Commonwealth v. Sokolowski

1

COMMONWEALTH OF PENNSYLVANIA v. ROCKY SOKOLOWSKI Appellant COMMONWEALTH OF PENNSYLVANIA v. ROCKY SOKOLOWSKI Appellant

Nos. 1469 EDA 2022, 1470 EDA 2022

No. J-S38030-22

Superior Court of Pennsylvania

July 20, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

Appeal from the Judgment of Sentence Entered May 19, 2022 In the Court of Common Pleas of Monroe County Criminal Division at CP-45-CR-0001562-2020, CP-45-CR-0001563-2020

BEFORE: KUNSELMAN, J., MURRAY, J., and SULLIVAN, J.

MEMORANDUM

MURRAY, J.

Rocky Sokolowski (Appellant) appeals from the judgment of sentence entered after he pled guilty to one count of attempted invasion of privacy at CP-45-CR-0001562-2020 (attempt case), and two counts of invasion of privacy at CP-45-CR-0001563-2020 (invasion case).^[1] We affirm.

Appellant is a registered sex offender. In July 2020, he was in a store, following a mother and her minor daughter, when the mother observed Appellant "bend down next to her minor daughter and place[] his face and nose inside the rear of the minor female's loose-fitting pants, appearing to be sniffing at her buttocks." Affidavit of Probable Cause 8/6/20, at 1. In a second incident, Appellant followed an adult woman at a food store and appeared to smell "her buttock or groin area." Id. The woman believed it was also possible Appellant was photographing her "groin area." Id.

As a result of the July 2020 incidents, the Commonwealth charged Appellant with the above crimes. The trial court recounted the procedural history as follows:

On June 30, 2021, [Appellant] entered guilty pleas in both cases.^[2] … [The trial court] scheduled sentencing for September 23, 2021.

On September 23, 2021, [the trial court] convened the sentencing hearing. At that time, [the trial court] realized [it] had inadvertently failed to order an assessment by the sexual offender assessment board [SOAB] to determine whether the [Appellant] should be classified as a sexually violent predator [SVP]. As a result, [the trial court] rescheduled sentencing for December 14, 2021, and directed the SOAB to conduct the necessary assessment. The Commonwealth filed its Praecipe pursuant to 42 Pa.C.S.A. § 9795.4 on December 10, 2021. On December 14, 2021─ the day on which sentencing was scheduled to occur ─ the Commonwealth filed a motion for continuance ─ requesting sentencing be continued because its SOAB evaluator, Dr. Mary Muscari, was unavailable to testify. [The court] granted the Commonwealth's motion and continued sentencing to March 10, 2022─ the first day in the [c]ourt's schedule with sufficient time to conduct both the SVP hearing and sentencing.

On March 10, 2022, [the trial court] convened the SVP and sentencing hearings. At the outset of the hearing, the Commonwealth advised that Dr. Muscari was not present, but did not know why she was absent. … [The court] continued the hearings to May 19, 2022. [It] placed [the] reasons for doing so on the record on March 10, 2022.

Trial Court Opinion, 6/24/22, at 1-2 (footnote added).

The trial court held the combined sentencing/SVP hearing on May 19, 2022. The court sentenced Appellant, in accordance with the terms of the guilty plea, to an aggregate 2 - 4 years of incarceration, followed by 8 years of probation.^[3] See Guilty Plea Colloquy and Plea, 3/9/22, at 1. Appellant did not file a post-sentence motion. This timely appeal followed.^[4]

Appellant raises two issues for review:

1. Whether, on March 10, 2022, the sentencing court erred when it continued the Appellant's sentencing a [third] time, in violation of Pa.R.Crim.P. 704, when the Commonwealth's expert witness failed to appear on that date, without explanation, and after the Commonwealth had previously continued the sentencing to schedule the expert witness for March 10, 2022 as a date on which the expert witness would be available to testify?

2. Whether the sentencing court erred when it found that the Appellant was an [SVP] based upon hearsay?

Appellant's Brief at 5 (footnote omitted).

Appellant first argues the trial court erred and abused its discretion in sentencing him more than 90 days after his conviction, in violation of Pa.R.Crim.P. 704. Appellant's Brief at 11-14. Appellant has not preserved this issue.

Appellant did not file a written pre-sentence motion to dismiss pursuant to Pa.R.Crim.P. 704(A) (Time for Sentencing).^[5] The record does not indicate, in either the March 10, 2022, or May 19, 2022, proceedings, that Appellant made an oral motion to dismiss.^[6] Appellant raised this issue for the first time in his Rule 1925(b) statement. See Concise Statement of Matters Complained of on Appeal, 6/8/22, at 1 (unnumbered). An appellant may not raise an issue for the first time on appeal. See Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa. Super. 2011) (issues raised for first time in a Rule 1925(b) statement are waived). Thus, the issue is waived. See Pa.R.A.P. 302(a) (stating an issue cannot be raised for the first time on appeal).

The issue would lack merit even if it had been preserved. When reviewing a claim of undue delay in sentencing,

we defer to the trial court's judgment on this issue of alleged undue delay and shall reverse only for an abuse of discretion. … [M]ere errors in judgment do not amount to abuse of discretion; instead, we look for manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous. In addition, a trial court abuses its discretion if the law is overridden or misapplied.

....

[O]ur scope of review is limited to the evidence on the record … and the factual findings of the trial court. Also, we must view the facts found in the light most favorable to the prevailing party.

Commonwealth v. Neysmith, 192 A.3d 184, 192-93 (Pa. Super. 2018) (citations and quotation marks omitted).

Rule 704 provides:

(A) Time for Sentencing.

(1) Except as provided by Rule 702(B), sentence in a court case shall ordinarily be imposed within 90 days of conviction or the entry of a plea of guilty or nolo contendere.

Pa.R.Crim.P. 704(A)(1). The comment to Rule 704 recognizes that delays in sentencing may be caused by SVP assessments:

Paragraph (A)(2) ... permits the judge to extend the time limit for sentencing under extraordinary circumstances only. For example, additional pre-sentence procedures may be required by statute. See 42 Pa.C.S. §§ 9799.11-9799.41 for pre-sentence assessment and hearing procedures for persons convicted of sexually violent offenses.

Pa.R.Crim.P. 704, comment.

We have explained:

With respect to the sanction for a violation of Rule 704, this Court has held, [t]he appropriate remedy for a violation of Pa.R.Crim.P. 1405 [now Pa.R.Crim.P. 704], is discharge. However, the remedy does not automatically apply whenever a defendant is sentenced more than [ninety] days after conviction without good cause. Instead, a violation of the [ninety-day] rule is only the first step toward determining whether the remedy of discharge is appropriate.

….

[A] defendant who is sentenced in violation of Pa.R.Crim.P. 1405 [now Pa.R.Crim.P. 704] is entitled to a discharge only where the defendant can demonstrate that the delay in sentencing prejudiced him or her. ... [T]o determine whether discharge is appropriate, the trial court should consider: (1) the length of the delay[;] … (2) the reason for the improper delay; (3) the defendant's timely or untimely assertion of his rights; (4) any resulting prejudice to the interest protected by his speedy trial and due process rights. Prejudice should not be presumed by the mere fact of an untimely sentence. Our approach has always been to determine whether there has in fact been prejudice, rather than to presume that prejudice exists. The court should examine the totality of the circumstances, as no one factor is necessary, dispositive, or of sufficient importance to prove a violation.

Commonwealth v. Diaz, 51 A.3d 884, 887 (Pa. Super. 2012) (citation omitted). Additionally, "Rule 704 [is not] aimed at addressing or eliminating clerical error. Protecting the accused from inexcusable or intentional delay on the part of the court or the Commonwealth, the 'whim' or power of the state, is the underpinning of the right to a speedy trial." Id. at 889 (citation omitted).

Upon review, we agree that the 323-day delay was lengthy. See Appellant's Brief at 13-14. However, we disagree with Appellant's claim that the Commonwealth caused the delay. Id. at 13. Appellant asserts it was "the responsibility of the Commonwealth, not the Court, to request [the SOAB] evaluation." Id. at 13 n.3. Appellant disregards the statutorily imposed role of the trial court:

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 executive director of the board within ten days of the date of conviction for the sexually violent offense.

42 Pa.C.S.A. § 9799.24(a) (emphasis added).

The trial court acknowledged it "inadvertently" failed to order the assessment. Trial Court Opinion, 6/24/22, at 2. Because of the oversight, the court rescheduled sentencing for December 13, 2021. See Order, 9/23/21, at 1 (unnumbered). Dr. Muscari, the SOAB evaluator, was unavailable for the December hearing. The court continued the hearing to March 10, 2022; Appellant did not object. See Motion to Continue Sentencing, 12/13/21, at 2 (unnumbered). Dr. Muscari then failed to appear at the March 10, 2022 hearing. See N.T., 3/10/22, at 2. At that time, Appellant's counsel raised this Court's decision in Commonwealth v. Aumick, 2022 WL 533997 (Pa. Super. Feb. 23, 2022) (withdrawn), reargument granted, 1529 EDA 2020, 2022 WL 1439520, at *1 (Pa. Super. Ct. May...