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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DILLAN MATTHEW FREY :
:
Appellant : No. 1971 MDA 2019
Appeal from the Judgment of Sentence Entered November 26, 2019
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0002842-2018
BEFORE: LAZARUS, J., DUBOW, J., and KING, J.
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 23, 2020
Dillan Matthew Frey appeals from the judgment of sentence entered in
the Court of Common Pleas of Cumberland County. Upon review, we affirm.
On August 22, 2019, Frey entered a guilty plea to involuntary deviate
sexual intercourse.1 The victim, Frey’s cousin, was nine years old at the time
of the offenses, which occurred sometime between January 1, 2011, and
December 31, 2011.2
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1 18 Pa.C.S.A. § 3123(a)(7) (victim less than 16 years of age and offender
four or more years older than victim and complainant and victim are not
married). This offense is graded as a felony of the first degree.
2 The information charged Frey with involuntary deviate sexual intercourse,
corruption of minors, and indecent assault, which offenses occurred “on or
about or between Saturday, the 1st day of January, 2011 and Saturday, the
31st day of December, 2011[.]” Criminal Information, 12/18/18.
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On December 2, 2019, the Honorable Thomas A. Placey sentenced Frey
to 48 to 96 months’ imprisonment, followed by 96 months of supervised
probation. At sentencing, the Commonwealth advised Frey, a Tier III
offender,3 of his registration and reporting requirements pursuant to the
Sexual Offender Registration and Notification Act (SORNA), 42 Pa.C.S.A. §§
9799.10 et seq. Frey did not file post-sentence motions. On December 9,
2019, Frey filed this timely appeal. Both Frey and the trial court complied
with Pa.R.A.P. 1925.
Frey raises three issues for our review:
1. Is Frey’s sentence of lifetime punishment pursuant to
SORNA illegal, since SORNA is not a sentencing alternative
authorized by section 9721 of the Judicial Code, and the trial
court therefore lacked authority to impose such a sentence?
2. Is Frey’s sentence of lifetime punishment pursuant to
SORNA illegal since the statutory maximum for a felony of
the first degree as codified in section 1103(a) of the Criminal
Code is twenty (20) years?
3. Is Frey’s sentence of lifetime punishment pursuant to
SORNA a violation of the Sixth Amendment to the United
States Constitution, applied to the states through the
Fourteenth Amendment 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 [Frey] “pose[s] a high
risk of committing additional sexual offenses,” 42 Pa.C.S.A.
§ 9799.11(a)(4), a fact that was not submitted to a jury nor
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3 Frey was classified as a Tier III offender based on his conviction of
involuntary deviate sexual intercourse, victim under the age of 16. See 42
Pa.C.S.A. § 9799.14(d)(4). Frey was not determined to be a sexually violent
predator (SVP). As a Tier III offender, Frey is required to register for life.
See 42 Pa.C.S.A. § 9799.15(a)(3).
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proven beyond a reasonable doubt, as required by
Apprendi v. New Jersey, 530 U.S. 466 (2000)?
Appellant’s Brief, at 6.
Frey argues lifetime registration is an illegal sentence, as registration
pursuant to SORNA is not a sentencing alternative authorized by section 9721
of the Judicial Code. He also argues lifetime registration is illegal as it exceeds
the statutory maximum for his offense, a felony of the first degree. See 18
Pa.C.S.A. § 1103(1) (sentence not to exceed 20 years). Finally, Frey argues
lifetime registration is illegal as the penalty imposed increases his sentence
beyond the statutory maximum based upon a fact not found by the jury
beyond a reasonable doubt, in violation of Apprendi.
Each of Frey’s claims is based on the premise that Subchapter I is
punitive. Recently, in Commonwealth v. Lacombe, ___ A.3d ___, 2020 WL
4150283 (35 & 64 MAP 2018) (Pa. 2020) (filed July 21, 2020), the
Pennsylvania Supreme Court addressed this issue. The Court explained:
In response to [Commonwealth v.] Muniz, [164 A.3d 1189 (Pa.
2017)] and the Superior Court’s decision in Commonwealth v.
Butler, 173 A.3d 1212 (Pa. Super. 2017) (Butler I) (invalidating
SORNA’s mechanism for determining SVP status, see 42 Pa.C.S.
§ 9799.51(b)(4)), rev’d 226 A.3d 972 (Pa. 2020), the General
Assembly enacted Subchapter I, the retroactive application of
which became the operative version of SORNA for those sexual
offenders whose crimes occurred between April 22, 1996 and
December 20, 2012. In this new statutory scheme, the General
Assembly, inter alia, eliminated a number of crimes that
previously triggered application of SORNA and reduced the
frequency with which an offender must report in person to the
Pennsylvania State Police (PSP). With regard to Subchapter I, the
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General Assembly declared its intent that the statute “shall not be
considered as punitive.” 42 Pa.C.S. § 9799.51(b)(2).
Id., slip op. at 17.4 The Court applied the Mendoza-Martinez5 factors and
concluded that balancing these factors weighed in favor of finding the
registration and notification requirements of Subchapter I nonpunitive. The
Court, unable to find the requisite “clearest proof” Subchapter I is punitive,
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4 See 42 Pa.C.S.A. §§ 9799.10-9799.41 (amended by Act of Feb. 21, 2018,
P.L. 27, No. 10 and Act of June 12, 2018, P.L. 1952, No. 29. Act 10 (now Act
29) (2018, Feb. 21, P.L. 27, No. 10, § 6, imd. effective). Essentially, Act 10
sought to eliminate “punitive” effects and return the law back to Megan’s Law
II, adding a mechanism for removal from registry after 25 years. Act 10
structured two different tracks for sex offenders:
Subchapter H, which is nearly identical to SORNA and applies to
offenses committed after Dec. 20, 2012 (date SORNA was
effective), provides an offender may petition for removal from
registry and allows some reporting requirements to be completed
remotely.
Subchapter I, (applicable here, as Frey’s offenses occurred during
2011, see note 2, supra), regulates those persons with offenses
that occurred prior to SORNA (Dec. 20, 2012), applies to offenses
committed between April 22, 1996 and December 20, 2012, and
requires offenders to register for periods of either 10 years or life
(SVPs for life). It reduced the length of time for which many
offenders must register from 15 or 25 years to 10 years, and
eliminated some offenses from registration. It also provides for a
mechanism for possible removal of lifetime registration after 25
years.
5 Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). The Mendoza-
Martinez factors are as follows: (1) whether the sanction involves an
affirmative disability or restraint; (2) whether it has historically been regarded
as a punishment; (3) whether it comes into play only on a finding of scienter;
(4) whether its operation will promote the traditional aims of punishment, that
is, retribution and deterrence; (5) whether the behavior to which it applies is
already a crime; (6) whether an alternative purpose to which it may rationally
be connected is assignable for it; and (7) whether it appears excessive in
relation to the alternative purpose assigned. Id. at 146.
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stated it could not “override legislative intent and transform what has been
denominated a civil remedy into a criminal penalty[.]” Id., slip op. at 35
(internal citations and quotations omitted).
Our Supreme Court has held Subchapter I does not constitute criminal
punishment. Frey’s claims, therefore, must fail.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/23/2020
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