J-S87026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

BRYANT MAURICE ASTLES

                            Appellant                        No. 651 MDA 2016


         Appeal from the Judgment of Sentence Dated March 17, 2016
              In the Court of Common Pleas of Luzerne County
               Criminal Division at No(s): CP-40-0000965-2015

BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.:                                  FILED JANUARY 24, 2017

        Appellant, Bryant Maurice Astles, appeals from the judgment of

sentence imposed after he pleaded guilty, on October 15, 2015, to one count

of corrupting a minor in violation of 18 Pa.C.S. § 6301(a).                 Appellant

challenges the lifetime registration requirement to which he agreed under

the Sex Offender Registration and Notification Act, 42 Pa.C.S. §§ 9799.10–

9799.41     (SORNA).        On    the   basis   of   our    Supreme   Court’s   recent

interpretation of SORNA in A.S. v. Pennsylvania State Police, 143 A.3d

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

2016), we vacate the lifetime registration portion of Appellant’s sentence


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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and remand for imposition of a fifteen-year reporting requirement under

SORNA.

       The Commonwealth stated the factual basis for Appellant’s guilty plea

as follows:

       Offense date, August 16th of 2012.        On various occasions
       between June 1st, 2012 and August 31, 2012, the defendant,
       being 18 years of age and upwards, corrupted or tended to
       corrupt the morals of a child under the age of 18 years, namely,
       a 15-year-old juvenile female by attempting to engage in a sex
       act with her.

N.T., 10/15/15, at 6. The Criminal Complaint stated that, according to the

juvenile victim, Appellant raped her, and she subsequently learned she was

pregnant and gave birth to a daughter. Criminal Complaint, 2/25/15, at 1-

2.1

       On March 17, 2016, after receipt of Appellant’s guilty plea, the trial

court sentenced Appellant to 9 to 18 months’ incarceration. Consistent with

the terms of Appellant’s negotiated plea, the court directed Appellant’s

lifetime registration as a Tier III sex offender under SORNA.


       SORNA requires persons convicted of certain sexual offenses to

register with the Pennsylvania State Police.     The statute “established a
____________________________________________


1
  On February 25, 2015, the Commonwealth charged Appellant with
statutory sexual assault, 18 Pa.C.S. § 3122.1, but it amended the complaint
on March 11, 2015 to withdraw the statutory sexual assault charge and add
the felony corruption of minors charge, 18 Pa.C.S. § 6301(a), as part of
Appellant’s negotiated plea. Criminal Complaint, 2/25/15; N.T., 10/15/15,
at 2.



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three-tiered   system   for   classifying   offenses   and   their   corresponding

registration periods.” Lutz-Morrison, 143 A.3d at 892. “The tiers provide

for registration periods of fifteen years (Tier I), twenty-five years (Tier II),

or lifetime (Tier III), depending on the offense(s) and/or circumstances.”

Id., citing 42 Pa.C.S. § 9799.15(a)(1)–(3).        Under SORNA, corrupting a

minor in violation of 18 Pa.C.S. §§ 6301(a) is a Tier I offense subject to a

15-year registration requirement. See 42 Pa. C.S. § 9799.14(b)(8). However,

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. Id. § 9799.14(d)(16). At the time Appellant was convicted in this

case, he had one prior conviction for a Tier I sexual offense — indecent

assault in violation of 18 Pa. C.S. § 3126(a). Order, 3/17/16; see 42 Pa.

C.S. § 9799.14(b)(6) (making indecent assault a Tier I offense under

SORNA). Accordingly, the trial court’s sentencing order included the lifetime

registration requirement, with a notation on the order that read, “Tier I –

subsequent offense.” Order, 3/17/16.

      Although Appellant agreed to lifetime registration as part of his plea,

he filed this timely appeal, in which he states his single issue as follows:

      Whether the Trial Court erred by classifying [Appellant] as a Tier
      III sexual offender, pursuant to 42 Pa.C.S. 9799.14(d)(16)
      (multiple convictions), and imposing a lifetime registration
      requirement, where the multiple offenses charged in this case
      are from the same course of conduct?




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Appellant’s Brief at 1.   Appellant’s appeal forecast the Supreme Court’s

interpretation of SORNA in A.S. and Lutz-Morrison, opinions that the

Supreme Court issued on August 15, 2016.

      The question in Lutz-Morrison was whether the language in Section

9799.14(d)(16) of SORNA — which provides that conviction of “[t]wo or

more convictions of offenses listed as Tier I or Tier II sexual offenses”

requires lifetime registration as a Tier III sexual offender under the statute

— called for a Tier III classification even where the multiple convictions all

were based on a single course of conduct. The defendant in Lutz-Morrison

was convicted of three counts of possession of child pornography on the

basis of videos and images found at the same time on his computer and

iPhone.    143 A.2d at 893-91.   Possession of child pornography is a Tier I

offense under SORNA, and because of the multiple counts, the defendant

was classified as a Tier III offender and required to register for life. Id. at

894. The Supreme Court reversed that aspect of the defendant’s sentence,

holding:

      [T]he statute, which sets forth a graduated (three-tier) scheme
      of registration, encompasses a recidivist philosophy. As such,
      the statute 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.    Under that analysis, the defendant’s multiple convictions of

Tier I offenses based on his single course of conduct in possessing the child




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pornography did not qualify for a Tier III classification under the statute.2

          Appellant contends that, like the defendants in A.S. and Lutz-

Morrison, he was convicted of multiple Tier I offenses that arise out of a

single course of conduct, and that it therefore was error to require his

lifetime registration as a Tier III sexual offender.            Resolution of this

contention requires that we determine whether Appellant’s earlier conviction

of indecent assault in violation of 18 Pa. C.S. § 3126(a) arose from the same

course of conduct as that giving rise to his conviction in this case for

corrupting a minor in violation of 18 Pa.C.S. §§ 6301(a). We conclude that

it did.

          Both convictions relate to events in the summer of 2012 involving

Appellant and the same victim.           Appellant’s conviction of indecent assault

was based on an incident that summer, in which Appellant touched the

victim’s breasts. N.T., 10/6/15,3 at 2-4; Criminal Complaint, 9/12/12, at 2.




____________________________________________


2
  A.S. presented the same issue under a predecessor to the SORNA statute,
and the Court decided both A.S. and Lutz-Morrison together and
interpreted the two statutes consistently. In A.S., the defendant was
convicted of sexual abuse of a child and unlawful contact with a child as a
result of his taking and transmission of sexually explicit photographs of a girl
under 16. 143 A.3d at 899. The Court concluded that because the crimes
“arose out of the same course of conduct,” they did not give rise to a Tier III
classification. Id. at 905.
3
  The transcript citations to October 6, 2015 reference the pre-trial hearing;
the transcript citations to October 15, 2015 reference the plea hearing.



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Appellant was charged with that assault on September 12, 2012, and he

pleaded guilty on June 18, 2013.

      The corruption charge at issue in this appeal arose from events that

occurred during the same time period in 2012, when Appellant had sexual

intercourse with the same victim without her consent. Although this crime

occurred in 2012, it was not charged until February 25, 2015, after the

victim came forward with additional information on what had happened that

summer.    In explaining the two-and-a-half year time lapse between the

filing of the two charges, the second Criminal Complaint explained:

           The victim was asked why she was able to talk about being
      sexually assaulted and she accredited the years of therapy,
      support and treatment she received that gave her the courage to
      come forward about everything that happened that night.

Criminal Complaint, 2/25/15, at 2.

      The two criminal complaints that underlie Appellant’s convictions each

allege events that occurred with the same victim in the summer of 2012.

See   Criminal Complaint, 2/25/15; Criminal Complaint, 9/12/12.             In

discussing the separate charges, the trial court stated, “I don’t think there’s

any question it’s the same criminal episode.”      N.T., 10/3/15, at 3.    The

Commonwealth agreed, responding, “It’s the same criminal episode,

however, the indecent assault that the defendant had plead guilty to in the

first prosecution . . . was indecent for contact with the victim’s breast

without her consent, the charge the Commonwealth originally brought. And

I understand the criminal information in the [second] case is different.” Id.


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at 4.    Because the two convictions stemmed from the same course of

conduct, they cannot give rise to a Tier III classification.         In the words of

Lutz-Morrison, there was not an “an act, a conviction, and a subsequent

act,” the sequence needed to trigger lifetime registration for multiple

offenses under SORNA. See 143 A.2d at 895.

        We note that, unlike the defendants in A.S. and Lutz-Morrison, who

entered open guilty pleas, Appellant agreed to the lifetime registration when

he entered his negotiated guilty plea in this case.       However, the fact that

Appellant agreed to lifetime registration as part of his plea on October 15,

2015 is not dispositive of our analysis, as the Supreme Court has construed

the statute to negate the propriety of such lifetime registration in these

circumstances.      Within his negotiated plea, Appellant could not agree to a

sentence     that   is   not   authorized   under   the   statute.      See,   e.g.,

Commonwealth v. Kinnan, 71 A.3d 983 (Pa. Super. 2013) (vacating

judgment of sentence and remanding for resentencing where, although

defendant entered a negotiated guilty plea, the Superior Court determined

that the restitution component of defendant’s sentence was improper).

        Accordingly, with the benefit of the Supreme Court’s recent statutory

construction, we are compelled to recognize the impropriety of Appellant’s

lifetime registration. We therefore vacate the lifetime registration portion of

Appellant’s sentence and remand for imposition of a fifteen-year reporting

requirement under SORNA.          In all other respects, Appellant’s judgment of

sentence is affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/24/2017




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