Commonwealth v. Horning

J-S35039-18

2018 PA Super 204

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAY EDWIN HORNING :
:
Appellant : No. 1442 MDA 2017

Appeal from the Judgment of Sentence July 12, 2017
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0000777-2016,
CP-36-CR-0000778-2016

BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

OPINION BY MURRAY, J.: FILED JULY 11, 2018

Jay Edwin Horning (Appellant) appeals from the judgment of sentence

imposed following his guilty plea at Criminal Information 0778-2016 and

0777-2016 to multiple counts of involuntary deviate sexual intercourse (IDSI)

by forcible compulsion, IDSI of a person less than 16 years of age, rape by

forcible compulsion, rape of a child, and unlawful contact with a minor. 1 For

the reasons that follow, we affirm in part and vacate in part Appellant’s

judgment of sentence.

The trial court summarized the relevant facts and procedural history of

this case as follows:

[O]n January 5, 2016, [Appellant] (DOB 08/23/88) was
charged, at Criminal Information No. 0778-2016, with the crimes
of involuntary deviate sexual intercourse (IDSI) by forcible
compulsion, IDSI of a person less than 16 years of age, rape by
forcible compulsion, rape of a child, and unlawful contact with a
____________________________________________

1 18 Pa.C.S.A. §§ 3123(a)(1), (7), 3121(a)(1), (c), 6318(a)(1).
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minor. These charges relate to a series of sexual assaults that
occurred between 2002 and 2004, when the victim, A.M.G. (DOB
01/09/98), was between four and six years of age. [Appellant]
was between 14 and 16 years of age at the time of the assaults.
The victim did not reveal this abuse until December 14, 2015,
when he was interviewed at the Lancaster County Children’s
Alliance. During a police interview on December 22, 2015,
[Appellant] admitted to sexually assaulting and hurting “people in
the past,” including A.M.G. when A.M.G. was a child and in the
care of [Appellant]’s mother.

On January 15, 2016, [Appellant] was charged at Criminal
Information No. 0777-2016 with the same crimes of IDSI by
forcible compulsion, IDSI of a person less than 16 years of age,
rape by forcible compulsion, rape of a child, and unlawful contact
with a minor. These charges relate to sexual assaults that
occurred during the same time frame, 2002 to 2004, when the
second victim, C.B. (DOB 04/09/99), was between four and six
years of age. The victim revealed this abuse for the first time
during an interview at the Children’s Alliance on January 13, 2016.
At the time [Appellant] was charged with these crimes involving
C.B. and A.M.G.[,] he was over the age of 21.

On March 1, 2017, [Appellant] tendered an open or straight
guilty plea for all charged offenses. After the submission of a
written colloquy and an on-the-record colloquy, the plea was
accepted as voluntary, knowing and intelligent. [Appellant]’s
sentencing was deferred to allow for the completion of a pre-
sentence investigation.

At the time of the plea, [Appellant] indicated that he had
reviewed SORNA’s “Notification of Registration and Verification
Requirements under Title 42; Section 9799.10,” and
acknowledged that he would be subject to lifetime registration as
a Tier III offender. Defense counsel made a verbal motion at that
time to exclude [Appellant] from registration. Counsel were asked
to submit memoranda of law on the applicability of SORNA for the
[c]ourt’s consideration prior to sentencing.

On July 12, 2017, [Appellant] appeared for sentencing on both
dockets. At Information No. 0777-2016, this [c]ourt imposed
concurrent sentences of four to eight years [of] incarceration for
all offenses. Restitution in the amount of $1,206.76 was imposed,
as well as fees and costs.

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At Information No. 0778-2016, [Appellant] received concurrent
sentences of four to eight years [of] incarceration for all charges.
These concurrent sentences were made consecutive to the
sentences at No. 0777-2016, for an aggregate sentence of 8 to 16
years [of] incarceration. [Appellant] was further ordered to pay
restitution in the amount of $125.00, plus fees and costs.

[Appellant] was deemed ineligible for a Recidivism Risk
Reduction Incentive (RRRI) sentence due to his current
convictions for IDSI and rape, and his ineligibility was not waived
by the Commonwealth. Finally, [Appellant] was advised at
sentencing of his lifetime registration obligations pursuant to
SORNA as a Tier III sexual offender.

On July 21, 2017, [Appellant] filed a post-sentence motion
challenging (1) the applicability of SORNA, and (2) the aggregate
minimum sentence as manifestly excessive, an abuse of
discretion, and cruel and unusual punishment. The
Commonwealth filed a response on August 17, 2017. By Order
dated September 8, 2017, [Appellant]’s post-sentence motion
was denied.

On September 18, 2017, [Appellant] filed a timely notice of
appeal to the Superior Court of Pennsylvania from his judgment
of sentence. See 1442 MDA 2017. Pursuant to this [c]ourt’s
directive, [Appellant] filed a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Trial Court Opinion, 11/17/17, at 1-4 (footnotes and record citations omitted).

Appellant presents the following issues for review:

A. Whether the lower court erred in ordering [Appellant] to
comply with the registration and notification requirements of
SORNA when the criminal acts occurred between 2002 and 2004
when [Appellant] was 16 years of age or younger?

B. Whether the imposition of consecutive sentences resulting
in an aggregate sentence of not less than eight nor more than
sixteen years was clearly unreasonable and manifestly excessive?

Appellant’s Brief at 7.

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First, Appellant argues that he should not be subject to SORNA’s

registration requirements, which became effective in December 2012 and

were not in effect at the time he committed his crimes between 2002 and

2004. Although Appellant acknowledges that SORNA was in effect when he

pled guilty to those crimes, he asserts that application of SORNA to his case

violates the ex post facto clause of the Pennsylvania Constitution under

Commonwealth v. Muniz, 164 A.2d 1189 (Pa. 2017). Because this issue

presents a question of law, our standard of review is de novo and our scope

of review is plenary. Commonwealth v. Lee, 935 A.2d 865, 876 (Pa. 2007).

Pennsylvania’s Sex Offender Registration and Notification Act (SORNA),

42 Pa.C.S.A. §§ 9799.10-9799.42, establishes a statewide registry of sexual

offenders. 42 Pa.C.S.A. § 9799.16(a). On December 20, 2012, SORNA

replaced the then existing sexual offender registration statutory provisions,

commonly known as Megan’s Law III, 42 Pa.C.S.A. §§ 9791-9799.9 (expired).

The General Assembly implemented SORNA in order to bring Pennsylvania’s

sexual offender reporting system in line with the federal mandates of the

federal Adam Walsh Child Protection and Safety Act of 2006, Public Law 109-

248, 42 U.S.C. §§ 16901–16991, which requires a tier-based registration and

notification scheme. Muniz, 164 A.3d at 1203-04.

For purposes of registration, SORNA classifies sexual offenders into the

following three tiers:

Those convicted of Tier I offenses are subject to registration for a
period of fifteen years and are required to verify their registration

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information and be photographed, in person at an approved
registration site, annually. 42 Pa.C.S.[A.] § 9799.15(a)(1),
(e)(1). Those convicted of Tier II offenses are subject to
registration for a period of twenty-five years and are required to
verify their registration information and be photographed, in
person at an approved registration site, semi-annually. 42
Pa.C.S.[A.] § 9799.15(a)(2), (e)(2).

Those convicted of Tier III offenses are subject to lifetime
registration and are required to verify their registration
information and be photographed, in person at an approved
registration site, quarterly. 42 Pa.C.S.[A.] § 9799.15(a)(3),
(e)(3).

Id. at 1206-1207 (footnotes omitted).

The offenses that constitute Tier I, II, and III offenses are set forth in

42 Pa.C.S.A. § 9799.14(b)-(d). Here there is no dispute that Appellant is a

Tier III sexual offender due to his various convictions of rape and IDSI. See

42 Pa.C.S.A. § 9799.14(d)(2), (4). As a Tier III offender under SORNA,

Appellant is subject to lifetime registration and quarterly reporting

requirements. See 42 Pa.C.S.A. § 9799.15(a)(3), (e)(3). Because he

committed these offenses prior to when SORNA became effective, Appellant

argues that under Muniz, the application of SORNA to his sentence violates

the ex post facto clause of the Pennsylvania Constitution.

In Muniz, the defendant was convicted in February 2007 of two counts

of indecent assault of a person less than 13 years of age with sentencing

scheduled for May 2007. Id. at 1193. At the time of his conviction, Muniz

“would have been ordered to register as a sex offender with the Pennsylvania

State Police for a period of ten years pursuant to then-effective Megan's Law

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III.” Id. at 1192 (citing 42 Pa.C.S.A. § 9795.1 (expired)). Muniz, however,

never appeared for sentencing and absconded until he was later apprehended

in September 2014. Id. When Muniz was finally sentenced in 2014, the trial

court ordered him to comply with the lifetime registration provisions under the

then-effective SORNA, pursuant to which he was a Tier III sexual offender.

Id. Muniz appealed.

On appeal to our Supreme Court, five of the six participating justices

held that even though the General Assembly identified SORNA’s enhanced

registration provisions as non-punitive, they nonetheless constituted

punishment. Id. at 1218. The Supreme Court further determined that the

retroactive application of SORNA’s registration requirements to Muniz violated

the ex post facto clause of the Pennsylvania Constitution. Id. at 1218-19.

Our Supreme Court explained:

Critical to relief under the ex post facto clause is not an individual’s
right to less punishment, but the lack of fair notice and
governmental restraint when the legislature increases punishment
beyond what was prescribed when the crime was consummated.
Based on these concerns, [in Calder v. Bull, 3 U.S. 386 (1798),]
Chief Justice Chase set out four categories of laws that violate
such prohibitions:

1st. Every law that makes an action done before the
passing of the law, and which was innocent when
done, criminal; and punishes such action. 2nd. Every
law that aggravates a crime, or makes it greater than
it was, when committed. 3rd. Every law that changes
the punishment, and inflicts a greater punishment,
than the law annexed to the crime, when committed.
4th. Every law that alters the legal rules of evidence,
and receives less, or different, testimony, than the law

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required at the time of the commission of the offense,
in order to convict the offender.

Furthermore, two critical elements must be met for a criminal or
penal law to be deemed ex post facto: it must be retrospective,
that is, it must apply to events occurring before its enactment,
and it must disadvantage the offender affected by it. As such,
[o]nly those laws which disadvantage a defendant and fall within
a Calder category are ex post facto laws and constitutionally
infirm. The ex post facto clauses of the United States and
Pennsylvania Constitutions are implicated here because a holding
rendering the effects of SORNA’s registration requirements
punitive would place the statute into the third Calder category:
application of the statute would inflict greater punishment on
appellant than the law in effect at the time he committed his
crimes.

Id. at 1195-1196 (quotation marks omitted, some citations omitted or

modified).

Because Muniz committed his crimes prior to the existence of SORNA,

the Supreme Court determined that application of that statute would inflict

greater punishment than the law (Megan’s Law III) in effect at the time he

committed his crimes. Consequently, our Supreme Court concluded that the

retroactive application of SORNA’s registration and reporting requirements to

Muniz violated the ex post facto clauses of the United States and Pennsylvania

Constitutions. Id. at 1223.

Like Muniz, this case implicates the ex post facto clause of the

Pennsylvania Constitution because application of SORNA’s registration

requirements would impose greater punishment on Appellant than the law in

effect at the time he committed his crimes. See id. at 1195-1196. Appellant

committed his rape and IDSI crimes in 2002 and 2004. At that time, Megan’s

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Law II, 42 Pa.C.S.A. §§ 9791–9799.7 (expired),2 was in effect. On December

20, 2011, the General Assembly enacted SORNA, which became effective on

December 20, 2012, prior to Appellant’s guilty plea and sentencing, but well

after he committed the offenses. Although SORNA increased the registration

period for some crimes, the registration requirement for individuals convicted

of rape and IDSI remained lifetime registration. Compare 42 Pa.C.S.A. §

9795.1(b)(2) (expired) with 42 Pa.C.S.A § 9799.14(d). While SORNA did not

enhance the registration period for rape and IDSI, it did augment the

registration requirements for all Tier III offenders, which included quarterly

in-person reporting and the posting of their personal information on the

Pennsylvania State Police website. Muniz, 164 A.3d at 1210-11. As our

Supreme Court pointed out in Muniz, these additional registration

requirements constitute a greater punishment than what Megan’s Law would

have imposed and consequently, their retroactive application violates the ex

post facto clause of the Pennsylvania Constitution. Id. at 1193-1196, 1216.

The Commonwealth contends that Muniz is inapplicable to this case

because the defendant in Muniz was convicted prior to when SORNA became

effective, and sentenced after, whereas Appellant was not convicted of his

crimes until after SORNA became effective. Commonwealth’s Brief at 10. We

____________________________________________

2 “Megan’s Law III did not completely repeal and replace Megan's Law II;
rather, it made significant changes to Megan’s Law II.” Commonwealth v.
Derhammer, 173 A.3d 723, 726 (Pa. 2017) (citing Muniz, 164 A.3d at
1197).

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reject this argument. While the Commonwealth is correct that the defendant

in Muniz was convicted prior to when SORNA became effective, its argument

disregards our Supreme Court’s analysis of the constitutional ex post facto

prohibitions. The Supreme Court made clear that “the ex post facto clauses

of the United States and Pennsylvania Constitutions are implicated” by SORNA

where “application of the statute would inflict greater punishment on appellant

than the law in effect at the time he committed his crimes.” Id. at 1196. This

is exactly what transpired here.

Appellant pled guilty after SORNA became effective, and the trial court

retroactively imposed the new registration requirements and other provisions

of SORNA on him for crimes he committed when Megan’s Law II was in effect.

Because Appellant committed his crimes at a time when registration

requirements for rape and IDSI were less burdensome and stringent, we

conclude that the retroactive application of SORNA’s registration and reporting

requirements to Appellant violated the ex post facto clause of the Pennsylvania

constitution. See Muniz, 164 A.3d at 1192-1196, 1223. Accordingly, we

vacate Appellant’s judgment of sentence to the extent it requires Appellant to

register as a sexual offender pursuant to SORNA.3 Because we have

determined that application of SORNA to Appellant’s case is unconstitutional

under the Pennsylvania ex post facto clause, we need not address his

____________________________________________

3 We note that this does not preclude Appellant from having to register as a
sexual offender under Megan’s Law II.

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argument regarding whether SORNA is inapplicable to him as a juvenile

offender.

Second, Appellant challenges the discretionary aspects of his sentence.

“The right to appellate review of the discretionary aspects of a sentence is not

absolute, and must be considered a petition for permission to appeal.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014),

appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a four-

part test to invoke this Court’s jurisdiction when challenging the discretionary

aspects of a sentence.” Id. We conduct this four-part test to determine

whether:

(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post[-]sentence motion; (2) the
appellant filed a timely notice of appeal; (3) the appellant set forth
a concise statement of reasons relied upon for the allowance of
his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant
raises a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a

substantial question when he sets forth a plausible argument that the

sentence violates a provision of the sentencing code or is contrary to the

fundamental norms of the sentencing process.” Commonwealth v. Dodge,

77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),

appeal denied, 91 A.3d 161 (Pa. 2014). “Whether a substantial question

has been raised is determined on a case-by-case basis[.]” Commonwealth

v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012).

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Appellant preserved his discretionary aspects of sentencing claim by

raising it in a post-sentence motion. See Post-Sentence Motion, 7/21/17.

Appellant also filed a timely notice of appeal and included in his appellate brief

a concise statement of the reasons relied upon for the allowance of his appeal

pursuant to Pennsylvania Rule of Appellate Procedure 2119(f). See

Appellant’s Brief at 17-21. Thus, we must determine whether Appellant’s

sentencing claim raises a substantial question for our review.

Appellant argues the that trial court’s decision to impose consecutive as

opposed to concurrent sentences on his two criminal informations resulted in

a sentence that was manifestly excessive. Appellant further asserts that the

trial court’s sentence violated the fundamental sentencing norms in that it

failed to take into consideration his age at the time of his offenses. “[A]

sentencing court generally has discretion to impose multiple sentences

concurrently or consecutively, and a challenge to the exercise of that

discretion does not ordinarily raise a substantial question.” Commonwealth

v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014). We have explained,

however, “that an excessive sentence claim – [i]n conjunction with an

assertion that the court failed to consider mitigating factors – raises a

substantial question.” Id. at 1253 (citing Commonwealth v. Perry, 883

A.2d 599, 602 (Pa. Super. 2005)). Because Appellant has raised a substantial

question, we turn our attention to the merits of his sentencing claim.

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Our standard of review for discretionary aspects of sentencing claims is

as follows:

Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.

Id. (quoting Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super.

2006)).

Section 9721(b) of the Sentencing Code sets forth general sentencing

standards for trial courts and provides, in pertinent part:

(b) General standards.—. . . the court shall follow the general
principle that the sentence imposed should call for confinement
that is consistent with the protection of the public, the gravity of
the offense as it relates to the impact on the life of the victim and
on the community, and the rehabilitative needs of the defendant.
. . . In every case in which the court imposes a sentence for a
felony or misdemeanor, modifies a sentence, resentences an
offender following revocation of probation, county intermediate
punishment or State intermediate punishment or resentences
following remand, the court shall make as a part of the record,
and disclose in open court at the time of sentencing, a statement
of the reason or reasons for the sentence imposed.

42 Pa.C.S.A. § 9721(b).

We conclude that the trial court did not abuse its discretion in sentencing

Appellant. At the outset we note that the record reflects that the trial court

had the benefit of reviewing a pre-sentence investigation report. N.T.,

7/12/17, at 17. “[W]here the sentencing judge had the benefit of a

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presentence investigation report, it will be presumed that he or she was aware

of the relevant information regarding the defendant’s character and weighed

those considerations along with mitigating statutory factors.

Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009).

Moreover, the transcript of Appellant’s sentencing hearing reveals the

following:

[The Court:] The reality is [Appellant] was at the time a juvenile,
but it does not excuse [Appellant]’s behavior. It may be a little
bit -- it may be somewhat of an explanation, but it certainly does
not excuse it or justify it.

The Court imposes sentence for the following reasons:
[Appellant] presently is 28 years of age, which shows sufficient
maturity to understand the significance of his acts.

Again, I have already commented on the fact that at the time
of the incident, [Appellant] was a juvenile.

According to the pre-sentence investigation report, [Appellant]
is intelligent enough to understand the significance of his acts and
there is nothing in the pre-sentence investigation report to
suggest that [he] did not understand what he was . . . doing at
the time that these events took place.

* * *

Again, many of the things set forth in the pre-sentence
investigation report deal with things that have occurred and been
accomplished by [Appellant] since these events, but they are of
[little] significance in me evaluating and determining what the
appropriate sentence should be.

* * *

As noted in the pre-sentence investigation report, there is no
prior juvenile record prior to these events taking place; however,
there are adult criminal offenses since those times.

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Now, they are not included for purposes of determining the
sentencing guidelines, but it is appropriate that I take into
consideration [Appellant]’s behavior as an adult because that does
impact whether or not I think [he] is capable of rehabilitation and
his overall conduct.

N.T., 7/12/17, at 14-16.

The sentencing transcript reflects the trial court’s consideration of the

sentencing standards enunciated in Section 9721(b), and mitigating factors

such as Appellant’s age at the time of the offenses. In sum, there is no support

for Appellant’s claim that his sentence was excessive and the trial court did

not take into consideration certain mitigating factors. Accordingly, Appellant’s

discretionary aspects of sentencing claim does not entitle him to relief.

Judgment of sentence affirmed in part and vacated in part. Case

remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 07/11/2018

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