J-A19034-15

                                 2015 PA Super 161

COMMONWEALTH OF PENNSYLVANIA,                :       IN THE SUPERIOR COURT OF
                                             :             PENNSYLVANIA
                     Appellee                :
                                             :
              v.                             :
                                             :
KEITH PENNYBAKER,                            :
                                             :
                     Appellant               :          No. 1068 WDA 2014

        Appeal from the Judgment of Sentence entered on May 23, 2014
              in the Court of Common Pleas of Allegheny County,
                 Criminal Division, No. CP-02-CR-0016074-2013

BEFORE: BENDER, P.J.E., JENKINS and MUSMANNO, JJ.

OPINION BY MUSMANNO, J.:                                 FILED JULY 28, 2015

        Keith Pennybaker (“Pennybaker”) appeals from the judgment of

sentence imposed following his conviction of failure to comply with the

sexual    offender    registration   requirements   imposed   by   42   Pa.C.S.A.

§ 9799.10, et seq., also known as the Sexual Offender Registration and

Notification Act (“SORNA”).1 We affirm.

        Pennybaker was convicted of rape2 at a non-jury trial in 1997. As a

result thereof, he became subject to a mandatory registration requirement




1
    See 18 Pa.C.S.A. § 4915.1(a)(2).

2
    See 18 Pa.C.S.A. § 3121.
J-A19034-15


for sexual offenders.3   Because rape is a Tier III sexual offense under

SORNA, Pennybaker became subject to a lifetime registration requirement.

See 42 Pa.C.S.A. § 9799.14(d)(2) (establishing rape as a Tier III sexual

offense); see also id. § 9799.15(a)(3) (requiring an individual convicted of

a Tier III sexual offense to register for life).   In 2011, Pennybaker was

released from prison, and complied with his registration requirement on at

least two occasions. Pennybaker was thereafter incarcerated for six months

in 2013 and, prior to his release, was notified of the requirement to update

his residence registration upon his release from prison.4      Nevertheless,

following his release on September 18, 2013, Pennybaker failed to comply

with his SORNA registration requirement.


3
   At the time of Pennybaker’s conviction, the registration period for a
defendant convicted of a sexual offense was governed by 42 Pa.C.S.A.
§ 9791, et seq., commonly referred to as “Megan’s Law.” Under Megan’s
Law, a defendant convicted of rape was subject to a 10-year registration
requirement. See 42 Pa.C.S.A. § 9793 (effective until December 20, 2012)
(imposing a 10-year registration requirement for a defendant convicted of,
inter alia, rape). SORNA was enacted on December 20, 2011, and became
effective on December 20, 2012. When it became effective, SORNA applied
to sexual offenders already required to register.         See 42 Pa.C.S.A.
§ 9799.10; see also Commonwealth v. Giannantonio, 114 A.3d 429,
431-32 (Pa. Super. 2015) (stating that the prior registration requirements of
Megan’s Law expired when SORNA became effective). Therefore, on the
date SORNA became effective, Pennybaker became subject to the
registration requirements imposed by SORNA. See Giannantonio, 114
A.3d at 431-32. Notably, Pennybaker does not contest the fact that he is
subject to the registration requirements imposed by SORNA.
4
  Pursuant to 42 Pa.C.S.A. § 9799.15(g)(2), Pennybaker was required to
appear at an approved registration site within three business days of his
release from prison to provide current information relating to his change in
residence.


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J-A19034-15


      On October 4, 2013, Pennybaker was charged with one count of failure

to comply with registration requirements under 18 Pa.C.S.A. § 4915.1. The

matter proceeded to a non-jury trial on April 4, 2014, at which Pennybaker

admitted that he was aware of his registration requirement and that he had

failed to comply with it. At the conclusion of the trial, the trial court found

Pennybaker guilty of violating section 4915.1(a)(2). On April 10, 2014, the

Commonwealth filed a Notice of Intention to Seek Mandatory Sentence,

pursuant to 42 Pa.C.S.A. § 9718.4(a)(1)(iii). In response, Pennybaker filed

a   Motion   to   Bar   Application   of    Mandatory   Minimum   Sentence   and,

subsequently, an Amended Motion. On April 29, 2014, the Commonwealth

filed a Motion to Apply Mandatory Minimum Sentence.          Pennybaker filed a

Reply Brief on May 7, 2014. At the sentencing hearing on May 23, 2014, the

trial court denied Pennybaker’s Motion and sentenced him to the mandatory

minimum period of incarceration of 36 to 72 months.          Pennybaker filed a

Post-Sentence Motion on May 30, 2014, and Additional Persuasive Authority

on June 2, 2014. On June 3, 2014, the trial court denied Pennybaker’s Post-

Sentence Motion.

      On July 3, 2014, Pennybaker filed a timely Notice of Appeal.            On

December 1, 2014, after several requests for extension of time, Pennybaker

filed a Concise Statement of Errors Complained of on Appeal. On December

23, 2014, the trial court filed its Pennsylvania Rule of Appellate Procedure

1925(a) Opinion.



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J-A19034-15


        On appeal, Pennybaker raises the following issue for our review:

        Whether pursuant to the Supreme Court of the United States[’]
        decision in Alleyne v. United States,[5] 42 Pa.C.S.A. § 9718.4
        is unconstitutional[,] as it only requires a judge to find a fact
        triggering a mandatory minimum sentence – [] Pennybaker’s
        SORNA registration period length – by a preponderance of the
        evidence, and not by a jury beyond a reasonable doubt?

Brief for Appellant at 8 (capitalization omitted, footnote added).

        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-waiveable challenge to the legality
        of the sentence. Issues relating to the legality of a sentence are
        questions of law, as are claims raising a court’s 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).

        Pursuant to 42 Pa.C.S.A. § 9799.15, Pennybaker, as a convicted

sexual offender, was required to appear at an approved registration site

within three business days of his release from prison to provide current

information relating to his change in residence.             See 42 Pa.C.S.A.

§ 9799.15(g)(2).      An individual, such as Pennybaker, who is subject to

registration under 42 Pa.C.S.A. § 9799.13, commits an offense if he

knowingly fails to verify his address or be photographed as required by 42

Pa.C.S.A. § 9799.15. See 18 Pa.C.S.A. § 4915.1(a)(2). Additionally, any

individual subject to lifetime SORNA registration under sections 9799.13 and


5
    133 S. Ct. 2151 (2013).


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J-A19034-15


9799.15, who fails to comply with such registration requirement, is subject

to a mandatory sentence of at least three years in prison. See 42 Pa.C.S.A.

§ 9718.4(a)(1)(iii).6

      Pennybaker contends that the trial court erred when it sentenced him

to a mandatory minimum sentence, under section 9718.4, based on his

SORNA registration requirement because, he contends, the length of his

registration requirement is a “fact” that must be found by a jury beyond a

reasonable doubt pursuant to Alleyne.           Brief for Appellant at 14.

Pennybaker argues that 42 Pa.C.S.A. § 9718.4 is unconstitutional because it

requires a judge to find a “fact” that triggers the application of a mandatory

minimum sentence (i.e., the length of the registration requirement) by a

“preponderance of the evidence standard,” rather than by a jury applying a

“beyond a reasonable doubt” standard.      Brief for Appellant at 14.   While

Pennybaker acknowledges that prior convictions are an exception to Alleyne

and Apprendi v. New Jersey, 530 U.S. 466 (2000), he nevertheless

asserts that a “prior conviction” is separate from the “sentence” imposed for

the prior conviction. Brief for Appellant at 20. In support of his argument,

Pennybaker points out that the statute denoting the various SORNA

registration requirements are found in the Sentencing Code rather than the

Crimes Code.     Id. at 20 n.3.    Pennybaker claims that the registration

6
 Section 9718.4 provides for the imposition of a lesser mandatory minimum
sentence (2 years) for individuals who are subject to 15 years of SORNA
registration. See 42 Pa.C.S.A. § 9718.4(a)(1)(i).



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J-A19034-15


requirement imposed following his conviction of rape was a part of his

sentence and not a part of his prior conviction. Brief for Appellant at 20.7

Additionally, Pennybaker asserts that a SORNA registration requirement

constitutes a “collateral consequence” of a conviction, rather than a

punishment. Id. at 22. For this reason, Pennybaker contends, the lifetime

registration requirement imposed as part of his sentence for the rape

conviction is not a prior conviction, but, rather, constitutes a fact which the

finder of fact is required to determine beyond a reasonable doubt pursuant

to Alleyne. Brief for Appellant at 14.

      “We begin our analysis by recognizing that there is a strong

presumption in the law that legislative enactments do not violate the

constitution. Moreover, there is a heavy burden of persuasion upon one who

challenges the constitutionality of a statute.”   Commonwealth v. Barud,

7
  In support of his argument, Pennybaker relies on Commonwealth v.
Hainesworth, 82 A.3d 444 (Pa. Super. 2013), and Commonwealth v.
Nase, 104 A.3d 528 (Pa. Super. 2014). However, both Hainesworth and
Nase are factually and procedurally distinguishable from the instant case.
In each of those cases, the defendant had pled guilty to a sexual offense
based, in part, on either the absence of a registration period, or a limited
registration period that was in place under Megan’s Law at the time of the
plea agreement. When the statutory registration period was subsequently
enlarged by SORNA, the defendants challenged the imposition of a
registration period beyond what than they had agreed to pursuant to their
respective plea bargains. Relying on contract principles, this Court ruled
that the defendants were not subject to a SORNA registration period beyond
what they had bargained for in their negotiated plea agreements. See
Hainesworth, 82 A.3d at 450; Nase, 104 A.3d at 535. Here, Pennybaker
did not enter into a negotiated plea agreement; rather, he was convicted of
rape by a jury.      Moreover, Pennybaker does not contest his lifetime
registration requirement under SORNA. Thus, his reliance on Hainesworth
and Nase is misplaced.


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J-A19034-15


681 A.2d 162, 165 (Pa. 1996) (citations omitted). As a matter of statutory

construction, we presume “the General Assembly does not intend to violate

the Constitution of the United States or of this Commonwealth.” 1 Pa.C.S.A.

§ 1922(3). A statute will not be declared unconstitutional unless it clearly,

palpably, and plainly violates the Constitution, and all doubts are to be

resolved in favor of a finding of constitutionality.    Commonwealth v.

Hendrickson, 724 A.2d 315, 317 (Pa. 1999).

     In Alleyne, the United States Supreme Court held that “[a]ny fact

that, by law, increases the penalty for a crime is an ‘element’ that must be

submitted to the jury and found beyond a reasonable doubt.” Alleyne, 133

S. Ct. at 2155.   However, in Almendarez-Torres v. United States, 523

U.S. 224 (1998), the Supreme Court stated that the fact of a prior conviction

does not need to be submitted to a jury and found beyond a reasonable

doubt. Id. at 1232. The Alleyne Court explicitly noted that Almendarez-

Torres remains good law, and is a narrow exception to the holding of

Alleyne. See Alleyne, 133 S. Ct. at 2160 n.1.8

     Therefore, as the law currently stands, the imposition of a mandatory

minimum sentence based on a prior conviction is not unconstitutional. See

8
  We observe that several Pennsylvania sentencing enhancement statutes
have been rendered unconstitutional pursuant to Alleyne, including, inter
alia, 18 Pa.C.S.A. § 6317 (relating to sentences for drug crimes committed
in school zones); 18 Pa.C.S.A. § 7508 (relating to sentences for drug
trafficking); 42 Pa.C.S.A. § 9712 (relating to sentences for offenses
committed with firearms); 42 Pa.C.S.A. § 9713 (relating to sentences for
offenses committed on public transportation); and 42 Pa.C.S.A. § 9718
(relating to sentences for offenses against persons under 16 years of age).


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J-A19034-15


Commonwealth v. Hale, 85 A.3d 570, 585 n.13 (Pa. Super. 2014) (holding

that prior convictions are the remaining exception to Apprendi and

Alleyne). However, “in cases where the fact which increases the maximum

penalty is not a prior conviction and requires a subjective assessment,

anything less than proof beyond a reasonable doubt before a jury violates

due process.” Commonwealth v. Aponte, 855 A.2d 800, 811 (Pa. 2004)

(emphasis supplied).

      Here, the statute at issue, 42 Pa.C.S.A. § 9718.4(a)(1)(iii), does not

provide for any fact-finding, nor does it make the application of the

mandatory minimum sentence contingent on any factual question that has

not already been determined.      See Aponte, 855 A.2d at 811 (noting that

the enhancement statute at issue in that case, relating to prior convictions,

was not illegal because application of the statute was not contingent on any

fact-finding or any factual question that had not already been determined).

      Moreover, the length of Pennybaker’s SORNA registration requirement

is not a “fact” that requires a subjective assessment.        See Aponte, 855

A.2d at 811.      Rather, the length of Pennybaker’s SORNA registration

requirement is established by statute.       See 42 Pa.C.S.A. § 9799.14(d)(2)

(establishing   rape   as   a   Tier   III   sexual   offense);   see   also   id.

§ 9799.15(a)(3) (requiring an individual convicted of a Tier III sexual

offense to register for life). As such, the fact that Pennybaker is subject to

SORNA registration for the rest of his life is, like statutes enhancing



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J-A19034-15


sentences based on prior convictions, “an objective fact that initially was

cloaked in all the constitutional safeguards, and is now a matter of public

record.”   Aponte, 855 A.2d at 811.          Because the length of Pennybaker’s

registration requirement was mechanical and capable of objective proof,

there was no need for the jury to determine this issue. See id. Accordingly,

we   conclude   that     the   sentencing    enhancement contained in section

9718.4(a)(1)(iii)   is    constitutionally    valid,   and   reject   Pennybaker’s

constitutional challenge thereto.     Having determined that Pennybaker was

properly sentenced under section 9718.4(a)(1)(iii), we affirm the judgment

of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/28/2015




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