J-S45023-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
CALEB DANIEL FOX
Appellant No. 1364 MDA 2014
Appeal from the Judgment of Sentence July 1, 2014
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002759-2013
BEFORE: BOWES, WECHT AND FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED JANUARY 06, 2017
This matter is again before this Court upon remand from the Supreme
Court. We vacate Appellant’s judgment of sentence in part, and remand for
imposition of a fifteen-year reporting requirement under the Sex Offender
Registration and Notification Act (“SORNA”), 42 Pa.C.S. § 9799.10 et seq.,
consistent with the dictates of our Supreme Court’s decision in
Commonwealth v. Lutz-Morrison, 143 A.3d 891 (Pa. 2016).
The trial court previously set forth the following facts:
On or about June 4, 2013, [Appellant’s] computer was identified
by Special Agent Nicole Laudeman of the Pennsylvania Attorney
General’s Office as having potential download candidate (source)
for at least seventeen (17) files of investigative interest with
child pornographic content. On this same day, Special Agent
Laudeman was able to make direct contact to [Appellant’s]
computer . . . to download five (5) video files which each depict
children under the age of eighteen (18) years engaged in sexual
* Former Justice specially assigned to the Superior Court.
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acts and/or poses and is defined as child pornography in
violation of the Pennsylvania Crimes Code Section 6312 – Sexual
Abuse of Children.
Trial Court Opinion, 1/13/15, at 1. Based on the foregoing, Appellant was
charged with seventeen counts of child pornography pursuant to 42 Pa.C.S.
§ 6312(d), and one count of criminal use of a communication facility.
Appellant pled guilty to seven counts of child pornography and the single
count of criminal use of a communications facility. Subsequently, the court
imposed an aggregate sentence of twenty-four to thirty-two months
incarceration and two years probation. In addition, the court classified
Appellant as a Tier III offender on the basis that he pled guilty to multiple
Tier I offenses under SORNA, thus subjecting him to lifetime reporting
requirements.
Following his judgment of sentence, Appellant filed a timely motion to
modify his sentence, which the court denied, and a timely notice of appeal to
this court. On appeal, we vacated Appellant’s judgment of sentence and
remanded to the trial court to award a single day of credit for time served.
Commonwealth v. Fox, 134 A.3d 102 (Pa.Super. 2015) (unpublished
memorandum). However, relying on then-binding Superior Court precedent,
we found the trial court did not err in subjecting Appellant to lifetime
registration under SORNA based on his guilty plea to multiple Tier I offenses.
Id. at 12.
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Upon remand, the trial court resentenced Appellant with credit for one
day time served, and again classified him as a Tier III offender. Appellant
appealed to this Court raising another challenge to his Tier III classification.
Before this Court could decide Appellant’s second appeal, the Pennsylvania
Supreme Court permitted Appellant to file a petition for allowance of appeal
from our first decision nunc pro tunc. On October 20, 2016, the High Court
vacated that decision, and remanded this matter for proceedings consistent
with Lutz-Morrison, supra.
In Lutz-Morrison, the Supreme Court considered the proper
construction of language triggering the lifetime registration requirement
contained in section 9799.14 of SORNA. That section reads, in relevant
part:
(a) Tier system established.—Sexual offenses shall be
classified in a three-tiered system composed of Tier I
sexual offenses, Tier II sexual offenses and Tier III sexual
offenses.
(b) Tier I sexual offenses.—The following offenses shall be
classified as Tier I sexual offenses:
...
(9) 18 Pa.C.S. § 6312(d) (relating to sexual abuse of
children).
...
(d) Tier III sexual offenses.—The following offenses shall be
classified as Tier III sexual offenses:
...
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(16) Two or more convictions of offenses listed as Tier I or
Tier II sexual offenses.
42 Pa.C.S. § 9799.14(a)-(d). Specifically, the High Court construed the
phrase “two or more convictions,” as stated in section 9799.14(d)(16), as
requiring “an act, a conviction, and a subsequent act to trigger lifetime
registration for multiple offenses subject to a fifteen- or twenty-five-year
period of registration.” Lutz-Morrison, supra at 895 (relying on A.S. v.
Pa. State Police, 143 A.3d 896 (Pa.Super. 2016).
Here, Appellant was charged in a single information arising from the
same criminal episode. Appellant was a first-time offender and pled guilty to
seven Tier I offenses. Appellant was not determined to be a sexually violent
predator. As Appellant’s conduct amounted to one act and one conviction
under Lutz-Morrison, the trial court erred in classifying him a Tier III
offender subject to lifetime reporting requirements. Thus, we vacate
Appellant’s classification as a Tier III offender, and remand for resentencing
to classify Appellant as a Tier I offender subject to a fifteen-year reporting
requirement under SORNA.
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Judgment of sentence affirmed in part and reversed in part. Case
remanded for resentencing. Jurisdiction relinquished.
Judge Wecht did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2017
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