J-S55021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT WILLIAM KEECH                       :
                                               :
                       Appellant               :   No. 371 WDA 2019

       Appeal from the Judgment of Sentence Entered November 19, 2018
     In the Court of Common Pleas of Elk County Criminal Division at No(s):
                           CP-24-CR-0000216-2017


BEFORE:      MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.:                         FILED JANUARY 06, 2020

        Robert William Keech appeals from the judgment of sentence imposed

following his guilty pleas to corruption of minors and indecent assault. 1 Keech

argues the court erred in notifying him he would be required to register as a

Tier III sexual offender under the Sex Offender Registration and Notification

Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10-9799.75. We vacate Keech’s

judgment of sentence in part and remand for resentencing.

        A criminal information alleged Keech had inappropriate sexual contact

with his granddaughter on five occasions between January and March of 2017.

See N.T. (guilty plea), 7/12/18, at 3-4, 7-8. Keech entered open guilty pleas




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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 6301(a)(1)(ii) and 3126(a)((8), respectively.
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to one count of corruption of minors, as a third-degree felony, and one count

of indecent assault, as a second-degree misdemeanor. Id. at 13, 17-18.

      The court sentenced Keech to an aggregate of six months to 2 years of

incarceration, followed by six years of probation. The court also notified Keech

of his registration requirements under SORNA. The court found that the

offense of corruption of minors was classified as a Tier I sexual offense, and

the offense of indecent assault was classified as a Tier II sexual offense. See

Trial Court Opinion, filed 3/9/19, at 1-2 (citing 42 Pa.C.S.A. §§ 9799.14(b)(8),

(c)(1.3)). The court notified Keech that because of these two convictions, he

would be required to register as a Tier III sexual offender under 42 Pa.C.S.A.

§ 9799.14(d)(16). See id. at 2; N.T. (sentencing), 11/15/18, at 4. This

section provides that “[t]wo or more convictions of offenses listed as Tier I or

Tier II sexual offenses” shall be classified as a Tier III sexual offense. 42

Pa.C.S.A. § 9799.14(d)(16).

      Keech filed a motion for reconsideration, which the court denied. Keech

appealed, and raises the following:

      Did the trial court err and/or abuse its discretion when it found
      [Keech] to be a Tier III SORNA Registrant where [Keech] did not
      meet the statutory criteria of a “sexually violent predator”, where
      the Indecent Assault charge to which [Keech] pled is a Tier II
      offense and where the Corruption of Minors charge to which
      [Keech] pled is a Tier I offense which both arouse out of the same
      incident and involved the same victim?

Keech’s Br. at 4.




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         Keech argues that his guilty pleas to indecent assault and corruption of

minors do not constitute “two or more convictions” of Tier I/Tier II sexual

offenses     under    42    Pa.C.S.A.     §    9799.14(d)(16).   Keech   relies   on

Commonwealth v. Lutz-Morrison, 143 A.3d 891 (Pa. 2016), which he

claims established that Section 9799.14(d)(16) “requires an act, a conviction,

and a subsequent act to trigger lifetime registration for multiple offenses.”

Keech’s Br. at 12 (quoting Lutz-Morrison, 143 A.3d at 895) (Keech’s

emphasis omitted). Keech argues that here, his convictions arose out of the

same incident, and did not qualify as a conviction and a subsequent act. Id.

at 15.

         In its opinion, the trial court asserts Keech waived this issue by not

raising it at any time before the appeal, and presenting it for the first time in

his statement of errors complained of on appeal.2 Tr. Ct. Op. at 2. Keech does

not address waiver in his brief. The Commonwealth did not submit a brief, but

filed a letter directing this Court to the trial court’s opinion.

         The issue is not waived. Keech alleges the trial court erroneously

increased his registration requirement under SORNA. Precedents have

determined that these requirements are punitive in nature and affect the

legality of a sentence, which is a non-waivable issue. See Commonwealth

v. Butler, 173 A.3d 1212, 1215 (Pa.Super. 2017); Commonwealth v.

Sauers, 159 A.3d 1, 16 (Pa.Super. 2017). We therefore review the issue,

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2   See Pa.R.A.P. 1925(b).

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utilizing a plenary scope of review and a de novo standard of review. Butler,

173 A.3d at 1215.

        We conclude Lutz-Morrison controls the outcome of this case. In Lutz-

Morrison, the defendant plead guilty to multiple counts of sexual abuse of

children (possession of child pornography),3 a Tier I sexual offense, after the

police seized four computers at his home. 143 A.3d at 893. The trial court

notified the defendant he would be subject to lifetime registration as a Tier III

offender under Section 9799.14(d)(16). Id. at 894.

        The Supreme Court held that the trial court erred in considering the

defendant’s immediate offenses as “two or more convictions” for purposes of

Section 9799.14(d)(16). Id. The Court noted the defendant “was charged in

a single information arising from the search of his property; he entered court

as a first-time offender on those charges and pled guilty to three counts—all

Tier I offenses; and there were no direct victims of his crimes, much less

multiple direct victims.” Id. at 895. While the Court acknowledged that each

conviction constituted a separate, independent crime, the Court found that

registration under SORNA is “controlled by the recidivist philosophy animating

[the] tiered scheme.” Id. at 895 n.4. The Court therefore concluded that

application of 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.” Id. at 895.

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3   18 Pa.C.S.A. § 6312(d).

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      The Court stated its analysis was controlled by, and further explained

in, a companion case decided the same day, A.S. v. Pennsylvania State

Police, 143 A.3d 896, 897 (Pa. 2016). Id. at 892, 894-95. In A.S., the

defendant challenged application of the analogous section of Megan’s Law II,

the sex offender registration statute that preceded SORNA. The defendant had

“entered an open guilty plea to single counts of sexual abuse of children and

unlawful contact with a minor—each of which was an enumerated offense for

purposes of Megan’s Law II reporting under [42 Pa.C.S.A. §] 9795.1(a).” A.S.,

143 A.3d at 899. The Supreme Court explained that as the statute “sets forth

a   graduated   scheme    of   registration”   and   “encompasses   a   recidivist

philosophy,” it was not designed to apply to first-time offenders, even those

convicted of multiple counts. Id. at 897, 905. The Court explained the statute

was designed “to afford first-time offenders (or offenders convicted of less

serious offenses) some amount of time within which to modify their behavior

away from criminality. Should they fail to take advantage of the opportunity,

and transgress a second time or more, the ‘next’ sentence will be more

severe.” Id. at 898 n.2 (quoting Commonwealth v. Gehris, 54 A.3d 862,

875 (Pa. 2012) (opinion in support of reversal by Castille, C.J., joined by

Saylor and Baer, JJ.)).

      Here, Keech pleaded guilty to two separate offenses: corruption of

minors and indecent assault. Accordingly, he received a sentence for each

crime. However, these convictions arose from criminal conduct alleged in a

single criminal information, resulting in a single criminal case. More

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importantly, as Keech had not been convicted of any other Tier I or Tier II

offense before he pleaded guilty in this case, there was no conviction in

between Keech’s criminal acts at issue here such that application of Section

9799.14(d)(16) was proper. Lutz-Morrison, 143 A.3d at 895. We therefore

vacate Keech’s judgment of sentence as to his classification as a Tier III

offender,   and   remand     for   new    notification   of   Keech’s   registration

requirements. See Commonwealth v. Leonard, 172 A.3d 628, 632

(Pa.Super. 2017); Sauers, 159 A.3d at 16.

      Judgment of sentence vacated in part. Case remanded with instructions.

Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2020




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