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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
RONALD BURWELL III, :
:
Appellant : No. 836 WDA 2014
Appeal from the Judgment of Sentence May 6, 2014
In the Court of Common Pleas of Fayette County
Criminal Division No(s).: CP-26-CR-0001746-2013
BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 11, 2014
Appellant, Ronald Burwell, III, appeals from the judgment of sentence
entered in the Fayette County Court of Common Pleas. He avers the
requirement for him to register for a lifetime under the Pennsylvania Sexual
Offender Registration and Notification Act1 (“SORNA”) is unconstitutional
because the statutory maximum sentence for his offense, aggravated
indecent assault,2 is ten years. Pursuant to Commonwealth v.
McDonough, 96 A.3d 1067 (Pa. Super. 2014), we affirm.
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9799.10-9799.41.
2
18 Pa.C.S. § 3125(a)(8).
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On January 30, 2014, for acts involving a complainant less than
thirteen years of age, Appellant pleaded guilty to aggravated indecent
assault, statutory sexual assault, indecent assault, and corruption of
minors.3 On May 6, 2014, the trial court imposed a sentence of 3½ to 7
years’ imprisonment for aggravated indecent assault.4 The court found
Appellant was not a sexually violent predator, but ordered him to comply
with lifetime registration under Section 9799.23 of SORNA. Appellant filed a
timely post-sentence motion, which the court denied. Appellant then took
this timely appeal and complied with the court’s order to file a Pa.R.A.P.
1925(b) statement.
On appeal, Appellant presents two overlapping issues for our review,
which we address together. First, he argues his lifetime registration
requirement is illegal and unconstitutional because the statutory maximum
sentence for aggravated indecent assault is ten years’ imprisonment.
Appellant also states, “It has been previously suggested that the registration
requirements of SORNA and previously the various versions of Megan’s Law,
are actually civil penalties.” Appellant’s Brief at 10. He reasons, “[I]f that is
actually the case, then the court should not be imposing the requirements at
the time of sentencing,” because the restrictions “can also result in criminal
3
18 Pa.C.S. §§ 3122.1(b), 3126(a)(7), 6301(a)(1)(ii).
4
The trial court stated the sentence was in the aggravated range and
consistent with the parties’ guilty plea agreement. Amended Sentence
Order, 5/6/14, at ¶ 20.
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penalties . . . if the defendant does not comply with the restrictions and
requirements.” Id. Appellant then relies on Commonwealth v. Williams,
832 A.2d 962 (Pa. 2003), for the proposition that “penalties for lifetime
registration with . . . potential for lifetime imprisonment[ ] were manifestly
in excess of what was needed to ensure compliance.” Appellant’s Brief at
11. In his second issue, Appellant avers SORNA is unconstitutional because
“the requirements for registration and classification of offenses into tiers are
not in line with what is required to accomplish rehabilitation” and
“constitute[ ] unusual punishment.” Id. at 12. We find no relief is due.
We find the Superior Court’s recent decision in McDonough, 96 A.3d
1067, controls our analysis. Preliminarily, we note that McDonough was
issued on July 21, 2014, approximately three weeks after the trial court filed
its opinion, but prior to Appellant’s filing of his appellate brief. Appellant’s
attorney, Michael J. Garofalo, Esq. (“Counsel”) of the Fayette County Public
Defender’s Office,5 was also the attorney for the defendant/appellant in
McDonough. Counsel now raises issues identical to those in McDonough—
which this Court rejected—yet makes no mention of the McDonough
decision. We remind Counsel that the argument in an appellate brief shall
5
Counsel represented Appellant at the plea hearing as well as in the instant
appeal.
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include “discussion and citation of authorities as are deemed pertinent.”6
See Pa.R.A.P. 2119(a).
We now review the McDonough decision. This Court summarized,
On December 20, 2011, the legislature replaced
Megan's Law with SORNA, effective December 20, 2012, to
strengthen registration requirements for sex offenders and
to bring Pennsylvania into compliance with the Adam
Walsh Child Protection and Safety Act, 42 U.S.C.A. §
16901[.] Section 9799.14 of SORNA establishes a three-
tiered system of specifically enumerated offenses requiring
registration for sexual offenders for differing lengths of
time. Pursuant to section 9799.15(a)(1), a person
convicted of a Tier I offense . . . must register for 15
years. A Tier II offender must register for 25 years, while
a Tier III offender must register for the remainder of his or
her life. 42 Pa.C.S. § 9799.15(a)(2), (a)(3).
McDonough, 96 A.3d at 1070 (some citations omitted).
In McDonough, the defendant, who was not found to be a sexually
violent predator, was convicted of a “Tier I” offense and ordered to register
for fifteen years. Id. at 1068, 1070, 1071. On appeal, he argued,
[I]t is unconstitutional and illegal to require an individual
to register as a sex offender for 15 years for a crime that
carries a maximum penalty of only two years in prison[
and] that the registration requirements of SORNA and its
predecessor statute, Megan's Law,[ ] are not civil in nature
because they impose restrictions and requirements which,
if violated, can result in imprisonment.
Id. at 1070. The defendant also relied on Williams, 832 A.2d 962, “to
6
Although the defendant in McDonough sought allowance for appeal with
our Supreme Court on July 31, 2014, we a Superior Court “decision remains
binding precedent as long as the decision had not been overturned by our
Supreme Court.” See In re S.T.S., 76 A.3d 24, 44 (Pa. Super. 2013),
appeal denied, 91 A.3d 163 (Pa. 2014).
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support his argument that requiring an individual to register for many years
longer than the maximum penalty of the crime itself is excessive and the
registration provisions should be struck down as unconstitutional punishment
under the state and federal constitutions.” McDonough, 96 A.3d at 1070.
This Court disagreed. We first noted,
In Williams, our Supreme Court was asked to decide
whether certain provisions of Megan's Law II were
constitutional as it applied to sexually violent predators
(SVP's). The Williams Court specifically held that the
registration, notification, and counseling provisions of
Megan's Law II, to offenders deemed to be SVP's, were
non-punitive, regulatory measures supporting a legitimate
governmental purpose. However, the Court did find that
the prescribed penalties that attach to SVP's for failure to
register and verify their residence were unconstitutionally
punitive and, therefore, invalidated those provisions.
McDonough, 96 A.3d at 1070-71 (citations omitted). This Court then
considered the Pennsylvania Supreme Court’s discussion in Commonwealth
v. Gaffney, 733 A.2d 616 (Pa. 1999):
Because we do not view the registration requirements as
punitive but, rather, remedial, we do not perceive
mandating compliance by offenders who have served
their maximum term to be improper. Furthermore, the
fact that an offender may be held until such information is
furnished is no different from confining someone in a civil
contempt proceeding. While any imprisonment, of course,
has punitive and deterrent effects, it must be viewed as
remedial if release is conditioned upon one's willingness to
comply with a particular mandate.
McDonough, 96 A.3d at 1077 (quoting Gaffney, 733 A.2d at 622). The
McDonough court also referred to Commonwealth v. Benner, 853 A.2d
1068 (Pa. Super. 2004):
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The registration provisions of Megan's Law do not
constitute criminal punishment. The registration
requirement is properly characterized as a collateral
consequence of the defendant's plea, as it cannot be
considered to have a definite, immediate and largely
automatic effect on a defendant's punishment.
* * *
Because the registration requirements under Megan's Law
impose only collateral consequences of the actual
sentence, their application is not limited by the factors that
control the imposition of sentence. T hus, while a
defendant may be subject to conviction only under
statutes in effect on the date of his acts, and sentence
configuration under the guidelines in effect on that same
date, the application of the registration requirements
under Megan's Law is not so limited. This is so due to the
collateral nature of the registration requirement.
McDonough, 96 A.3d at 1071 (quoting Benner, 853 A.2d at 1070-71).
The McDonough Court then held: “While Gaffney and Benner were
decided prior to the effective date of SORNA, the same principles behind the
registration requirements for sexual offenders under Megan's Law apply to
those subject to SORNA. Namely, to effectuate, through remedial
legislation, the non-punitive goal of public safety.” McDonough, 96 A.3d at
1071. The court thus rejected the defendant’s claim that SORNA was
unconstitutional. Id.
As stated above, Appellant advances identical arguments in the case
sub judice. We find McDonough is directly on point and accordingly find no
relief due on his claim.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/2014
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