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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RAYMOND BENDER, JR., : No. 980 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence, February 13, 2018,
in the Court of Common Pleas of Monroe County
Criminal Division at No. CP-45-CR-0001770-2017
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 30, 2019
Raymond Bender, Jr., appeals from the February 13, 2018 judgment
of sentence entered in the Court of Common Pleas of Monroe County
following entry of his nolo contendere plea to one count of unlawful
contact with a minor-sexual offense. The trial court sentenced appellant to a
term of incarceration of 22 to 84 months. We affirm.
The trial court set forth the following:
On August 17, 2017, Appellant was charged by
Criminal Information with one count each of
Aggravated Indecent Assault—Complainant less than
16,[Footnote 1] Aggravated Indecent Assault without
Consent,[Footnote 2] Indecent Assault without
Consent of Other,[Footnote 3] Unlawful Contact with
Minor—Sexual Offenses,[Footnote 4] Corruption of
Minors—Defendant Age 18 or Above,[Footnote 5]
and Indecent Assault—Person Less than 16 Years of
Age.[Footnote 6] The charges arise from a
February 5, 2017, and February 16, 2017, incident
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at a residence in Chestnuthill Townships [sic],
Monroe County, Pennsylvania, involving a minor
victim.
[Footnote 1] 18 Pa.C.S.A. § 3125(A)(8).
[Footnote 2] 18 Pa.C.S.A. § 3125(A)(1).
[Footnote 3] 18 Pa.C.S.A. § 3126(A)(1).
[Footnote 4] 18 Pa.C.S.A. § 6318(A)(1).
[Footnote 5] 18 Pa.C.S.A. § 6301(A)(1)(ii).
[Footnote 6] 18 Pa.C.S.A. § 3126(A)(8).
On September 5, 2017, this case was joined for trial
via Notice of Joinder with case number 1868 CR
2017.
On November 6, 2017, Appellant pleaded
nolo contendere to Amended Count I of the
Criminal Information: Unlawful Contact with a Minor–
Sexual Offenses.[Footnote 7] On the same day,
[w]e ordered the Sexual Offenders Assessment
Board to conduct an evaluation of the Appellant to
determine if the Appellant is a sexually violent
predator (“SVP”) prior to the imposition of sentence.
Appellant filed a Motion to Preclude Evaluation on
December 1, 2017, requesting that this Court
preclude any evaluation being performed to make a
determination into whether Appellant is an SVP. A
hearing was held on Appellant’s Motion on January 9,
2018, and counsel were ordered to file briefs in
support of their argument specifically regarding the
use of an evaluation for purposes of a presentence
investigation report and sentencing. After review of
both parties’ briefs, Appellant’s Motion was denied
from the bench at Appellant’s sentencing hearing.
[Footnote 7] The Commonwealth filed
an Amended Criminal Information on
November 13, 2017, charging Appellant
with Unlawful Contact with a Minor–
Sexual Offenses (18 Pa.C.S.A.
§ 6318(A)(1)).
On February 13, 2018, [w]e sentenced Appellant to
undergo a period of incarceration in a state
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correctional institution for a period of not less than
22 months nor more than 84 months, said sentence
to run consecutive with the sentence imposed in case
number 1868 CR 2017 for an aggregate sentence of
not less than 52 months nor more than
204 months.[Footnote 8] Additionally, Appellant was
found to be classified as a Tier 2 sexual offender
subject to a 25-year registration period pursuant to
SORNA1 as set forth at 42 Pa.C.S.A. § 9799.23.
[Footnote 8] In case number 1770 CR
2017, [w]e sentenced Appellant to a
period of incarceration in a state
correctional institution of not less than
15 months nor more than 60 months for
Amended Count I of the Criminal
Information—Corruption of Minors, and
not less than 15 months nor more than
60 months for Amended Count II of the
Criminal Information—Corruption of
Minors, said sentences to run
consecutively for an aggregate sentence
of not less than 30 months nor more
than 120 months.
On February 20, 2018, Appellant filed a Motion for
Reconsideration of Sentence, which was denied by
this Court’s Order on the same day. On March 20,
2018, Appellant filed a Notice of Appeal to the
Superior Court appealing our September 13, 2018,
Sentencing Order, and our February 20, 2018, Order
Denying Appellant’s Motion for Reconsideration of
Sentence. We ordered Appellant to file a Statement
Pursuant to Pa.R.A.P. 1925(b) within 21 days and
Appellant filed said statement on April 10, 2018.
Trial court opinion, 5/22/18 at 1-3 (citation to notes of testimony omitted).
Appellant raises the following issues for our review:2
1 The Sexual Offender Registration and Notification Act (“SORNA”).
2 We have re-ordered appellant’s issues for ease of disposition.
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1. Did the [trial] court abuse its discretion at
sentencing by allowing the Sexually Violent
Predator Assessment to be considered at the
time of sentencing for purposes other than
determination if [appellant] was a Sexually
Violent Predator, where all of the information is
already available to the court and [appellant]
did not have a chance to confront the person
who did the evaluation about their opinions
and professional determinations, when a
[d]efendant cannot be declared a Sexually
Violent Predator?
[2.] Did the [trial] [c]ourt abuse its discretion at
sentencing when it is a violation of
[appellant’s] due process constitutional rights
under the United States and Pennsylvania
Constitutions where SORNA’s requirements are
punitive and not just civil requirements?
[3.] Is it a violation of [appellant’s] due process
constitutional rights under the United States
and Pennsylvania Constitutions where
mandatory reporting compliance with SORNA’s
requirements are an affirmative restraint upon
[appellant] and such restraint is punitive?
[4.] Did the [trial] [c]ourt abuse its discretion at
sentencing when it required [appellant] to
register under SORNA?
[5.] Is it a violation of [appellant’s] due process
constitutional rights under the United States
and Pennsylvania Constitutions where
compliance with SORNA’s requirements are
invested in the state police?
Appellant’s brief at 7.
In his first four issues, appellant relies on our supreme court’s decision
in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (OAJC),
cert. denied sub nom. Pennsylvania v. Muniz, 138 S.Ct. 925, 200 L.Ed.
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2d 213, 2018 WL 491630 (U.S. 2018), and this court’s decision in
Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super. 2017), to argue that
his sentence is unconstitutional. The sum and substance of these complaints
is that the trial court abused its discretion when it considered the
assessment that the sexual offenders assessment board (“SOAB”) performed
on appellant prior to imposing sentence because a SOAB assessment is
unconstitutional pursuant to this court’s decision Butler and that because
our supreme court in Muniz held that SORNA’s registration requirements are
punitive, they cannot be applied to him. Appellant is mistaken.
In Muniz, our supreme court held that SORNA’S registration
requirements constitute criminal punishment, as opposed to a mere civil
penalty, and therefore, their retroactive application violates the ex post
facto clause of the U.S. Constitution. Muniz, 164 A.3d at 1192.
Thereafter, in Butler, this court concluded that because Muniz held
SORNA’s registration requirements are punitive and an SVP designation
increases the registration period, trial courts cannot apply SORNA’s
increased registration requirement to SVPs because SORNA does not require
a fact-finder to determine, beyond a reasonable doubt, that the defendant is
an SVP. Butler, 173 A.3d at 1217-1218, citing Alleyne v. United States,
570 U.S. 99 (2013). We further found 42 Pa.C.S.A. § 9799.24(e)(3)
unconstitutional and directed trial courts to apply only the applicable
tier-based registration period, as those periods apply based on the
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conviction itself, and not due to any additional fact not found, under
SORNA’s procedures, by the fact-finder. Butler, 173 A.3d at 1218.
Here, appellant’s reliance on Muniz and Butler is misplaced. First,
appellant was not deemed an SVP in violation of Butler. Rather, the trial
court complied with this court’s directive in Butler when it required
appellant to register under the applicable tier-based registration period
based upon appellant’s conviction itself and not based upon any additional
fact not found by a fact-finder. Second, because SORNA was not
retroactively applied to appellant, Muniz provides no relief. Third, neither
Muniz nor Butler held that a SOAB assessment is unconstitutional.
Appellant’s constitutional challenges, therefore, lack merit.
Appellant appears to challenge the discretionary aspect of his sentence
by claiming that the trial court’s consideration of the SOAB assessment
somehow constituted an abuse of discretion even though “[t]he author of
the SVP report had the same information available to them as did the
probation officer that did the pre-Sentence Investigation.” (Appellant’s brief
at 12.)
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
(Pa.Super. 2000)]. An appellant challenging the
discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to
determine: (1) whether appellant has
filed a timely notice of appeal, see
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Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at
sentencing or in a motion to reconsider
and modify sentence, see Pa.R.Crim.P.
[720]; (3) whether appellant’s brief has
a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial
question that the sentence appealed
from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A.
§ 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citation
omitted; brackets in original).
Here, appellant filed a timely notice of appeal, but did not properly
preserve, in a post-sentence motion seeking reconsideration of sentence, his
seeming challenge that the court abused its discretion by considering the
SOAB assessment. Additionally, appellant failed to include in his brief the
requisite Rule 2119(f) statement. Consequently, to the extent that appellant
challenges a discretionary aspect of his sentence, appellant has failed to
invoke this court’s jurisdiction.3
3 We note that the Commonwealth did not object to appellant’s failure to
include a Rule 2119(f) statement. Therefore, had appellant properly invoked
this court’s jurisdiction by preserving his discretionary challenge in a
post-sentence motion for reconsideration of sentence, appellant’s failure to
include a Rule 2119(f) statement in his brief would not automatically result
in waiver of his discretionary sentencing challenge. See Commonwealth v.
Dodge, 77 A.3d 1263, 1271 (Pa.Super. 2013) (reiterating that this court
may address a discretionary sentencing challenge where the Commonwealth
does not object to defendant’s failure to include a Rule 2119(f) statement in
the appellate brief). Had appellant properly invoked our jurisdiction,
however, appellant would have failed to raise a substantial question for our
review because he advances no argument that the trial court’s actions were
either: (1) inconsistent with a specific provision of the Sentencing Code; or
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In his final issue, appellant maintains that the courts, and not the state
police, should “be the ones that monitor [SORNA] compliance” because
“[a]ppellant does not see the reason the State Police need to have
standing.” (Appellant’s brief at 20.) Appellant then relies upon
Commonwealth v. Harmon,4 which he indicates was decided by a
Philadelphia trial court and which he claims “is similar” to his case. (Id. at
21.)
Notwithstanding the fact that a trial court decision is not binding upon
this court (see Dental Care Assocs., Inc. v. Keller Eng’rs, Inc., 954 A.2d
597, 603 (Pa.Super. 2008)), appellant fails to demonstrate how his case is
“similar” to Harmon. Consequently, appellant waives this claim on appeal.
See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)
(reiterating that “where an appellate brief fails to provide any discussion of a
claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived”); citing to
Commonwealth v. Walter, 966 A.2d 560, 566 (Pa. 2009);
Commonwealth v. Steele, 961 A.2d 786, 799 n.12 (Pa. 2008);
Commonwealth v. Puksar, 951 A.2d 267, 293-294 (Pa. 2008). See also
(2) contrary to the fundamental norms which underlie the sentencing
process. See Commonwealth v. Swope, 123 A.3d 333, 338 (Pa.Super.
2015).
4 We note that we were unable to locate this decision based upon the
citation that appellant provided.
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Pa.R.A.P. 2119(a) (requiring that each point treated in an argument must be
“followed by such discussion and citation of authorities as are deemed
pertinent”). Finally, we note that our supreme court has long held that it is
not the court’s obligation to formulate an appellant’s arguments. See
Commonwealth v. Wright, 961 A.2d 119, 135 (Pa. 2008);
Commonwealth v. Thomas, 717 A.2d 468, 482-483 (Pa. 1998).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/19
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