J-A19034-15
2015 PA Super 161
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KEITH PENNYBAKER, :
:
Appellant : No. 1068 WDA 2014
Appeal from the Judgment of Sentence entered on May 23, 2014
in the Court of Common Pleas of Allegheny County,
Criminal Division, No. CP-02-CR-0016074-2013
BEFORE: BENDER, P.J.E., JENKINS and MUSMANNO, JJ.
OPINION BY MUSMANNO, J.: FILED JULY 28, 2015
Keith Pennybaker (“Pennybaker”) appeals from the judgment of
sentence imposed following his conviction of failure to comply with the
sexual offender registration requirements imposed by 42 Pa.C.S.A.
§ 9799.10, et seq., also known as the Sexual Offender Registration and
Notification Act (“SORNA”).1 We affirm.
Pennybaker was convicted of rape2 at a non-jury trial in 1997. As a
result thereof, he became subject to a mandatory registration requirement
1
See 18 Pa.C.S.A. § 4915.1(a)(2).
2
See 18 Pa.C.S.A. § 3121.
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for sexual offenders.3 Because rape is a Tier III sexual offense under
SORNA, Pennybaker became subject to a lifetime registration requirement.
See 42 Pa.C.S.A. § 9799.14(d)(2) (establishing rape as a Tier III sexual
offense); see also id. § 9799.15(a)(3) (requiring an individual convicted of
a Tier III sexual offense to register for life). In 2011, Pennybaker was
released from prison, and complied with his registration requirement on at
least two occasions. Pennybaker was thereafter incarcerated for six months
in 2013 and, prior to his release, was notified of the requirement to update
his residence registration upon his release from prison.4 Nevertheless,
following his release on September 18, 2013, Pennybaker failed to comply
with his SORNA registration requirement.
3
At the time of Pennybaker’s conviction, the registration period for a
defendant convicted of a sexual offense was governed by 42 Pa.C.S.A.
§ 9791, et seq., commonly referred to as “Megan’s Law.” Under Megan’s
Law, a defendant convicted of rape was subject to a 10-year registration
requirement. See 42 Pa.C.S.A. § 9793 (effective until December 20, 2012)
(imposing a 10-year registration requirement for a defendant convicted of,
inter alia, rape). SORNA was enacted on December 20, 2011, and became
effective on December 20, 2012. When it became effective, SORNA applied
to sexual offenders already required to register. See 42 Pa.C.S.A.
§ 9799.10; see also Commonwealth v. Giannantonio, 114 A.3d 429,
431-32 (Pa. Super. 2015) (stating that the prior registration requirements of
Megan’s Law expired when SORNA became effective). Therefore, on the
date SORNA became effective, Pennybaker became subject to the
registration requirements imposed by SORNA. See Giannantonio, 114
A.3d at 431-32. Notably, Pennybaker does not contest the fact that he is
subject to the registration requirements imposed by SORNA.
4
Pursuant to 42 Pa.C.S.A. § 9799.15(g)(2), Pennybaker was required to
appear at an approved registration site within three business days of his
release from prison to provide current information relating to his change in
residence.
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On October 4, 2013, Pennybaker was charged with one count of failure
to comply with registration requirements under 18 Pa.C.S.A. § 4915.1. The
matter proceeded to a non-jury trial on April 4, 2014, at which Pennybaker
admitted that he was aware of his registration requirement and that he had
failed to comply with it. At the conclusion of the trial, the trial court found
Pennybaker guilty of violating section 4915.1(a)(2). On April 10, 2014, the
Commonwealth filed a Notice of Intention to Seek Mandatory Sentence,
pursuant to 42 Pa.C.S.A. § 9718.4(a)(1)(iii). In response, Pennybaker filed
a Motion to Bar Application of Mandatory Minimum Sentence and,
subsequently, an Amended Motion. On April 29, 2014, the Commonwealth
filed a Motion to Apply Mandatory Minimum Sentence. Pennybaker filed a
Reply Brief on May 7, 2014. At the sentencing hearing on May 23, 2014, the
trial court denied Pennybaker’s Motion and sentenced him to the mandatory
minimum period of incarceration of 36 to 72 months. Pennybaker filed a
Post-Sentence Motion on May 30, 2014, and Additional Persuasive Authority
on June 2, 2014. On June 3, 2014, the trial court denied Pennybaker’s Post-
Sentence Motion.
On July 3, 2014, Pennybaker filed a timely Notice of Appeal. On
December 1, 2014, after several requests for extension of time, Pennybaker
filed a Concise Statement of Errors Complained of on Appeal. On December
23, 2014, the trial court filed its Pennsylvania Rule of Appellate Procedure
1925(a) Opinion.
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On appeal, Pennybaker raises the following issue for our review:
Whether pursuant to the Supreme Court of the United States[’]
decision in Alleyne v. United States,[5] 42 Pa.C.S.A. § 9718.4
is unconstitutional[,] as it only requires a judge to find a fact
triggering a mandatory minimum sentence – [] Pennybaker’s
SORNA registration period length – by a preponderance of the
evidence, and not by a jury beyond a reasonable doubt?
Brief for Appellant at 8 (capitalization omitted, footnote added).
Our standard of review regarding the applicability of a mandatory
sentencing provision is as follows:
Generally, a challenge to the application of a mandatory
minimum sentence is a non-waiveable challenge to the legality
of the sentence. Issues relating to the legality of a sentence are
questions of law, as are claims raising a court’s interpretation of
a statute. Our standard of review over such questions is de
novo and our scope of review is plenary.
Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa. Super. 2012).
Pursuant to 42 Pa.C.S.A. § 9799.15, Pennybaker, as a convicted
sexual offender, was required to appear at an approved registration site
within three business days of his release from prison to provide current
information relating to his change in residence. See 42 Pa.C.S.A.
§ 9799.15(g)(2). An individual, such as Pennybaker, who is subject to
registration under 42 Pa.C.S.A. § 9799.13, commits an offense if he
knowingly fails to verify his address or be photographed as required by 42
Pa.C.S.A. § 9799.15. See 18 Pa.C.S.A. § 4915.1(a)(2). Additionally, any
individual subject to lifetime SORNA registration under sections 9799.13 and
5
133 S. Ct. 2151 (2013).
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9799.15, who fails to comply with such registration requirement, is subject
to a mandatory sentence of at least three years in prison. See 42 Pa.C.S.A.
§ 9718.4(a)(1)(iii).6
Pennybaker contends that the trial court erred when it sentenced him
to a mandatory minimum sentence, under section 9718.4, based on his
SORNA registration requirement because, he contends, the length of his
registration requirement is a “fact” that must be found by a jury beyond a
reasonable doubt pursuant to Alleyne. Brief for Appellant at 14.
Pennybaker argues that 42 Pa.C.S.A. § 9718.4 is unconstitutional because it
requires a judge to find a “fact” that triggers the application of a mandatory
minimum sentence (i.e., the length of the registration requirement) by a
“preponderance of the evidence standard,” rather than by a jury applying a
“beyond a reasonable doubt” standard. Brief for Appellant at 14. While
Pennybaker acknowledges that prior convictions are an exception to Alleyne
and Apprendi v. New Jersey, 530 U.S. 466 (2000), he nevertheless
asserts that a “prior conviction” is separate from the “sentence” imposed for
the prior conviction. Brief for Appellant at 20. In support of his argument,
Pennybaker points out that the statute denoting the various SORNA
registration requirements are found in the Sentencing Code rather than the
Crimes Code. Id. at 20 n.3. Pennybaker claims that the registration
6
Section 9718.4 provides for the imposition of a lesser mandatory minimum
sentence (2 years) for individuals who are subject to 15 years of SORNA
registration. See 42 Pa.C.S.A. § 9718.4(a)(1)(i).
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requirement imposed following his conviction of rape was a part of his
sentence and not a part of his prior conviction. Brief for Appellant at 20.7
Additionally, Pennybaker asserts that a SORNA registration requirement
constitutes a “collateral consequence” of a conviction, rather than a
punishment. Id. at 22. For this reason, Pennybaker contends, the lifetime
registration requirement imposed as part of his sentence for the rape
conviction is not a prior conviction, but, rather, constitutes a fact which the
finder of fact is required to determine beyond a reasonable doubt pursuant
to Alleyne. Brief for Appellant at 14.
“We begin our analysis by recognizing that there is a strong
presumption in the law that legislative enactments do not violate the
constitution. Moreover, there is a heavy burden of persuasion upon one who
challenges the constitutionality of a statute.” Commonwealth v. Barud,
7
In support of his argument, Pennybaker relies on Commonwealth v.
Hainesworth, 82 A.3d 444 (Pa. Super. 2013), and Commonwealth v.
Nase, 104 A.3d 528 (Pa. Super. 2014). However, both Hainesworth and
Nase are factually and procedurally distinguishable from the instant case.
In each of those cases, the defendant had pled guilty to a sexual offense
based, in part, on either the absence of a registration period, or a limited
registration period that was in place under Megan’s Law at the time of the
plea agreement. When the statutory registration period was subsequently
enlarged by SORNA, the defendants challenged the imposition of a
registration period beyond what than they had agreed to pursuant to their
respective plea bargains. Relying on contract principles, this Court ruled
that the defendants were not subject to a SORNA registration period beyond
what they had bargained for in their negotiated plea agreements. See
Hainesworth, 82 A.3d at 450; Nase, 104 A.3d at 535. Here, Pennybaker
did not enter into a negotiated plea agreement; rather, he was convicted of
rape by a jury. Moreover, Pennybaker does not contest his lifetime
registration requirement under SORNA. Thus, his reliance on Hainesworth
and Nase is misplaced.
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681 A.2d 162, 165 (Pa. 1996) (citations omitted). As a matter of statutory
construction, we presume “the General Assembly does not intend to violate
the Constitution of the United States or of this Commonwealth.” 1 Pa.C.S.A.
§ 1922(3). A statute will not be declared unconstitutional unless it clearly,
palpably, and plainly violates the Constitution, and all doubts are to be
resolved in favor of a finding of constitutionality. Commonwealth v.
Hendrickson, 724 A.2d 315, 317 (Pa. 1999).
In Alleyne, the United States Supreme Court held that “[a]ny fact
that, by law, increases the penalty for a crime is an ‘element’ that must be
submitted to the jury and found beyond a reasonable doubt.” Alleyne, 133
S. Ct. at 2155. However, in Almendarez-Torres v. United States, 523
U.S. 224 (1998), the Supreme Court stated that the fact of a prior conviction
does not need to be submitted to a jury and found beyond a reasonable
doubt. Id. at 1232. The Alleyne Court explicitly noted that Almendarez-
Torres remains good law, and is a narrow exception to the holding of
Alleyne. See Alleyne, 133 S. Ct. at 2160 n.1.8
Therefore, as the law currently stands, the imposition of a mandatory
minimum sentence based on a prior conviction is not unconstitutional. See
8
We observe that several Pennsylvania sentencing enhancement statutes
have been rendered unconstitutional pursuant to Alleyne, including, inter
alia, 18 Pa.C.S.A. § 6317 (relating to sentences for drug crimes committed
in school zones); 18 Pa.C.S.A. § 7508 (relating to sentences for drug
trafficking); 42 Pa.C.S.A. § 9712 (relating to sentences for offenses
committed with firearms); 42 Pa.C.S.A. § 9713 (relating to sentences for
offenses committed on public transportation); and 42 Pa.C.S.A. § 9718
(relating to sentences for offenses against persons under 16 years of age).
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Commonwealth v. Hale, 85 A.3d 570, 585 n.13 (Pa. Super. 2014) (holding
that prior convictions are the remaining exception to Apprendi and
Alleyne). However, “in cases where the fact which increases the maximum
penalty is not a prior conviction and requires a subjective assessment,
anything less than proof beyond a reasonable doubt before a jury violates
due process.” Commonwealth v. Aponte, 855 A.2d 800, 811 (Pa. 2004)
(emphasis supplied).
Here, the statute at issue, 42 Pa.C.S.A. § 9718.4(a)(1)(iii), does not
provide for any fact-finding, nor does it make the application of the
mandatory minimum sentence contingent on any factual question that has
not already been determined. See Aponte, 855 A.2d at 811 (noting that
the enhancement statute at issue in that case, relating to prior convictions,
was not illegal because application of the statute was not contingent on any
fact-finding or any factual question that had not already been determined).
Moreover, the length of Pennybaker’s SORNA registration requirement
is not a “fact” that requires a subjective assessment. See Aponte, 855
A.2d at 811. Rather, the length of Pennybaker’s SORNA registration
requirement is established by statute. See 42 Pa.C.S.A. § 9799.14(d)(2)
(establishing rape as a Tier III sexual offense); see also id.
§ 9799.15(a)(3) (requiring an individual convicted of a Tier III sexual
offense to register for life). As such, the fact that Pennybaker is subject to
SORNA registration for the rest of his life is, like statutes enhancing
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sentences based on prior convictions, “an objective fact that initially was
cloaked in all the constitutional safeguards, and is now a matter of public
record.” Aponte, 855 A.2d at 811. Because the length of Pennybaker’s
registration requirement was mechanical and capable of objective proof,
there was no need for the jury to determine this issue. See id. Accordingly,
we conclude that the sentencing enhancement contained in section
9718.4(a)(1)(iii) is constitutionally valid, and reject Pennybaker’s
constitutional challenge thereto. Having determined that Pennybaker was
properly sentenced under section 9718.4(a)(1)(iii), we affirm the judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2015
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