J-S87026-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRYANT MAURICE ASTLES
Appellant No. 651 MDA 2016
Appeal from the Judgment of Sentence Dated March 17, 2016
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-0000965-2015
BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY SOLANO, J.: FILED JANUARY 24, 2017
Appellant, Bryant Maurice Astles, appeals from the judgment of
sentence imposed after he pleaded guilty, on October 15, 2015, to one count
of corrupting a minor in violation of 18 Pa.C.S. § 6301(a). Appellant
challenges the lifetime registration requirement to which he agreed under
the Sex Offender Registration and Notification Act, 42 Pa.C.S. §§ 9799.10–
9799.41 (SORNA). On the basis of our Supreme Court’s recent
interpretation of SORNA in A.S. v. Pennsylvania State Police, 143 A.3d
896 (Pa. 2016), and Commonwealth v. Lutz-Morrison, 143 A.3d 891 (Pa.
2016), we vacate the lifetime registration portion of Appellant’s sentence
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S87026-16
and remand for imposition of a fifteen-year reporting requirement under
SORNA.
The Commonwealth stated the factual basis for Appellant’s guilty plea
as follows:
Offense date, August 16th of 2012. On various occasions
between June 1st, 2012 and August 31, 2012, the defendant,
being 18 years of age and upwards, corrupted or tended to
corrupt the morals of a child under the age of 18 years, namely,
a 15-year-old juvenile female by attempting to engage in a sex
act with her.
N.T., 10/15/15, at 6. The Criminal Complaint stated that, according to the
juvenile victim, Appellant raped her, and she subsequently learned she was
pregnant and gave birth to a daughter. Criminal Complaint, 2/25/15, at 1-
2.1
On March 17, 2016, after receipt of Appellant’s guilty plea, the trial
court sentenced Appellant to 9 to 18 months’ incarceration. Consistent with
the terms of Appellant’s negotiated plea, the court directed Appellant’s
lifetime registration as a Tier III sex offender under SORNA.
SORNA requires persons convicted of certain sexual offenses to
register with the Pennsylvania State Police. The statute “established a
____________________________________________
1
On February 25, 2015, the Commonwealth charged Appellant with
statutory sexual assault, 18 Pa.C.S. § 3122.1, but it amended the complaint
on March 11, 2015 to withdraw the statutory sexual assault charge and add
the felony corruption of minors charge, 18 Pa.C.S. § 6301(a), as part of
Appellant’s negotiated plea. Criminal Complaint, 2/25/15; N.T., 10/15/15,
at 2.
-2-
J-S87026-16
three-tiered system for classifying offenses and their corresponding
registration periods.” Lutz-Morrison, 143 A.3d at 892. “The tiers provide
for registration periods of fifteen years (Tier I), twenty-five years (Tier II),
or lifetime (Tier III), depending on the offense(s) and/or circumstances.”
Id., citing 42 Pa.C.S. § 9799.15(a)(1)–(3). Under SORNA, corrupting a
minor in violation of 18 Pa.C.S. §§ 6301(a) is a Tier I offense subject to a
15-year registration requirement. See 42 Pa. C.S. § 9799.14(b)(8). However,
if the defendant has “[t]wo or more convictions of offenses listed as Tier I or
Tier II sexual offenses,” the defendant falls within Tier III and must register
for life. Id. § 9799.14(d)(16). At the time Appellant was convicted in this
case, he had one prior conviction for a Tier I sexual offense — indecent
assault in violation of 18 Pa. C.S. § 3126(a). Order, 3/17/16; see 42 Pa.
C.S. § 9799.14(b)(6) (making indecent assault a Tier I offense under
SORNA). Accordingly, the trial court’s sentencing order included the lifetime
registration requirement, with a notation on the order that read, “Tier I –
subsequent offense.” Order, 3/17/16.
Although Appellant agreed to lifetime registration as part of his plea,
he filed this timely appeal, in which he states his single issue as follows:
Whether the Trial Court erred by classifying [Appellant] as a Tier
III sexual offender, pursuant to 42 Pa.C.S. 9799.14(d)(16)
(multiple convictions), and imposing a lifetime registration
requirement, where the multiple offenses charged in this case
are from the same course of conduct?
-3-
J-S87026-16
Appellant’s Brief at 1. Appellant’s appeal forecast the Supreme Court’s
interpretation of SORNA in A.S. and Lutz-Morrison, opinions that the
Supreme Court issued on August 15, 2016.
The question in Lutz-Morrison was whether the language in Section
9799.14(d)(16) of SORNA — which provides that conviction of “[t]wo or
more convictions of offenses listed as Tier I or Tier II sexual offenses”
requires lifetime registration as a Tier III sexual offender under the statute
— called for a Tier III classification even where the multiple convictions all
were based on a single course of conduct. The defendant in Lutz-Morrison
was convicted of three counts of possession of child pornography on the
basis of videos and images found at the same time on his computer and
iPhone. 143 A.2d at 893-91. Possession of child pornography is a Tier I
offense under SORNA, and because of the multiple counts, the defendant
was classified as a Tier III offender and required to register for life. Id. at
894. The Supreme Court reversed that aspect of the defendant’s sentence,
holding:
[T]he statute, which sets forth a graduated (three-tier) scheme
of registration, encompasses a recidivist philosophy. As such,
the statute requires an act, a conviction, and a subsequent act to
trigger lifetime registration for multiple offenses otherwise
subject to a fifteen- or twenty-five-year period of registration.
Id. at 895. Under that analysis, the defendant’s multiple convictions of
Tier I offenses based on his single course of conduct in possessing the child
-4-
J-S87026-16
pornography did not qualify for a Tier III classification under the statute.2
Appellant contends that, like the defendants in A.S. and Lutz-
Morrison, he was convicted of multiple Tier I offenses that arise out of a
single course of conduct, and that it therefore was error to require his
lifetime registration as a Tier III sexual offender. Resolution of this
contention requires that we determine whether Appellant’s earlier conviction
of indecent assault in violation of 18 Pa. C.S. § 3126(a) arose from the same
course of conduct as that giving rise to his conviction in this case for
corrupting a minor in violation of 18 Pa.C.S. §§ 6301(a). We conclude that
it did.
Both convictions relate to events in the summer of 2012 involving
Appellant and the same victim. Appellant’s conviction of indecent assault
was based on an incident that summer, in which Appellant touched the
victim’s breasts. N.T., 10/6/15,3 at 2-4; Criminal Complaint, 9/12/12, at 2.
____________________________________________
2
A.S. presented the same issue under a predecessor to the SORNA statute,
and the Court decided both A.S. and Lutz-Morrison together and
interpreted the two statutes consistently. In A.S., the defendant was
convicted of sexual abuse of a child and unlawful contact with a child as a
result of his taking and transmission of sexually explicit photographs of a girl
under 16. 143 A.3d at 899. The Court concluded that because the crimes
“arose out of the same course of conduct,” they did not give rise to a Tier III
classification. Id. at 905.
3
The transcript citations to October 6, 2015 reference the pre-trial hearing;
the transcript citations to October 15, 2015 reference the plea hearing.
-5-
J-S87026-16
Appellant was charged with that assault on September 12, 2012, and he
pleaded guilty on June 18, 2013.
The corruption charge at issue in this appeal arose from events that
occurred during the same time period in 2012, when Appellant had sexual
intercourse with the same victim without her consent. Although this crime
occurred in 2012, it was not charged until February 25, 2015, after the
victim came forward with additional information on what had happened that
summer. In explaining the two-and-a-half year time lapse between the
filing of the two charges, the second Criminal Complaint explained:
The victim was asked why she was able to talk about being
sexually assaulted and she accredited the years of therapy,
support and treatment she received that gave her the courage to
come forward about everything that happened that night.
Criminal Complaint, 2/25/15, at 2.
The two criminal complaints that underlie Appellant’s convictions each
allege events that occurred with the same victim in the summer of 2012.
See Criminal Complaint, 2/25/15; Criminal Complaint, 9/12/12. In
discussing the separate charges, the trial court stated, “I don’t think there’s
any question it’s the same criminal episode.” N.T., 10/3/15, at 3. The
Commonwealth agreed, responding, “It’s the same criminal episode,
however, the indecent assault that the defendant had plead guilty to in the
first prosecution . . . was indecent for contact with the victim’s breast
without her consent, the charge the Commonwealth originally brought. And
I understand the criminal information in the [second] case is different.” Id.
-6-
J-S87026-16
at 4. Because the two convictions stemmed from the same course of
conduct, they cannot give rise to a Tier III classification. In the words of
Lutz-Morrison, there was not an “an act, a conviction, and a subsequent
act,” the sequence needed to trigger lifetime registration for multiple
offenses under SORNA. See 143 A.2d at 895.
We note that, unlike the defendants in A.S. and Lutz-Morrison, who
entered open guilty pleas, Appellant agreed to the lifetime registration when
he entered his negotiated guilty plea in this case. However, the fact that
Appellant agreed to lifetime registration as part of his plea on October 15,
2015 is not dispositive of our analysis, as the Supreme Court has construed
the statute to negate the propriety of such lifetime registration in these
circumstances. Within his negotiated plea, Appellant could not agree to a
sentence that is not authorized under the statute. See, e.g.,
Commonwealth v. Kinnan, 71 A.3d 983 (Pa. Super. 2013) (vacating
judgment of sentence and remanding for resentencing where, although
defendant entered a negotiated guilty plea, the Superior Court determined
that the restitution component of defendant’s sentence was improper).
Accordingly, with the benefit of the Supreme Court’s recent statutory
construction, we are compelled to recognize the impropriety of Appellant’s
lifetime registration. We therefore vacate the lifetime registration portion of
Appellant’s sentence and remand for imposition of a fifteen-year reporting
requirement under SORNA. In all other respects, Appellant’s judgment of
sentence is affirmed.
-7-
J-S87026-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/2017
-8-