J-S02042-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KRISTIN CARVAJAL 

Appellant

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 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 nonnegotiated 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 Sexual Offender Registration and Notification Act 

(“SORNA II”)1 are unconstitutional. See 42 Pa.C.S. §§ 9799.51-9799.75. 

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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)
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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 facts 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 soft. 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.
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sucking sensation on her breasts and she felt a licking 

sensation in her vagina, as what she described 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 her 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 presentence 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 postsentence 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, based on Appellant’s IDSI conviction, she is subject to lifetime 

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

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 court’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 because 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 

unconstitutional 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. 
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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 filed 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. 2119(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 aspects 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.2d 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’s
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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 factors 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 “aggregate 
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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 

her 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 range for her 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 years’ imprisonment 

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

pertaining to her sentence for conspiracy as amounting to a substantial 

question for our review. 

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

counsel highlighted the mitigating factors 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 support 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 pleading guilty, id. at 10; and she had lost 

custody of both of her children as a result of her convictions, 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 factors.” Commonwealth v. Rush, 162 A.3d 530, 545 n.12 (Pa. 

Super. 2017) (citations omitted). 

Ultimately, the court found that the mitigating factors were outweighed 

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

impact those crimes 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 were 
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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 decision. 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 first 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 merely 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 decision 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 has 
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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 the
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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-sentence

motion, 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 exhibit 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 held 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 the
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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 her 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 “fundamental 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 factors. More problematically, Appellant did not raise 

these constitutional claims orally before the court at sentencing, or in her

written post-sentence motion. While she 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. at 626. Thus, 

Appellant’s challenges to her lifetime registration requirement under that 

provision implicate the collateral consequences of her convictions, rather than 

the legality of her sentence. See Commonwealth v. Smith, 240 A.3d 654, 

658 (Pa. Super. 2020) (“Non-punitive, administrative requirements are 

merely collateral consequences of a criminal conviction.”). Because Appellant
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failed to raise these 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

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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.