J-S55025-17
2017 PA Super 329
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
v.
MICHAEL VINCENT LEONARD
Appellant No. 1368 MDA 2016
Appeal from the Judgment of Sentence July 21, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0000181-2016
BEFORE: DUBOW, RANSOM, and STRASSBURGER, JJ.*
OPINION BY RANSOM, J.: FILED OCTOBER 17, 2017
Appellant, Michael Vincent Leonard, appeals from the judgment of
sentence of two and one-half to ten years of incarceration, imposed July 21,
2016, following a negotiated guilty plea resulting in his conviction for one
count of distribution of child pornography, seven counts of possession of child
pornography, and two counts of criminal use of a communication facility.1
Appellant was required to register as a lifetime offender pursuant to the Sexual
Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S. §§ 9799.10-
9799.41. We vacate the judgment of sentence in part and remand for
imposition of a twenty-five-year period of registration under SORNA.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S. §§ 6312(c), 6312(d), 7512, respectively.
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At sentencing, counsel for Appellant argued that he should be treated
as a Tier II sexual offender, as all convictions had arisen from the same
criminal episode and Appellant was convicted of all offenses on the same date.
See Notes of Testimony (N.T.), 7/21/16, at 20-21. Counsel noted that A.S.
v. Pennsylvania State Police, 143 A.3d 896 (Pa. 2016), dealing with the
triggering requirements for lifetime registration, had not yet been decided by
the Pennsylvania Supreme Court. See N.T. at 20-21. Counsel requested that
the court accept the guilty plea and allow him to preserve the argument in the
event of a decision. Id. Thus, consistent with the terms of Appellant’s plea,
the court directed Appellant’s lifetime registration as a Tier III sex offender
under SORNA. Id. at 15-16, 20.
SORNA requires that defendants convicted of certain sexual offenses
register with the Pennsylvania State Police and contains a three-tiered system
for classifying offenses and their corresponding registration periods. See,
e.g., Commonwealth v. Lutz-Morrison, 143 A.3d 891, 892 (Pa. 2016)
(citing 42 Pa.C.S. § 9799.15(a)(1)-(3)). Appellant was convicted of one Tier
II offense, 18 Pa.C.S. § 6312(c), requiring registration for twenty-five years,
and seven Tier I offenses, 18 Pa.C.S. § 6312(d), requiring registration for
fifteen years. See 42 Pa.C.S. § 9799.14(b)-(c). However, the statute also
provides that if the defendant has “[t]wo or more convictions of offenses listed
as Tier I or Tier II sexual offenses,” the defendant falls within Tier III and
must register for life. See 42 Pa.C.S. § 9799.14(d)(16).
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On August 15, 2016, the Pennsylvania Supreme Court decided A.S.,
holding that Megan’s Law requires an act, a conviction, and a subsequent act
to trigger the lifetime registration for multiple offenses otherwise subject to
ten-year registration. See A.S., 143 A.3d at 908. At the same time, the
Supreme Court decided Lutz-Morrison, holding that SORNA requires an act,
a conviction, and a subsequent act to trigger lifetime registration for multiple
offenses otherwise subject to fifteen- or twenty-five-year periods of
registration. Lutz-Morrison, 143 A.3d at 895, 898 (holding that defendant’s
guilty plea to multiple counts of child pornography at the same time did not
trigger lifetime registration).
On August 19, 2016, Appellant timely filed a notice of appeal to this
Court. Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors
complained of on appeal, and the sentencing court issued a responsive
opinion, requesting that we remand for resentencing pursuant to A.S. and
Lutz-Morrison.
On appeal, Appellant raises a single issue for our review:
I. Where [Appellant] was convicted on the same date of one count
of distribution of child pornography, a violation of 18 Pa.C.S. §
6312(c), and seven counts of possession of child pornography,
violations of 18 Pa.C.S. § 6312(d), and all offenses involved a
single course of conduct and were docketed to the same
information number, should he have been sentenced to 25 years
of sex offender registration pursuant to 42 Pa.C.S. §§ 9799.14
and 9799.15, rather than lifetime registration?
Appellant’s Brief at 4.
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We note that this is a pure question of law, and therefore, our standard
of review is de novo, and our scope of review is plenary. See Commonwealth
v. Wolfe, 106 A.3d 800, 802 (Pa. Super. 2014), appeal dismissed, 145 A.3d
727 (Pa. 2016).
As discussed above, in Lutz-Morrison, the Pennsylvania Supreme
Court clarified that Section 9799.14(d)(16) of SORNA requires an act,
conviction, and subsequent act to trigger lifetime registration for multiple
offenses otherwise subject to fifteen- or twenty-five-year periods of
registration. Lutz-Morrison, 143 A.3d at 894-95; accord A.S., supra at
908. Thus, multiple convictions based upon charges in a single information
for possession of child pornography did not qualify for Tier III classification.
Id. We agree with Appellant and the trial court that Appellant’s case is within
the ambit of Lutz-Morrison, as he entered a negotiated guilty plea to multiple
Tier I and Tier II offenses, arising from the same arrest, on the same date.
Accordingly, per A.S. and Lutz-Morrison, the matter should be remanded for
resentencing in accordance with those opinions.
The Commonwealth, while conceding that Appellant should be
reclassified as a Tier II offender with twenty-five-year registration,
nevertheless contends that Appellant has erred procedurally by filing his
appeal in this Court. See Appellee’s Brief at 5-10. The Commonwealth
employs a tortured argument to claim that 1) Appellant is not contesting the
statutory construction of SORNA, but is instead arguing he has been
incorrectly classified under SORNA; 2) Appellant’s registration requirement is
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a collateral matter administratively managed by the Pennsylvania State
Police; 3) Appellant failed to join the Pennsylvania State Police as an
indispensable party; 4) Appellant incorrectly filed the instant appeal in this
Court as opposed to the Commonwealth Court of Pennsylvania. See
Appellant’s Brief at 5-10. In so arguing, the Commonwealth relies upon
Commonwealth v. Demora, 149 A.3d 330 (Pa. Super. 2016), where a prior
panel of this Court held that an appellant’s failure to join the Pennsylvania
State Police (“PSP”) as an indispensable party resulted in a lack of jurisdiction
in the Court of Common Pleas. Demora, 149 A.3d at 333.
Demora is distinguishable from the instant matter. In Demora, the
defendant’s guilty plea to one count of indecent assault subjected him to a
ten-year reporting requirement under Megan’s Law I. See Demora, 149 A.3d
at 331. After serving his sentence, the defendant began reporting to the PSP
under Megan’s Law II. Id. In December 2012, the PSP notified the defendant
that pursuant to SORNA he was required to register as a Tier III offender and
was subject to the lifetime reporting requirement. Id. The defendant filed a
petition seeking a determination that he was not subject to the reporting
requirements. Id. The trial court concluded that the defendant had not
established that the registration requirement was a material term of his plea
and denied the petition. Id.
On appeal, this Court concluded that the trial court lacked jurisdiction
to entertain the defendant’s petition, as the PSP had not been named as a
defendant. Demora, 149 A.3d at 331. We noted that the defendant was no
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longer serving any part of his sentence, nor had the District Attorney’s Office
taken an action against him. Id. at 332. It was the PSP’s action requiring
the defendant to register and report under SORNA to which he objected, and
thus, the PSP was an indispensable party. Id. We noted that the appropriate
form of action for the relief sought by that defendant was a petition sounding
in declaratory and injunctive relief against the PSP.
Initially, we note that Appellant is currently serving a sentence. He
timely filed a direct appeal within the appropriate period. He has not yet
registered to report to the PSP, as he has not yet been released from custody.
Further, Appellant challenges the requirement imposed by the trial court that
he register as a sex offender for life based upon the court’s interpretation of
SORNA’s requirements. This case is properly before this Court, as was the
defendant’s appeal in Lutz-Morrison and numerous other cases implicating
the same fact patterns and claims. See Lutz-Morrison, 143 A.3d at 894
(appellant filed direct appeal to this court from sentence and trial court’s
notification that his convictions subjected him to lifetime registration, and did
not join the Pennsylvania State Police as a necessary party); cf. A.S., 143
A.3d at 898-99 (appellee had completed his sentence and filed petition to
compel the PSP to correct his sexual offender registration status in the
Commonwealth Court of Pennsylvania, joining PSP as a necessary party).
Therefore, we vacate Appellant’s judgment of sentence in part, as to his
classification as a Tier III offender, and remand for the trial court to impose a
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twenty-five-year registration requirement under Section 9799.15(a)(2). In all
other respects, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed in part, and vacated in part. Case
remanded for proceedings consistent with this decision. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2017
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Commonwealth v. Leonard
Combined Opinion