Commonwealth v. Bricker

J-S63037-18

2018 PA Super 286

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID ALLEN BRICKER :
:
Appellant : No. 623 WDA 2018

Appeal from the Judgment of Sentence April 12, 2018
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000835-2014

BEFORE: OTT, J., MURRAY, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.: FILED OCTOBER 19, 2018

Appellant David Allen Bricker appeals from the Judgment of sentence

entered in the Court of Common Pleas of Fayette County on April 12, 2018,

following remand from the Pennsylvania Supreme Court for resentencing in

light of Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017). We

affirm.

A panel of this Court previously reiterated the trial court’s summary of

the relevant facts and procedural history of the instant matter as follows:

In October of 2013, …the minor victim, met Appellant [ ] through
her neighbor, [L.R.], who was dating Appellant at the time. [L.R.]
knew Appellant as David Kennedy and introduced him to the
victim as such. After they met, Appellant and the victim started
communicating with each other. Their communications took many
forms, whether it was in person or electronically. The victim
testified she obtained Appellant's online contact information from
Appellant so they could communicate with each other over the
internet. She testified they would communicate online "every once
in a while" and the content of the conversations included things
only the two of them knew about. Specifically, [the victim]

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* Former Justice specially assigned to the Superior Court.
J-S63037-18

testified [Appellant] would tell her he wanted to be with her and
he wanted to marry her.

One afternoon in November of 2013, [L.R.] and Appellant asked
the victim and her brother...to help clean [L.R.'s] attic. Appellant,
the victim, and her brother were cleaning the attic; [L.R.] only
came up to the attic periodically. While they were cleaning the
attic, Appellant on several occasions asked the victim's brother to
take chairs downstairs, leaving the victim and Appellant alone in
the attic.

While Appellant was alone in the attic with the victim, he told her
that he loved her and not to tell anyone. Appellant also kissed the
victim on the lips and grabbed and squeezed her buttocks. This
was corroborated by the victim's brother, who testified that before
he went downstairs, he saw Appellant kiss his sister on the lips
and [grab] her buttocks.

About a month later, Patrick Ruff, a Connellsville City Police
Officer, was notified that the victim's father found messages
between Appellant and the victim. The case was initially reported
to Officer Ruff regarding a person named David Kennedy;
however, throughout his investigation, Officer Ruff ascertained
David Kennedy's real name to be David Allen Bricker. Officer Ruff
also determined [the victim's] date of birth...and Appellant's date
of birth.... Therefore, the child victim was fifteen (15) years of age
and [Appellant] was fifty-one (51) years of age at the time of the
offense.

Commonwealth v. Bricker, No. 849 WDA 2015, unpublished memorandum

at 1-2 (Pa.Super. filed March 23, 2018) (citation omitted).

Following a jury trial, Appellant was convicted of unlawful contact with

a minor- sexual offenses, indecent assault- victim less than sixteen (16) years

of age, and harassment.1 Appellant was sentenced to three and one-half (3

½) years to seven (7) years in prison. The court also deemed Appellant to be

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1 18 Pa.C.S.A. §§ 6318(a)(1), 3126(a)(8), and 2709(a)(1), respectively.

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a sexually violent predator which subjected him to a lifetime registration under

42 Pa.C.S.A. §§ 9799.10-9799.41, the Sex Offender Registration and

Notification Act (“SORNA”).2 Appellant filed a timely notice of appeal on May

27, 2015.

On December 29, 2015, a panel of this Court affirmed Appellant’s

judgment of sentence. Commonwealth v. Bricker, No. 849 WDA 2015,

unpublished memorandum at 15 (Pa.Super. filed December 29, 2015).

Appellant filed a petition for allowance of appeal with the Pennsylvania

Supreme Court on January 6, 2016, and in an Order entered on January 3,

2018, the Supreme Court granted Appellant allowance of appeal limited to the

following issue:

Did the sentencing court impose a harsh, severe, and
manifestly unreasonable and excessive sentence in light of the
circumstances surrounding the alleged incident?

Supreme Court Order, entered January 3, 2018, at 1 (unnumbered). The

Supreme Court further directed that Appellant’s “judgment of sentence is

VACATED, and the case is REMANDED to the Superior Court for

reconsideration in light of Commonwealth v. Muniz, 164 A.3d 1189 (Pa.

2017).” Id. (emphasis in original).

____________________________________________

2 The effective date of SORNA was December 20, 2012, and Appellant
committed the offenses in 2013. SORNA replaced Megan’s Law as the statute
governing the registration and supervision of sex offenders. SORNA was
recently amended on February 21, 2018, by H.B. 631, 202 Gen. Assem., Reg.
Sess. (Pa. 2018), Act 10 of 2018.

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On remand, this Court stated the Muniz decision left no doubt that

SORNA registration requirements constitute criminal punishment and further

noted that in Commonwealth v. Butler, 173 A.3d 1212, 1215 (Pa.Super.

2017) we specifically had held that the process under which one is designated

as an SVP is constitutionally flawed. Commonwealth v. Bricker, No. 849

WDA 2015, unpublished memorandum at 10 (Pa.Super. filed March 23, 2018).

We also found that Appellant’s SVP designation was a part of his sentence the

Pennsylvania Supreme Court had vacated. We further stressed that because

Appellant committed the offenses of which he was convicted in 2013, following

the effective date of SORNA, his case presented “no clear ex post facto

violation under Muniz by applying SORNA to his convictions.” Id. at 12

(footnote omitted). Thus, we remanded the matter “to the trial court to

resentence Appellant including his SORNA registration obligations.” Id.

Observing that Appellant had identified but failed to develop certain challenges

to SORNA, we directed that “[a]t resentencing, Appellant shall have the

appropriate full and fair opportunity to raise, develop, argue and preserve his

constitutional challenges to his new reporting requirements.” Id.

On April 12, 2018, the trial court held a Video Resentence Proceeding.

At that time, Appellant argued it would violate his constitutional rights were

he required to register past the maximum sentence allowed by law, which is

seven years, and requested that the registration period be no longer than

seven years. N.T. Video Resentence Proceeding, 4/12/18, at 3. The trial court

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acknowledged Appellant properly had preserved as per this Court’s directive

the issue of whether or not SORNA’s reporting requirements constitute an

unconstitutional extension of the statutory maximum for the underlying

offense and whether SORNA reporting requirements are cruel and unusual

punishment. However, the court stated that its reading of Muniz and this

Court’s March 23, 2018, Memorandum Opinion led to its holding that the

proper registration period was twenty-five years. N.T. Video Resentence

Proceedings, 4/12/18, at 3-4.

Following the hearing, the trial court resentenced Appellant, in relevant

part, to three and one-half (3½) years to seven (7) years in prison and

directed that “as a person convicted of a Tier II sexual offense [Appellant]

shall register for a period of 25 years . . . .” Sentencing Order, 4/12/18, at

¶¶ 4, 12 (emphasis in original); see also, N.T. Video Resentence Proceedings,

4/12/18, at 6-7.

Appellant filed a timely post-sentence motion on April 20, 2018.

Therein, Appellant acknowledged Subchapter H of the recent amendments to

SORNA apply where one’s offense occurred on or after December 20, 2012,

as is the case herein, but argued “the registration requirement[s] of

Subchapter H are unconstitutional due to the fact that such requirements are

punitive in nature and constitute punishment.” See Post Sentence Motion,

filed 4/20/18, at ¶¶ 5-7. Appellant reasoned that in light of Muniz,

Subchapter H, which was enacted on February 21, 2018, cannot be applied to

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conduct preceding its enactment, like Appellant’s offenses; therefore, he has

no duty to register as a sex offender. Id. at ¶¶ 15-17. Appellant also posited

the requirement that he register for a period of twenty-five (25) years also is

illegal and unconstitutional in light of the fact that it exceeds the maximum

sentence allowed by law for his offenses. Id. at ¶¶ 18-19. The trial court

denied Appellant’s post-sentence motion in its Order entered on April 24,

2018.

Appellant filed a timely notice of appeal on April 26, 2018. In its Order

filed on April 27, 2018, the trial court directed Appellant to file a concise

statement of the errors complained of on appeal. Appellant filed the same on

May 8, 2018, wherein he raised the following issue:

Did the sentencing court impose an illegal and unconstitutional
sentence by ordering [Appellant] to register for a period of twenty-
five (25) years?

See Concise Issue, filed May 8, 2018 (unnecessary capitalization omitted).

The trial court filed its Statement in Lieu of Opinion on May 10, 2018,

wherein it indicated it would be relying upon the reasoning set forth in its

sentencing Order and the record from the sentencing proceeding dated April

12, 2018. The court stressed that:

Our sentence was imposed in accordance with the Superior
Court’s Opinion and Order at Number 849 WDA 2015 filed on
March 23rd, 2018[,] which provided the following at Page 13: At
resentencing, Appellant should be subject to resentencing
under the law, including that version of the SORNA
registration requirements in effect at the time he
committed the offenses which led to his convictions.

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Statement in Lieu of Opinion, filed May 10, 2018 (emphasis in original).

In his brief, Appellant presents the same issue he raised in his concise

statement. In support of his claim, Appellant asserts that in rendering its

decision, the Muniz Court “stressed [its] concern with the quantity and

nature of information shared to the public under SORNA” as well as “the

burdens placed on registrants during the required registration period

including, but not limited to, the frequency of in-person appearances, the

detrimental effect of public disclosure of sensitive information concerning

registrants, the deterrent and retributive effects of registration, and its

punitive nature.” Brief for Appellant at 12 (citations to Muniz omitted).

Appellant also notes the Pennsylvania Supreme Court’s concerns with the

resultant “secondary disabilities” of registration requirements “which include

difficulties in finding and keeping housing, finding employment, traveling, and

schooling, as well as ‘the likelihood the offender may be subject to violence

and adverse social and psychological impacts.’” Id. at 12 (citations to Muniz

omitted).

Appellant argues that Subchapter H does not alter the aforementioned

requirements and adds only two provisions to SORNA; namely, the possibility

of relief from registration requirements after twenty-five (25) years and the

ability of Tier II and III registrants to appear in person only once annually but

still satisfy remaining registration requirements by telephone if they have

complied with these requirements for three years and have not been convicted

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of any offense punishable by more than a year in prison. Appellant concludes

by stating:

[a]s a result Subchapter H cannot be imposed on [Appellant], as
the above-captioned offenses were based on conduct occurring
before Subchapter H’s enactment on February 21, 2018.
[Appellant] should have no duty to register as a sex offender
beyond the statutory maximum for this offense, which is a period
of seven (7) years. Any longer registration requirement would be
an illegal and unconstitutional sentence.

Id. at 13.

Appellant’s issue presents a pure question of law; therefore, this Court’s

standard of review is de novo and our scope of review is plenary.

Commonwealth v. Muniz, 640 Pa. 699, 709, 164 A.3d 1189, 1195 (2017).

In Muniz, our Supreme Court held that SORNA's enhanced registration

provisions constitute criminal punishment and, thus, retroactive application of

SORNA's registration requirements to convictions which occurred in the pre-

SORNA timeframe violates the Ex Post Facto Clause of the Pennsylvania

Constitution. Muniz, 640 Pa. at 749, 757, 164 A.3d at 1218, 1223.3 In

response to our Supreme Court’s decision in Muniz and this Court’s later

decision in Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super. 2017),

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3 Recently, in Commonwealth v. Fernandez, 2018 WL 4237535 (Pa.Super.
filed (Sept. 5, 2018) (en banc) this Court held that under Muniz, a trial court
may not increase the registration requirements of defendants who had been
found to have violated the terms of their respective probationary sentences
under SORNA and ordered that the original periods of sexual offender
registration and conditions imposed in each case be reinstated.

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appeal granted, 2018 WL 3633945 (Pa. July 31, 2018) (holding certain

sexually violent predator provisions of SORNA were constitutionally infirm),

the Pennsylvania General Assembly passed Acts 10 and 29 of 2018. The

express purpose of these legislative enactments was, inter alia, to “[p]rotect

the safety and general welfare of the people of this Commonwealth by

providing for registration, community notification and access to information

regarding sexually violent predators and offenders who are about to be

released from custody and will live in or near their neighborhood[,]” and to

cure SORNA’s constitutional defects by “address[ing] [Muniz and Butler].”

See 42 Pa.C.S.A. § 9799.51(b)(1),(4).

Specifically, our General Assembly modified Subchapter H’s registration

requirements for those offenders convicted of committing offenses that

occurred on or after SORNA’s effective date of December 20, 2012. The

General Assembly also added Subchapter I to Title 42, Part VII, Chapter 97.

Subchapter I sets forth the registration requirements that apply to all

offenders convicted of committing offenses on or after Megan’s Law I’s

effective date (April 22, 1996), but prior to SORNA’s effective date.

Appellant herein admits Subchapter H applies to him “as this offense

allegedly occurred after December 20, 2012, See 42 Pa.C.S. § 9799.11(c).”

Brief of Appellant at 11. In 2015, the trial court deemed Appellant to be an

SVP which subjected him to a lifetime registration requirement under SORNA.

See 42 Pa.C.S.A. § 9799.15. Hence, Appellant’s sentence is not illegal in light

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of Muniz, for therein our Supreme Court held that the retroactive application

of SORNA’s Subchapter H registration requirements to defendants whose

crimes occurred prior to SORNA’s effective date violated the ex post facto

clause of the Pennsylvania Constitution. See Muniz, 640 Pa. at 706, 164 A.3d

at 1193.

With regard to Appellant’s assertion that Muniz held SORNA’s

registration requirements constituted punishment, and, therefore, Subsection

H cannot be imposed upon him as exceeds the lawful statutory maximum for

his offense which is seven (7) years, we observe that this Court recently held

that SORNA’s registration requirements are not governed by the statutory

maximum sentences set forth in Chapter 11 of the Crimes Code. See

Commonwealth v. Strafford, 2018 WL 3717081 at *3 (Pa.Super. filed Aug.

6, 2018). Observing this issue appeared to be one of first impression post-

Muniz, we reasoned as follows:

Appellant correctly observes that the Muniz Court found
that the registration requirement mandated by SORNA is punitive.
See Muniz, supra at 1218[.] We, thus, begin our analysis of
Appellant's challenge with a review of various statutes and legal
principles relating to punishments.
Our Supreme Court has explained the well-settled principle
that the General Assembly “has the exclusive power to pronounce
which acts are crimes, to define crimes, and to fix the punishment
for all crimes. The legislature also has the sole power to classify
crimes[.]” Commonwealth v. Eisenberg, 626 Pa. 512, 98 A.3d
1268, 1283 (2014) (citation and quotation omitted).
Our General Assembly has authorized courts to impose
specific punishments when fashioning a sentence, and specified
maximum terms and amounts of those punishments. These
categories of punishment include (1) partial or total confinement,
(2) probation, (3) state or county intermediate punishment, (4) a

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determination of guilt without further penalty, and (5) a fine. 42
Pa.C.S. § 9721.
With respect to the punishment of incarceration, 18 Pa.C.S.
§ 1103 governs the maximum authorized sentence of
imprisonment for felony convictions. By a separate statute, these
maximum allowable terms also apply to probationary sentences,
a different category of punishment authorized by the General
Assembly. In 42 Pa.C.S. § 9754(a), the legislature directed that
“[i]n imposing an order of probation the court shall specify at the
time of sentencing the length of any term during which the
defendant is to be supervised, which term may not exceed the
maximum term for which the defendant could be confined,
and the authority that shall conduct the supervision.” Id.
(emphasis added). Thus, the legislature explicitly connected the
authorized punishments of incarceration and probation by statute.
However, most sentencing alternatives are not tied to the
maximum authorized term of incarceration. For example, the
legislature has authorized courts to include in sentences the
requirement that a defendant pay a fine or restitution. These
categories of punishment are not limited by the maximum period
of incarceration; rather, the legislature set different maximum
authorized amounts of punishment a court may impose as part of
its sentence. See, e.g., 18 Pa.C.S. § 1101 (defining maximum
fines); 18 Pa.C.S. § 1106 (providing statutory scheme for
restitution for injuries to person or property).
In SORNA the legislature authorized courts to include
periods of registration as part of a sentence. Similar to the
treatment of the payment of fines or restitution, the legislature
did not tie the period of registration to the length of incarceration.
See 42 Pa.C.S. § 9799.14 (“Sexual offenses and tier system”); 42
Pa.C.S. § 9799.15 (“Period of registration”). SORNA's registration
provisions are not constrained by Section 1103. Rather, SORNA's
registration requirements are an authorized punitive measure
separate and apart from Appellant's term of incarceration. The
legislature did not limit the authority of a court to impose
registration requirements only within the maximum allowable
term of incarceration; in fact, the legislature mandated the
opposite and required courts to impose registration requirements
in excess of the maximum allowable term of incarceration.

Id. at *2-3 (emphasis in original).

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In light of the foregoing, we conclude that Appellant’s twenty-five year

registration requirement authorized by Subchapter H, a lesser term than that

imposed initially, does not constitute an illegal sentence. Accordingly,

Appellant is not entitled to relief.

Judgment of sentence affirmed.

Judge Ott joins the Opinion.

Judge Murray concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/19/2018

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