applied the 

guidelines erroneously;” 2) a sentence was imposed within the guidelines 

“but the case involves circumstances where the application of the guidelines 

would be clearly unreasonable;” or 3) “the sentencing court sentenced 

outside the sentencing guidelines and the sentence is unreasonable.” 42 

Pa.C.S. § 9781(c). “In all other cases the appellate court shall affirm the 

sentence imposed by the sentencing court.” Id.

Here, the record indicates that the sentences imposed were outside of 

the Sentencing Guidelines. Docket Number 207-2015 Guideline Sentence 

Form, 4/14/16; Docket Number 434-2015 Guideline Sentence Form, 

4/14/16. We conclude, however, that the sentences were not unreasonable.

We recently reiterated:

In [Commonwealth v.] Shugars, [895 A.2d 1270, 1274–

1275 (Pa. Super. 2006),] we explained that while “it 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 mitigated range,” 

a trial court may “use prior conviction history and other factors 

already included in the guidelines if, they are used to 

supplement other extraneous sentencing information.” 895 A.2d 

at 1275 (quoting Commonwealth v. Simpson, 829 A.2d 334, 

339 (Pa. Super. 2003)) (emphasis in original).

Commonwealth v. Rush, 162 A.3d 530, 545–546 (Pa. Super. 2017), 

appeal denied, 170 A.3d 1049 (Pa. 2017).
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That the trial court mentioned Appellant’s prior criminal history or 

noted the fact that Appellant was in a position of trust when he committed 

the crimes does not demonstrate that the court “double counted” sentencing 

factors. The trial court considered the sentencing factors set forth in 42 

Pa.C.S. § 9721(b), including the impact on the victims’ lives, the threat 

Appellant posed to the community, the likelihood Appellant would re-offend, 

and Appellant’s lack of remorse. N.T., 4/13/16, at 17–18. Therefore, we 

conclude that the reference to the ages of the victims and Appellant’s 

position of trust were just two factors among several that led to the 

sentences outside of the Guidelines. Shugars, 895 A.2d at 1275. The trial 

court deviated from the Guidelines and imposed sentences that took into 

account “the protection of the public, the gravity of the offense as it relates 

to the impact on the life of the . . . community, and the rehabilitative needs 

of the defendant.” 42 Pa.C.S. § 9721(b); Commonwealth v. Sheller, 961 

A.2d 187, 190 (Pa. Super. 2008). As such, we reject Appellant’s claims and 

find that the sentences imposed were not unreasonable.

There remains the matter of Appellant’s Application for Change of 

Appointed Counsel and the issues Appellant asserts in support of it. We 

have addressed the propriety of Appellant’s sentence and the court’s 

reference to the Ohio convictions, which are two of the three reasons 

identified by Appellant in seeking substituted counsel. Response to 

Counsel’s Anders Brief and Application for Change of Appointed Counsel, 
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12/18/17, at unnumbered 1–2. The third reason is Appellant’s claim that his 

SVP designation is unconstitutional in light of Commonwealth v. Muniz, 

135 A.3d 178 (Pa. 2017). For the following reasons, we reverse the order 

finding that Appellant is an SVP and remand for the trial court to advise 

Appellant of his obligations under SORNA.

Applying Muniz, 164 A.3d 1189, Apprendi v. New Jersey, 530 U.S. 

466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013), in 

Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), this Court

found that 42 Pa.C.S. § 9799.24(e)(3) of SORNA is unconstitutional. As a 

result, we held that “trial courts cannot designate convicted defendants SVPs 

(nor may they hold SVP hearings) until our General Assembly enacts a 

constitutional designation mechanism.” Butler, 173 A.3d at 1218. Here, 

Appellant was determined to be an SVP under the now unconstitutional SVP 

mechanism. In light of Butler, we must reverse the trial court’s SVP order 

and remand this case to the trial court for the sole purpose of issuing the 

appropriate notice under 42 Pa.C.S. § 9799.23. Id.

We have independently reviewed the record in order to determine if 

counsel’s assessment concerning the frivolous nature of the present appeal 

is correct. Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 

2015) (after determining that counsel has satisfied the technical 

requirements of Anders and Santiago, this Court must conduct an 

independent review of the record to determine if there are additional, non-
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frivolous issues overlooked by counsel). Following our independent review 

of the record, we conclude that counsel overlooked the SVP issue that has 

now resulted in a remand to the trial court. Accordingly, because the appeal 

includes a non-frivolous issue, we cannot permit counsel to withdraw at this 

time. See Commonwealth v. Orellana, 86 A.3d 877, 882 (Pa. Super. 

2014) (“Anders withdrawal is only permissible in an appeal consisting solely 

of frivolous issues.”). Therefore, we deny counsel’s petition to withdraw.

Petition to Withdraw as Counsel denied. Application for Change of 

Appointed Counsel dismissed as moot. April 14, 2016 SVP order reversed. 

Judgments of sentence affirmed in all other respects. Case remanded for 

proceedings consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/8/2018