J-S94002-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GUY C. HAUGHWOUT, SR.
Appellant No. 2257 MDA 2015
Appeal from the Judgment of Sentence October 26, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0001537-2014
CP-40-CR-0003790-2013
BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 13, 2017
Guy C. Haughwout, Sr. appeals from the judgment of sentence,
entered in the court of Common Pleas of Luzerne County, following his guilty
plea to charges of failure to comply with registration requirements1 and
failure to provide accurate registration information2 as a sexually violent
predator (SVP). Upon review, we vacate the judgment of sentence and
remand for resentencing.
Haughwout was convicted of indecent assault in February 2002 and
has been classified as an SVP subject to lifetime registration. On September
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 4915.1(a).
2
18 Pa.C.S. § 4915.1(a)(3).
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17, 2015, Haughwout pled guilty to failure to provide accurate registration
information and failure to comply with registration requirements. The court
sentenced him to an aggregate sentence of 11 to 22 years’ incarceration on
October 26, 2015. Haughwout filed a post-sentence motion, which the court
denied on November 18, 2015. Thereafter, Haughwout filed a timely notice
of appeal and court-ordered concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Haughwout raises the following issue
for our review:
Whether section 9718.4 of Title 42 is unconstitutional pursuant
to United States v. Alleyne[,133 S. Ct. 2151 (2013),] as it
requires the trial court to determine by a preponderance of the
evidence an additional fact that triggers a mandatory minimum
sentence, specifically the length of time the appellant is required
to register, which is not encompassed by Alleyne’s limited
“prior conviction” exception?
Brief for Appellant, at 4.
Our standard of review regarding the applicability of a mandatory
sentencing provision is as follows:
Generally, a challenge to the application of a mandatory
minimum sentence is a non-waiv[able] challenge to the legality
of the sentence. Issues relating to the legality of a sentence are
questions of law, as are claims regarding the interpretation of a
statute. Our standard of review over such questions is de novo
and our scope of review is plenary.
Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa. Super. 2012).
Haughwout asserts that the trial court erred when it sentenced him to
a mandatory minimum sentence as set forth in section 9718.4, arguing that
section 9718.4 is unconstitutional following our Supreme Court’s ruling in
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Alleyne.3 Specifically, Haughwout argues that section 9718.4 requires the
sentencing judge to determine “the length of time a defendant is required to
register, which is not encompassed by Alleyne’s limited ‘prior conviction’
exception.” Brief for Appellant, at 8.
Haughwout’s argument was recently raised in Commonwealth v.
Pennybaker, 121 A.3d 530 (Pa. Super. 2015), vacated by Commonwealth
v. Pennybaker, 145 A.3d 720 (Pa. 2016) (per curiam order). A panel of
this Court rejected Pennybaker’s argument and determined that the length
of registration to which he was subject was capable of objective proof and
was essentially the equivalent of a prior conviction. Id. at 534; see
Commonwealth v. Hale, 85 A.3d 570, 585 n. 13 (Pa. Super. 2014),
affirmed by Commonwealth v. Hale, 128 A.3d 781, 786 (Pa. 2015)
(imposition of mandatory minimum sentence based on prior conviction is not
unconstitutional).
Our Supreme Court granted allowance of appeal in Pennybaker and,
in a per curiam order, vacated this Court’s decision and remanded the
matter to the trial court “for resentencing without application of 42 Pa.C.S. §
9718.4.” Pennybaker, 145 A.3d 720. In remanding Pennybaker, the
Supreme Court referenced its decisions in Commonwealth v. Hopkins,
____________________________________________
3
In Alleyne, the United States Supreme Court held that any fact that
increases the mandatory minimum sentence is an “element” of the crime
that must be submitted to the jury.
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117 A.3d 247 (Pa. 2015) (mandatory minimum sentencing scheme for
offenses regarding controlled substance crimes occurring in school zones
unconstitutional based upon Alleyne) and Commonwealth v. Wolfe, 140
A.3d 651 (Pa. 2016) (mandatory minimum sentencing scheme for
involuntary deviate sexual intercourse in 42 Pa.C.S § 9718 unconstitutional
based upon Alleyne).
Based upon the foregoing, our Court’s ruling in Pennybaker is no
longer sound, and we vacate the judgment of sentence and remand for
resentencing without application of section 9718.4.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/2017
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Com. v. Haughwout, G., Sr.
Combined Opinion