J-S62024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEVIN MICHAEL O’CONNELL                    :
                                               :
                       Appellant               :   No. 543 WDA 2019


     Appeal from the Judgment of Sentence Entered, November 19, 2018,
              in the Court of Common Pleas of Somerset County,
            Criminal Division at No(s): CP-56-CR-0000861-2017.

BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                        FILED FEBRUARY 14, 2020

       Kevin Michael O’Connell appeals from the judgment of sentence imposed

following the entry of his guilty plea to one count each of invasion of privacy

and disorderly conduct.1 We affirm.

       In 2017, O’Connell entered the middle stall in the women’s restroom at

the Somerset County library. When a female library employee subsequently

entered the adjacent stall, O’Connell slid a cell phone under the partition wall

in an attempt to record the female employee while she undressed and used

the toilet. The employee noticed the cell phone, and when she looked under

the wall, she observed the feet of an individual wearing ladies’ ankle boots

and fishnet stockings. The employee left the restroom and contacted another

____________________________________________


1 See 18 Pa.C.S.A. §§ 7507.1(a)(1), 5503(a)(4).       Both of O’Connell’s
convictions were graded as a third-degree misdemeanor.
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female library employee, who then entered the women’s restroom. She asked

the individual in the middle stall if they needed assistance. When she received

no response, she looked through the sides of the stall door, and recognized

O’Connell, who had patronized the library in the past. The library employees

then contacted police.       However, before police arrived, O’Connell fled the

facility.

       O’Connell was later arrested and charged with multiple offenses. On

July 17, 2018, he pleaded guilty to one count each of invasion of privacy and

disorderly conduct. On November 19, 2018, the trial court sentenced him to

an aggregate term of six months to one year of incarceration. The trial court

additionally notified O’Connell of a fifteen year registration requirement under

the Sexual Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.A.

§ 9799.10 et seq., because his conviction for invasion of privacy was

enumerated as a Tier I offense.2 See 42 Pa.C.S.A. §§ 9799.14, 9799.15. At

sentencing, O’Connell acknowledged that his conviction for invasion of privacy

constituted a Tier I offense, and signed a notification form stating that he

understood his fifteen-year registration requirement under SORNA.

       O’Connell filed a timely post-sentence motion challenging the length of

the SORNA registration requirement.            On March 14, 2019, the trial court


____________________________________________


2 Prior to sentencing, the trial court ordered that O’Connell be assessed by the
Sexual Offenders Assessment Board to determine whether he is a sexually
violent predator (“SVP”). However, at sentencing, the trial court made no
determination as to whether O’Connell is an SVP.

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denied the motion. O’Connell filed a timely notice of appeal. Both O’Connell

and the trial court complied with Pa.R.A.P. 1925.

       O’Connell raises the following issue for our review: “Whether the trial

court erred in denying [O’Connell’s] post-sentence motion to limit [his] SORNA

registration to a duration of two (2) years?”                    O’Connell’s Brief at 3

(unnecessary capitalization omitted).

       O’Connell     challenges     the    legality   of   his    sentence   based   on

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (holding that SORNA’s

enhanced registration requirements are punitive and, therefore, applying

SORNA retroactively is a violation of the ex post facto clauses of the U.S.

Constitution and Pennsylvania Constitutions), and Commonwealth v.

Butler, 173 A.3d 1212 (Pa. Super. 2017) (holding that trial courts no longer

can designate convicted defendants as SVP until our General Assembly enacts

a constitutional designation mechanism).3              We review the legality of a

sentence de novo, and our scope of review is plenary. Commonwealth v.

Strafford, 194 A.3d 168, 172 (Pa. Super. 2018).

       O’Connell argues that his fifteen year sexual offender registration

requirement under SORNA is illegal because it exceeds the lawful statutory


____________________________________________


3Notably, no retroactive application of SORNA was made in this case, nor was
any SVP designation made in relation to O’Connell. Thus, we fail to see how
Muniz or Butler applies to his illegal sentencing claim.




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maximum sentences applicable to his third-degree misdemeanor convictions.4

However, O’Connell concedes that, in Strafford, this Court addressed the

specific issue he now raises, and found it to be without merit.           As the

Strafford Court explained,

             Our General Assembly has authorized courts to impose
       specific punishments when fashioning a sentence, and specified
       maximum terms and amounts of those punishments. These
       categories of punishment include (1) partial or total confinement,
       (2) probation, (3) state or county intermediate punishment, (4) a
       determination of guilt without further penalty, and (5) a fine. 42
       Pa.C.S.[A.] § 9721.

             With respect to the punishment of incarceration, 18
       Pa.C.S.[A.] § 1103 governs the maximum authorized sentence of
       imprisonment for felony convictions. By a separate statute, these
       maximum allowable terms also apply to probationary sentences,
       a different category of punishment authorized by the General
       Assembly. In 42 Pa.C.S.[A.] § 9754(a), the legislature directed
       that “[i]n imposing an order of probation the court shall specify at
       the time of sentencing the length of any term during which the
       defendant is to be supervised, which term may not exceed the
       maximum term for which the defendant could be confined, and
       the authority that shall conduct the supervision.” Id. (emphasis
       added). Thus, the legislature explicitly connected the authorized
       punishments of incarceration and probation by statute.

              However, most sentencing alternatives are not tied to the
       maximum authorized term of incarceration. For example, the
       legislature has authorized courts to include in sentences the
       requirement that a defendant pay a fine or restitution. These
       categories of punishment are not limited by the maximum period
       of incarceration; rather, the legislature set different maximum
       authorized amounts of punishment a court may impose as part of
____________________________________________


4 O’Connell argues that the fifteen year SORNA registration requirement
exceeds the statutory maximum sentence applicable to both of his
misdemeanor convictions. However, O’Connell is a Tier I offender based solely
on his conviction for invasion of privacy. SORNA is not implicated by
O’Connell’s conviction for disorderly conduct.

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      its sentence.    See, e.g., 18 Pa.C.S.[A.] § 1101 (defining
      maximum fines); 18 Pa.C.S.[A.] § 1106 (providing statutory
      scheme for restitution for injuries to person or property).

            In SORNA the legislature authorized courts to include
      periods of registration as part of a sentence. Similar to the
      treatment of the payment of fines or restitution, the legislature
      did not tie the period of registration to the length of incarceration.
      See 42 Pa.C.S.[A.] § 9799.14 (“Sexual offenses and tier
      system”); 42 Pa.C.S.[A.] § 9799.15 (“Period of registration”).
      SORNA’s registration provisions are not constrained by Section
      1103.      Rather, SORNA’s registration requirements are an
      authorized punitive measure separate and apart from Appellant’s
      term of incarceration. The legislature did not limit the authority
      of a court to impose registration requirements only within the
      maximum allowable term of incarceration; in fact, the legislature
      mandated the opposite and required courts to impose registration
      requirements in excess of the maximum allowable term of
      incarceration.

Strafford, 194 A.3d 172-73.

      More recently, in Commonwealth v. Martin, 205 A.3d 1247, 1252 (Pa.

Super. 2019), this Court concluded that a fifteen year SORNA registration

requirement did not constitute an illegal sentence. In so ruling, this Court

explained that SORNA’s registration requirements are not governed by the

statutory maximum sentences set forth in Chapter 11 of the Crimes Code, and

that SORNA independently authorized the registration of sexual offenders,

even though 42 Pa.C.S.A. § 9721 does not include registration as a sentencing

alternative.   Martin, 205 A.3d at 1250-51; see also Commonwealth v.

Bricker, 198 A.3d 371 (Pa. Super. 2018) (requirement that defendant

register as sexual offender for twenty-five years pursuant to SORNA based on

his conviction for unlawful contact with minor not illegal notwithstanding


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argument that sentence exceeded statutory maximum penalty of seven

years).

      Here, the trial court classified O’Connell as a Tier I offender based on

his conviction for invasion of privacy. The court was authorized to impose a

fifteen year registration requirement as part of O’Connell’s sentence.   See

Martin, 205 A.3d at 1251.      In so doing, the court was not limited by the

statutory maximum established for the underlying offense of invasion of

privacy.   See id.   Accordingly, we conclude that O’Connell’s fifteen year

registration requirement authorized by SORNA does not constitute an illegal

sentence, and he is not entitled to relief.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/2020




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