J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KRISTIN CARVAJAL

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3120 EDA 2019

Appeal from the Judgment of Sentence Entered October 11, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0013183

- 2015

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E.: FILED MAY 12, 2021

Appellant, Kristin Carvajal, appeals nunc pro tunc from the judgment of

sentence of 20 to 40 years’ incarceration, imposed after she entered a non

negotiated guilty plea to involuntary deviate sexual intercourse with a child

(IDSI), 18 Pa.C.S. § 3123(b), and conspiracy to commit IDSI, 18 Pa.C.S. §

903. On appeal, Appellant challenges the discretionary aspects

, and the

legality of

, her sentence . She also avers that her registration requirements

under Subchapter I of the Sexua l Offender Registration and Notification Act

(“SORNA II”) 1 are unconstitutional. See 42 Pa.C.S. §§ 9799.51

- 9799.75.

_________________ __________ ______ ____ _______

1 In response to Commonwealth v. Muniz

, 164 A.3d 1189 (Pa. 2017),
and Commonwealth v. Butler

, 173 A.3d 1212 (Pa. Super. 2017)

, the Pennsylvania General Assembly amended the prior version of SORNA (“SORNA I”) by enacting Act 10 on February 21, 2018, and Act 29 on June 12, 2018, which are collectively known as SORNA II. See Act
of Feb. 21, 2018, P.L. 27, No. 10 (“Act 10”); Act of June 12, 2018,
(Footnote Continued Next Page)J

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-

After careful review, we vacate Appellant’s judgment of sentence and remand

for further proceedings.

The trial court set forth the fac ts of this case, as follows:

The complainant in this case,

... is Appellant’s biological daughter. On June 4, 2018, the Commonwealth presented [,] and Appellant pled guilty to [,] the following facts:

Your Honor[,] had the Commonwealth taken this case to trial, we would have shown that in the spring of 2010, when

the [v] ictim

... was 11 years old...[,] [s]he was residing with [Appellant] and her sister

... in Philadelphia. She was walking one afternoon with [Appellant]. [Appellant] took a phone call and was speaking to the other party in Spanish. After [Appellant] hung up the phone, the two went home and [Appellant] asked [ the victim ] if she wanted to wear [Appellant’s] night gown. [ The victim] said sure, and [Appellant] produced what can only be described as pink lingerie.

[ The victim ] put that on and was just hanging out in the living room with [Appellant] and ... [ her sister ], and then [ the victim’s ] stepfather

... came over[,] who was married to [Appellant]

.
At that point, [Appellant]

... offered [ the victim ] some pills. [ The victim ] took those pills and she fell asleep. The next thing she remembers is ... being picked up and carried into another room and being placed down on something that she
described as so ft. She then felt the top of her nightgown being pulled down and she [could] hear [Appellant’s] voice next to her ear and her stepfather’s voice[.] She felt a

_________________ __________ ______ ____ _______

P.L. 140, No. 29 (“Act 29”). SORNA II now divides sex offenders into

two subchapters: (1) Subchapter H, which applies to an offender who
committed a sexually violent offense on or after December 20, 2012 (the date SORNA I became effective); and (2) Subchapter I, which applies to an individual who committed a sexually violent offense on

or after April 22, 1996, but before December 20, 2012, whose period
of registration has not expired, or whose registration requirements under

a former sexual offender registration law have not expired

.J

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- sucking sensation on her breasts and she felt a licking sensation in her vagina, as what she de scribed as something hard, and wet, and rough.

[Appellant]..., who had been sucking on [ the victim’s ] breasts[,] switched positions with [the victim’s stepfather]

, and ... then [the stepfather] ... sucked on [ the victim’s ] breasts and [Appellant] licked inside h er vagina.

At that point, [ the victim ] was able to push herself up. She ran in[to] the bathroom, ... and [Appellant] came in a few minutes later and asked her if she was okay. [ The victim ]

asked her mother where her underwear was. Her mother said[,] [“]I’ ll go get your underwear,[”] ... produced her underwear[,] and then [ the victim] went and fell asleep.

Your Honor, as you heard, this all took place when [ the

victim ] was 11 years old. Those [are] the facts on which we base this plea.

(N.T. [,] 6/4/18 [,] at 8

- 10).

Trial Court Opinion (TCO), 8/10/20, at 3

- 4 (some brackets added by trial

court).

On June 4, 2018, Appellant pled guilty to the above

- stated offenses.

There was no agreement as to the sentence she would receive. After the

completion of a presenten ce investigation report (PSI) and a mental health

evaluation , the court sentenced Appellant on September 28, 2018, to an

aggregate term of 18 to 36 years’ incarceration. Appellant filed a timely post

sentence motion

, and a hearing was held on October 11, 2018. At the

conclusion thereof, the court increased Appellant’s sentence for conspiracy to

commit IDSI, resulting in an aggregate term of 20 to 40 years’ imprisonment.

Additionally, b ased on Appellant’s IDSI convic tion, she i s subject to lifetime

registration as a Tier III offender under Subchapter I of SORNA. See 42J

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Pa.C.S. § 9799.55(b)(2)(i)(A) (stating that an individual will be subject to

lifetime registration if convicted of any enumerated offense, including I DSI,

that was committed “on or after April 22, 1996, but before December 20,

2012”).

Appellant did not file a direct appeal. However, on November 28, 2018,

she filed a pro se petition under the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541

- 9546, seeking, inter alia , the reinstatement of her appellate

rights. On October 24, 2019, the court granted that aspect of Appellant’s

petition, and she filed a nunc pro tunc notice of appeal on October 31, 2019.

Appellant thereafter complied with the trial c ourt’s order to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal, and the court

then filed its Rule 1925(a) opinion. Herein, Appellant states two issues for our

review:

I. Is [A]ppellant entitled to a reduction in sentence beca use the trial court’s sentence of 20 to 40 years in prison was an unconstitutional violation of due process, excessive[,] and an
abuse of discretion?

II. Is the sentence of the trial court of lifetime registration/reporting under ... SORNA [II] illegal and

u nconstitutional because it is an ex post facto law and it violated ... [A]ppellant’s right to due process and her right to reputation

under the State Constitution?

Appellant’s Brief at 2.

Appellant’s first issue challenges the discretionary aspects of her

sentence.

Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. Commonwealth v.J

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Sierra

, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four

- part test:

We conduct a four

- part analysis to determine: (1) whether [the] appellant has fi led a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence

, see Pa.R.Crim.P. 720; (3) whether [the] appellant’s brief has a fatal defect, Pa.R.A.P. 2 119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.[] § 9781(b).

Commonwealth v. Evans

, 901 A.2d 528, 533 (Pa. Super. 2006)

... . Objections to the discretionary aspe cts of a sentence are generally waived if they are not raised at the sentencing hearing or in a motion to modify the sentence imposed. Commonwealth

v. Mann

, 820 A.2d 788, 794 (Pa. Super. 2003 )...

.
The determination of what constitutes a substantial question must
be evaluated on a case

- by

- case basis. Commonwealth v. Paul

, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial question exists “only when the appellant advances a colorable argument

that the sentencing judge’s actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.” Sierra, supra at 912

– 13.

Commonwealth v. Griffin , 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury , 992 A.2 d 162, 170 (Pa. Super. 2010)).

Here, Appellant filed a timely notice of appeal, and she has included a

Rule 2119(f) statement in her appellate brief. Therein, Appellant claims

, inter

alia

, that the court ignored certain mitigating factors , including that she took

responsibility for her actions by pleading guilty, she had a low prior record

score, she was also the victim of sexual assault, and she was physically abused

by her ex

- husband. Appellant further contends that the court improperly

focused solely on the impact to the victim and the severity of Appellant’sJ

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criminal conduct, and that the court failed to impose a sentence consistent

with the factors outlined in 42 Pa.C.S. § 9721(b). More specifically, she avers

that the court ignored her rehabilitative needs by imposing a sentence that

will keep Appellant incarcerated or on parole until she is 79 years old, which

suggests that the court erroneously concluded that Appellant cannot be

rehabilitated. Appellant also avers that the court’s imposition of consecutive

sentences was an abuse of discretion and resulted in a facially excessive

sentence.

Appellant raised only one of these claims in her post

- sentence motion,

namely, her assertion that the trial court ignored the mitigating facto rs in this

case. See Post

- Sentence Motion, 10/3/18, at 1

- 2 (unnumbered). Thus,

Appellant’s other sentencing arguments are waived. See Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.”) ; Griffin

, 65 A.3d at 936 ( “[I] ssues challenging the

discretionary aspects of a sentence must be raised in a post

- sentence motion

or by presenting the claim to the trial court during the sentencing proceedings.

Absent such efforts, an objection to a discretionary aspect of a sentence is

waived.” ) (citation omitted )

.

In regard to whether Appellant has presented a substantial question for

our review, we have stated that “[a]n allegation that the sentencing court

failed to consider certain mitigating factors generally does not necessarily

raise a substantial question.” Moury , 992 A.2d at 171 (citations omitted).

However, here, Appellant claims that the court imposed an “aggregateJ

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sentence [that] ... was outside the guidelines and above the aggravated range

of the sentence guidelines” without adequately considering the mitigating

circumstances, which this Court has deemed to be a substantial question.

Appellant’s Brief at 3; see Commonwealth v. Felmlee , 828 A.2d 1105, 1107

(Pa. Super. 2003) ( en banc ).

In this case, Appellant did not receive an aggravated

- range sentence for

h er IDSI crime

. 2 Thus, her claim that the court failed to consider mitigating

circumstances in sentencing her for that offense does not constitute a

substantial question for our review.

However, Appellant did receive a term of incarceration that was outside

the guideline rang e for h er conspiracy conviction. See TCO at 10

(acknowledging that the standard guideline range for Appellant’s conspiracy

conviction was 72 to 90 months, with an aggravated range of 84 to 102

months, making Appellant’s minimum sentence of 10 year s’ impri sonment

_________________ __________ ______ ____ _______

2 ISDI and conspiracy to commit IDSI offenses are both first

- degree felonies. 18 Pa.C.S. § 3123(b) (“ A person commits involuntary deviate sexual intercourse with a child, a felony of the first degree, when the person engages

in deviate sexua l intercourse with a complainant who is less than 13 years of

age. ”); 18 Pa.C.S. § 905(a) (stating that conspiracy is a “crime[] of the same grade and degree as the most serious offense which is ... the object of the conspiracy ” ). Thus, the statutory maxim um terms for each of Appellant’s convictions was 20 years’ imprisonment. 18 Pa.C.S. § 1103(1). The standard guideline range for Appellant’s IDSI crime was 96 months to the statutory limit, plus or minus 12 months for the aggravated and mitigated ranges, respectively. See N.T. Sentencing, 9/28/18, at 4. Appellant received a minimum sentence of 10 years for that offense, which was within the standard

range.J

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outside the guideline ranges). Thus, we will consider Appellant’s argument

pertaining to h er sentence for conspiracy as amounting to a substantial

question for our review.

Nevertheless, no relief is due. At the sentencing proceeding, defense

cou nsel highlighted the mitigating fact or s that Appellant cites herein.

Specifically, counsel stressed that Appellant had a difficult life, N.T. Sentencing

at 6

- 8; she had a history of drug and mental health issues

, and had resorted

to prostitution to suppor t her family, id. at 9

- 10; she had been sexually

assaulted and abused by her ex

- husband, id. at 9; she was remorseful and

had accepted responsibility by ple a d ing guilty, id. at 10; and she had lost

custody of both of her children as a result of her convict ions, id. at 14.

Additionally, the court had the benefit of a PSI and, thus, we “presume that

the sentencing judge was aware of relevant information regarding the

defendant’s character and weighed those considerations along with mitigating

statutory facto rs.” Commonwealth v. Rush , 162 A.3d 530, 545 n.12 (Pa.

Super. 2017) (citations omitted).

Ultimately, the court found th at the mitigating factors were outweighed

by the heinousness of Appellant’s offenses against her own child, and the

impact those crime s had on the victim. N.T. Sentencing at 30. The court also

found Appellant’s claims of remorse to be self

- serving and insincere , and

concluded that Appellant posed a danger to the public that warranted a

lengthy sentence

. Id. at 29

- 30

. Given this record, it is clear the court

considered the mitigating circumstances in this case, but found they wereJ

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outweighed by aggravating factors. We discern no manifest abuse of

discretion that would permit us to disturb the court’s sentencing decisio n. See

Rush , 162 A.3d at 544 (“Sentencing is a matter vested within the discretion

of the trial court and will not be disturbed absent a manifest abuse of

discretion.”) (citation omitted).

We next address another subclaim set forth within Appellant’s firs t issue.

Specifically, Appellant cursorily contends that the court erred by increasing

her sentence at the hearing on her motion for reconsideration. Appellant does

not present a meaningfully developed argument in support of this claim.

Instead, she mere ly states that we must presume vindictiveness when a court

increases a sentence following the grant of reconsideration , and requests that

we vacate her present sentence

. See Appellant’s Brief at 12

- 13 (citing North

Carolina v. Pearce , 395 U.S. 711 (1969), overruled on other grounds by

Alabama v. Smith , 490 U.S. 794 (1989) )

. Accordingly, she insists that her

increased sentence must be vacated.

Despite Appellant’s scant argument, we conclude that she is entitled to

relief based on this Court’s recent decisi on in Commonwealth v. Coleman

,

226 A.3d 598 (Pa. Super. 2020). There, we explained that,

the trial court, at a hearing on [Coleman’s] motion to modify

his sentence

, increased [his] sentence . Three facts [were] not in dispute: 1) the Commonwealth did not request a modification of [Coleman’s ] sentence , either in writing pursuant to Pa.R.Crim.P. 721 or orally at the hearing; 5 2) the trial court was not correcting

a patent or obvious mistake in [Coleman’s] original sentence ; 6

and 3) the original sentence imposed upon [Coleman] was
not illegal. 7 Thus, the issue here is whether a court may

sua sponte increase a defendant ’ s sentence where it hasJ

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decided the original sentence imposed was too lenient. We
conclude that such a challenge implicates the authority of

the court to impose the sentence

, and therefore this issue

is a challenge to the legality of [Coleman’s] sentence

, which

we may address sua sponte

. See Commonwealth v. Robinson

, 7 A.3d 868, 870 (Pa. Super. 2010) (“This Court
has held that an attack upon the power of a court to impose a given sentence is a challenge to the legality of a
sentence .”).

5 There is no question that the Commonwealth may file a motion to modify sentence

, and the trial court

is permitted to increase a defendant ’ s sentence in

response thereto. See Pa.R.Crim.P. 721;
Commonwealth v. Anderson

, ... 450 A.2d 1011 ( [Pa. Super.] 1982) ( en banc ).

6 A trial court may sua sponte correct a patent or obvious mistake. See Pa.R.Crim.P. 720 (Miscellaneous Comments); 42 Pa.C.S. § 5505 (providing a court may modify or rescind an order within 30 days). In
Commonwealth v. Holmes

, ... 933 A.2d 57, 67 ( [Pa.] 2007), our Supreme Court pointed out that “the

inherent power to correct errors does not extend to
reconsideration of a court's exercise of sentencing
discretion. A court may not vacate a sentencing order merely because it later considers a sentence too harsh

or too lenient.”

7 A trial court may correct an illegal sentence sua sponte

, even where a defendant has started serving
that sentence

. See Commonwealth v. Jones

, ... 554
A.2d 50 ( [Pa.] 1989); Commonwealth v. Vanderlin

,

... 580 A.2d 820, 829 ( [Pa. Super.] 1990).

Id. at 603.

The Coleman panel then noted that, in Commonwealth v. Nickens

,

923 A.2d 469 (Pa. Super. 2007), this Court held that “[w]hen the

Commonwealth does not file a post

- sentence motion seeking modification of

a sentence, the sentencing court may not increase a sentence based upon theJ

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defendant’s post

- sentence motion.” Id. (quoting Nickens

, 923 A.2d at 472).

Finding Coleman’s case “virtually indistinguishable” from Nickens

, the

Coleman panel held that the trial court lacked authority to sua sponte

increase Coleman’s sentence in response to his motion for reconsideration,

where the Commonwealth had not also filed a post

- sentence motion. Id.

As in Coleman

, here, the Commonwealth did not file a post

- sen t ence

m otion, and yet the court sua sponte increased Appellant’s sentence at the

hearing on her motion for reconsideration . The court stated that it was doing

so because it believed its original sentence was too lenient, and because

Appellant continued to exhibi t a lack of remorse for her heinous crimes. N.T.

Hearing, 10/11/18, at 7, 12

- 13. Because the Commonwealth did not seek

reconsideration of Appellant’s sentence on these, or any other grounds,

Coleman and Nickens compel us to conclude that the court lacked authority

to increase Appellant’s sentence . Thus, we vacate Appellant’s sentence and

remand for the court to reinstate the sentencing order of September 28, 2018.

In Appellant’s final issue, she challenges the constitutionality of her

lifetime registration requirement under Subchapter I of SORNA II

. According

to Appellant, SORNA II is punitive under Muniz

, which h eld that the

registration requirements of Subchapter H of SORNA I

, as applied

retroactively, were punitive under the seven

- factor test set forth by the United

States Supreme Court in Kennedy v. Mendoza

- Martinez

, 372 U.S. 144

(1963). Thus, the Muniz Court deemed SORNA I unconstitutional under theJ

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ex post facto clauses of the United States and Pennsylvania Constitutions

.

See Muniz

, 164 A.3d at 1223.

Based on Muniz

, Appellant claims that SORNA II’s retroactive

application to her is unconstitutional. Additionally, Appellant cursorily

complains that h er due process rights were violated because “the trial court

did not afford [her] a ... hearing to show that she was not a high risk of being

a recidivist.” Appellant’s Brief at 17. According to Appellant, such a hearing

was required to protect her “fundamen tal and inherent right to reputation

under the [Pennsylvania Constitution] Art[.] I, Sec[.] 1.” Id.

Notably, Appellant fails to acknowledge that SORNA I was amended

following Muniz , and she provides no analysis of SORNA II under the

Mendoza

- Martinez fac tors. More problematicall y, Appellant did not raise

t hese constitutional claim s orally before the court at sentencing, or in her

written post

- sentence motion

. While s he states that her SORNA II arguments

are non

- waivable challenges to the legality of her sentence, we disagree. In

Commonwealth v. Lacombe , 234 A.3d 602 (Pa. 2020), the Pennsylvania

Supreme Court held that the registration requirements in Subchapter I of

SORNA II do not constitute criminal punishment

. Id. a t 626. Thus,

Appellant’s challenges to her lifetime registration requirement under that

provision implicate the collateral consequence s of her convictions, rather than

the legality of her sentence. See Commonwealth v. Smith

, 240 A.3d 654,

658 (Pa. Super. 2020) (“N on

- punitive, administrative requirements are

merely collateral consequences of a criminal conviction .”). B e cause AppellantJ

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failed to raise th ese assertions before the trial court, they are waived. 3 See

Pa.R.A.P. 302(a).

Judgment of sentence vacated. Case remanded for the reinstatement

of the sentence imposed on September 28, 2018. Jurisdiction relinquished.

Judge Nichols did not participate in the consideration or decision of this

case.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/12/2021

_________________ __________ ______ ____ _______

3 In any event, we would conclude that Lacombe’s holding that Subchapter I

is non

- punitive defeats Appellant’s ex post facto and due process claims.