Commonwealth v. Carr

• Decision Date: 30 August 2021
• Docket Number: No. 1684 WDA 2019,1684 WDA 2019
• Parties: COMMONWEALTH of Pennsylvania v. Shawn CARR, Appellant
• Court: Pennsylvania Superior Court

262 A.3d 561

COMMONWEALTH of Pennsylvania

v.Shawn CARR, Appellant

No. 1684 WDA 2019

Superior Court of Pennsylvania.

Argued January 26, 2021

Filed: August 30, 2021

Steven A. Tehovnik, Public Defender, Pittsburgh, for appellant.

Daniel A. Vernacchio, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.

OPINION BY BOWES, J.:

Shawn Carr appeals from his July 23, 2019 judgment of sentence of two years of probation, which was imposed after he pleaded guilty to indecent assault. After careful review, we vacate Appellant's judgment of sentence and remand with instructions.

This appeal largely pertains to the special probation conditions imposed upon Appellant, who was charged by criminal information with a number of offenses in connection with a sexual assault he perpetrated against an adult victim, Somalya Robinson, on July 14, 2018, in an apartment located near downtown Pittsburgh, Pennsylvania. As it is relevant to our disposition, we note that Appellant is deaf and communicates primarily through American Sign Language ("ASL") and interpreters. The victim is also deaf.

On July 23, 2019, Appellant pled guilty to indecent assault in exchange for the Commonwealth withdrawing the remaining charges. See N.T. Guilty Plea & Sentencing, 7/23/19, at 5-17. That same day, Appellant was sentenced¹ and ordered to comply with the following conditions:

Contact :

The offender is not to have contact with children under the age of 18, beyond incidental business contact, unless approved by the probation/parole officer. The offender is not to loiter within 100 feet of school yards, parks, playgrounds, arcades, or other places primarily used by children under the age of 18.

The offender shall further not associate with children under the age of 18, except in the presence of a responsible adult who is aware of the nature of the offender's current offense, criminal background[,] and who has been approved by the probation officer.

....

Employment :

The defendant shall not be employed in or participate in any volunteer activity that involves contact with children, except under circumstances approved in advance and in writing by the supervising probation/parole officer.

....

Computer/Internet Access :

The defendant shall not possess or use a computer with access to any "online computer service," or any other electronic device that allows internet connections and/or access at any location (including employment) without the prior written approval of the probation/parole officer. This includes any internet services provided, bulletin board system or any other public or private computer network.

Charge Specific Special Conditions, 5/26/20, at 1-2. Appellant was also informed of his obligation to register as a sexual offender under Subchapter H of the Pennsylvania Sentencing Code. See 42 Pa.C.S. §§ 9799.10 - 9799.42. He was not adjudicated a sexually violent predator ("SVP").

During Appellant's colloquy, he objected to the conditions of probation restricting his contact with minors and curtailing his use of computers and electronic devices with Internet capabilities. See N.T. Guilty Plea & Sentencing, 7/23/19, at 13-15. Specifically, Appellant asserted that there was an insufficient nexus between these proscriptions and his crimes. He argued further the technological probation restrictions would be too "onerous" due to his reliance upon such technology to communicate effectively as a deaf person. Id . at 15.

At the conclusion of the hearing, the court sentenced Appellant to comply with the above-quoted probation conditions. Id . at 33-34. The court also spoke to the objections raised by Appellant:

I think based on a totality of the circumstances evaluation, that all of the charge[-]specific conditions apply, with one caveat. I will note that it will be the duty of his [probation officer] to determine to what extent he may use the internet to communicate for bona fide employment, educational or treatment purposes. And I will note that on the form.

Id . On the order, the court noted that Appellant's probation officer must "tailor the Internet ban" to accommodate Appellant's "hearing impairment." Charge Specific Special Conditions, 5/26/20, at 3.²

On August 1, 2019, Appellant filed a timely post-sentence motion challenging the above-quoted conditions. Specifically, he asserted the conditions were not sufficiently justified by the underlying circumstances of the instant offense and his rehabilitative needs. He also raised certain constitutional arguments.³ On October 17, 2019, the court held a hearing on Appellant's post-sentence motion. Appellant relied upon Commonwealth v. Houtz , 982 A.2d 537, 539-40 (Pa.Super 2009), wherein this Court concluded that a probation condition providing that a defendant "not possess or have access to a computer, or otherwise access the Internet," was unreasonable where there was "no nexus between the offense charged and access to a computer" or the Internet. Thus, he asserted that his probation conditions were unreasonable.

The sentencing court, however, credited the Commonwealth's counterargument that Appellant's misconduct had targeted deaf victims in the past and concluded that he posed a potential danger to children, as well:

[Appellant] is very aware that he, himself, has a vulnerability. He is challenged in his abilities to communicate. Being aware of all that limitation entails in his day-to-day life, he has nonetheless sought out victims who are similarly challenged in their ability to communicate in both of these cases. ...^[4] No one in society really is more vulnerable than a child.

My concern in fashioning the sentence that I did was that having struck out now twice with victims who are challenged in the way that the two victims in these cases are challenged, he might move on to a different class of victim who is equally vulnerable.

N.T. Post-Sentence Hearing, 10/17/19, at 9-10. Over objections from Appellant's counsel, the court also emphasized that Appellant's presentence report indicated that he had been charged with, but not yet convicted of, possession and creation of child pornography in Virginia. Id . at 8-10. Thus, it concluded that Appellant's probation conditions concerning minors were "not unreasonable" in view of the totality of the circumstances. Id . at 10.

With respect to the technology restrictions, the sentencing court also noted that it was "troubled by [Appellant's evident] fixation with pornography" and again referenced the outstanding Virginia charges:

There is a pattern here of [Appellant] having this sort of unnatural interest in pornography coupled with, as I said before, these matters that he has outstanding in Fairfax County, Virginia. They're troubling to the Court and I think that the imposition of this condition [struck] a balance between the protection of society and [Appellant's] liberty interest.

....

You know, [defense counsel,] if you or [the assistant district attorney] wants to go home and search the [I]nternet for adult porn, that is your business but you have not been convicted of sexually related crimes and [Appellant] has. ... [I]t's without question in my mind that the provision is appropriate[.]

Id . at 19. The sentencing court then suggested that it might be open to scaling back these restrictions if Appellant achieved a favorable outcome with respect to the then-pending charges in Virginia:

Now, keeping in mind, of course, I'm leaving the door open here. [Appellant] is going to Fairfax, Virginia, take care of his business in Virginia, and deal with those child porn cases and those computer-related child solicitation cases. Look, if he hits a home run and he's found not guilty or those charges go away, I'm open to revisiting this issue and tailoring the ban on the [I]nternet usage more narrowly, I have an open mind in that regard, but I'm sure not going to do it now, not with those on the table. That would be reckless of me to do.

Id . at 20-21. Accordingly, the sentencing court denied Appellant's motion.

Appellant filed a timely notice of appeal to this Court. On November 21, 2019, the sentencing court ordered Appellant to filed a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) within twenty-one days. No extensions were requested or granted. On December 23, 2019, Appellant filed an untimely concise statement through counsel. On March 19, 2020, the sentencing court forwarded a letter to this Court indicating that no opinion would be filed pursuant to Rule 1925(a).

Appellant has raised four issues in his brief to this Court:

I. Where Appellant's pled-to offense did not involve the Internet or a computer and he has a constitutional right to access the Internet, and the sentencing court imposed a condition of probation prohibiting Appellant from possessing any device with access to the Internet, did the sentencing court abuse its sentencing discretion and/or impose an illegal sentence?

II. Where Appellant's pled-to offense did not involve minors, and the sentencing court imposed a condition of probation prohibiting Appellant from having contact with minors, did the sentencing court abuse its sentencing discretion and/or impose an illegal sentence?

III. Where the sentencing court imposed a condition of probation allowing unannounced, suspicion-less searches, did the sentencing court abuse its sentencing discretion and/or impose an illegal sentence?

IV. Whether Appellant's sentence is illegal because it requires him to register under Pennsylvania's sexual offender Internet registry and it requires him to register under an unconstitutional registration scheme?

Appellant's brief at 5 (cleaned up; issues reordered).

Before engaging with the merits of these issues, we must address the untimeliness of Appellant's Rule 1925(b) concise statement. When Appellant was directed and required to file it, he was represented by Steven Tehovnik, Esquire, of the Public Defender's Office of Allegheny County. "An...