J-S04038-19
2019 PA Super 69
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JALANI DUPREE MARTIN :
:
Appellant : No. 1150 MDA 2018
Appeal from the Judgment of Sentence Entered May 29, 2018
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0004116-2017
BEFORE: SHOGAN, J., OTT, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED MARCH 07, 2019
Appellant Jalani Dupree Martin appeals from the judgment of sentence
entered in the Court of Common Pleas of Cumberland County on May 29,
2018, after he pled guilty to one count of indecent assault without consent,
graded as a second-degree misdemeanor.1 Appellant claims that his fifteen-
year registration requirement under the Sex Offender Registration and
Notification Act (SORNA)2 is illegal. Appellant argues the trial court could not
order registration in excess of the maximum possible incarceration period of
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1 18 Pa.C.S.A. § 3126(a)(1). Appellant also had been charged with
aggravated indecent assault without consent, pursuant to 18 Pa.C.S.A. §
3125(a)(1); aggravated indecent assault where complainant is unconscious or
unaware that penetration is occurring, pursuant to 18 Pa.C.S.A.§ 3125(a)(4);
and indecent assault where the person is unconscious, pursuant to 18
Pa.C.S.A.§ 3126(a)(4). The Affidavit of Probable Cause indicates the offenses
occurred on June 13, 2017.
2 42 Pa.C.S.A. § 9799.10 et seq.
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* Former Justice specially assigned to the Superior Court.
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two years for a misdemeanor of the second degree as codified at 18 Pa.C.S.A.
§ 1104(2). As this Court recently has rejected that legal theory, we affirm.3
Because our disposition concerns questions of law, a lengthy recitation
of the factual history is not necessary to our disposition. Following his guilty
plea, Appellant was sentenced to thirty (30) days to six (6) months in prison
and received 161 days credit for time served. Appellant also received a
consecutive term of eighteen (18) months of supervised probation and was
ordered to comply with SORNA’s reporting and registration requirements.
On June 1, 2018, Appellant filed a timely Motion to Modify Sentence
wherein he argued his sex offender designation and the resulting reporting
and registration requirements pursuant to SORNA are unconstitutional
punishments under the Pennsylvania Supreme Court’s decision in
Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017). The
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3 Relying on two other decisions of the Court of Common Pleas of Cumberland
County, CP-21-CR-3113-2016 and CP-21-CR339-2017, trial court found no
merit to Appellant’s claims. The court stressed that the holding in
Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017) is irrelevant
herein as Appellant’s offense was committed after the most recent enactment
of SORNA and reasoned that the reporting requirements were more akin to
probation than to incarceration; thus, double jeopardy concerns were not
implicated. Trial Court Opinion, 9/6/18, at 3-4. “[A]n appellate court is not
bound by the rationale of the trial court and may affirm on any basis if the
record supports it.” Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa.Super.
2018).
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Commonwealth filed its Answer on July 2, 2018, and in its Order entered on
July 5, 2018, the trial court denied the Motion.
On July 13, 2018, Appellant filed a timely notice of appeal. On July 16,
2018, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal, and Appellant complied on July 26, 2018, wherein
he raised seven (7) issues. In his appellate brief, Appellant presents the
following Statement of the Questions Involved:
I. Is [Appellant’s] sentence of fifteen (15) years of punishment
pursuant to SORNA illegal since SORNA is not a sentencing
alternative authorized by Section 9721 of the Judicial Code[4] and
the trial court therefore lacked authority to impose such a
sentence?
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4 Pertaining to sentencing, this statute reads, in relevant part, as follows:
§ 9721. Sentencing generally
(a) General rule.--In determining the sentence to be imposed
the court shall, except as provided in subsection (a.1),
consider and select one or more of the following
alternatives, and may impose them consecutively or
concurrently:
(1) An order of probation.
(2) A determination of guilt without further penalty.
(3) Partial confinement.
(4) Total confinement.
(5) A fine.
(6) County intermediate punishment.
(7) State intermediate punishment.
42 Pa.C.S.A. § 9721(a).
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II. Is [Appellant’s] sentence of fifteen (15) years of punishment
pursuant to SORNA illegal since the statutory maximum for a
misdemeanor of the second degree as codified in Section 1104 of
the Criminal Code[5] is two (2) years?
III. Is [Appellant’s] sentence of fifteen (15) years of punishment
pursuant to SORNA a violation of both the Sixth and Fourteenth
Amendments to the United States Constitution as the penalty
imposed was increased beyond the prescribed statutory maximum
based upon the General Assembly’s factual determination that
[Appellant] “pose[s] a high risk of committing additional sexual
offenses,” 42 Pa.C.S. § 9799.11(a)(4), a fact that was not
submitted to the jury nor proven beyond a reasonable doubt as
required by Apprendi v. New Jersey, 530 U.S. 466 (2000)?[6]
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5 Found at 18 Pa.C.S.A. § 1104, this statute reads as follows:
§ 1104. Sentence of imprisonment for misdemeanors
A person who has been convicted of a misdemeanor may be
sentenced to imprisonment for a definite term which shall be fixed
by the court and shall be not more than:
(1) Five years in the case of a misdemeanor of the first degree.
(2) Two years in the case of a misdemeanor of the second
degree.
(3) One year in the case of a misdemeanor of the third degree.
6 In Commonwealth v. Butler, 173 A.3d 1212, 1216–17 (Pa.Super. 2017),
reargument denied (Jan. 3, 2018), appeal granted, 190 A.3d 581 (Pa. 2018),
this Court recently reiterated:
In Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000) ], the Supreme Court of the United States
held that other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt. Stated another way, it is unconstitutional for a
legislature to remove from the jury the assessment of facts that
increase the prescribed range of penalties to which a criminal
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Brief for Appellant at 6. As these issues are interrelated, we will consider them
together and in doing so are mindful that they present pure questions of law;
therefore, this Court's standard of review is de novo and our scope of review
is plenary. Muniz, 640 Pa. at 709, 164 A.3d at 1195.
Appellant reasons that no mention of SORNA as a sentencing option is
made in 42 Pa.C.S.A. § 9721, and the mandatory nature of the statute coupled
with its inclusion of an exception as subsection a.1 which does not reference
SORNA “indicates that the alternatives listed, in conjunction with the
exception, are exhaustive.” Brief for Appellant at 10-11. Appellant posits that
Appellant was sentenced to a term of fifteen (15) years of registration and
reporting pursuant to SORNA making his maximum sentence exceed the
maximum sentence of two (2) years for a misdemeanor of the second degree
set for the in 18 Pa.C.S.A. § 1104(2). Id. at 12, 16.
Appellant contends this Court’s conclusion in Commonwealth v.
Strafford, 194 A.3d 168 (Pa.Super. 2018) that SORNA’s registration
provisions are not constrained by Section 1103 but rather constitute an
authorized punitive measure separate and apart from an appellant’s term of
incarceration was in error. Id. at 12-14. Appellant concludes that his
sentence violates both the Sixth and Fourteenth Amendments to the United
States Constitution pursuant to Apprendi because that sentence was imposed
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defendant is exposed. It is equally clear that such facts must be
established by proof beyond a reasonable doubt.
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as a result of the General Assembly’s factual determination that Appellant
poses a high risk of committing additional sexual offenses.” Id. at 16-17.
In setting forth his arguments, Appellant fails to cite this Court’s recent
decision in Commonwealth v. Bricker, 198 A.3d 371 (Pa.Super. 2018)
wherein we reiterated our prior holding in Strafford that a sentencing
requirement for a defendant to register as a sexual offender for a period of
time exceeding the lawful statutory maximum for his offense is not illegal. As
this analysis is dispositive herein, we quote it in detail below:
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 [it]
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, 194 A.3d 168,
172-73, 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
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those punishments. These categories of punishment
include (1) partial or total confinement, (2) probation,
(3) state or county intermediate punishment, (4) a
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
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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).
Commonwealth v. Bricker, 198 A.3d 371, 376-77 (Pa.Super. 2018). In
Bricker, this Court ultimately concluded the appellant’s twenty-five year
registration requirement authorized by Subchapter H of the recent
amendments to SORNA, which was enacted on February 21, 2018, and applies
where one’s offense occurred on or after December 20, 2012, did not
constitute an illegal sentence.
It is axiomatic that “[t]his Court is bound by existing precedent under
the doctrine of stare decisis and continues to follow controlling precedent as
long as the decision has not been overturned by our Supreme Court.”
Commonwealth v. Reed, 107 A.3d 137, 143 (Pa.Super. 2014). Based on
our decisions in Strafford and Bricker, we conclude that Appellant’s fifteen-
year registration requirement authorized by SORNA does not constitute an
illegal sentence; therefore, Appellant’s arguments on appeal fail.
With regard to Appellant’s constitutional challenge under Apprendi, to
which he devotes three paragraphs of argument in his appellate brief, we note
that the facts of the instant matter are distinguishable from those presented
therein. Unlike the defendant in Apprendi, Appellant pled guilty to a single
count of Indecent Assault and was advised of the resulting registration and
reporting requirements under SORNA. The trial court at no time made a
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factual finding that increased Appellant’s sentence which was the result of his
guilty plea to the qualifying crime. As such, this claim also lacks merit.
Judgment of Sentence Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/07/2019
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