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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SCOTT DAVID DOW
Appellant No. 448 MDA 2016
Appeal from the Judgment of Sentence February 16, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001440-2015
BEFORE: OTT, J., DUBOW, J., and PLATT, J.*
JUDGMENT ORDER BY OTT, J.: FILED NOVEMBER 22, 2016
Scott David Dow appeals from the judgment of sentence entered on
February 16, 2016, in the Lancaster County Court of Common Pleas,
following his guilty plea to four counts of sexual abuse of children
(possession of child pornography) and one count of criminal use of a
communication facility.1 The trial court imposed an aggregate sentence of
two to five years’ imprisonment, followed by seven years’ probation. The
court also determined Dow was subject to a lifetime registration requirement
under the Sexual Offenders Registration and Notification Act (“SORNA”), 2 as
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*
Retired Senior Judge assigned to the Superior Court.
1
See 18 Pa.C.S. §§ 6312(d) and 7512(a), respectively.
2
42 Pa.C.S. §§ 9799.10-9799.41.
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a Tier III offender because he had “[t]wo or more convictions of offenses
listed as Tier I or Tier II sexual offenses.” 42 Pa.C.S. § 9799.14(d)(16).3
On appeal, Dow argues the Pennsylvania Supreme Court’s recent decisions
in Commonwealth v. Lutz-Morrison, 143 A.3d 891 (Pa. August 15, 2016),
and A.S. v. Pennsylvania State Police, 143 A.3d 896 (Pa. August 15,
2016), establish the trial court erred in classifying him as a Tier III offender
and imposing a lifetime registration requirement. We agree.
In Lutz-Morrison, the Supreme Court clarified that Section
9799.14(d)(16) “requires an act, a conviction, and a subsequent act to
trigger lifetime registration for multiple offenses otherwise subject to a
fifteen- or twenty-five-year period of registration.” Lutz-Morrison, supra,
143 A.3d at 895 (emphasis supplied). Accord A.S., supra, 143 A.3d at 908
(applying registration requirements of Megan’s Law II). Here, the trial court
imposed the lifetime registration requirement based solely on the multiple
Tier I offenses, included in the same information, to which Dow pled guilty.
Under Lutz-Morrison, Dow’s guilty plea to multiple counts of possession of
child pornography contained in a single criminal complaint, did not subject
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3
Possession of child pornography is a Tier I offense under SORNA, subject to
a 15-year registration requirement. See 42 Pa.C.S. §§ 9799.14(b)(9),
9799.15(a)(1). Because Dow pled guilty to four counts of the offense, the
court applied Section 9799.14(d)(16).
We note that Dow was not deemed to have met the qualifications for
classification as a sexually violent predator. See N.T., 2/6/2016, at 2; 42
Pa.C.S. § 9799.24.
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him to a Tier III lifetime registration requirement because there was no
“subsequent act” following his conviction. Lutz-Morrison, supra, 143 A.3d
at 895.
Therefore, we vacate Dow’s judgment of sentence in part, as to his
classification as a Tier III offender, and remand to the trial court for the
imposition of a 15-year registration requirement under Section
9799.15(a)(1).
Judgment of sentence affirmed in part, and vacated in part. Case
remanded for proceedings consistent with this judgment order. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2016
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