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.
J-S55025-17



      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).




                                     -2-
J-S55025-17



      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.




                                     -3-
J-S55025-17



      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

                                             -4-
J-S55025-17



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

                                      -5-
J-S55025-17



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




                                      -6-
J-S55025-17



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




                                    -7-
