J-S22011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    CHRISTOPHER ZAYAS,

                             Appellant                No. 1158 EDA 2017


       Appeal from the Judgment of Sentence Entered November 7, 2016
             In the Court of Common Pleas of Philadelphia County
                          Criminal Division at No(s):
                           CP-51-CR-0010608-2015
                           CP-51-CR-0013259-2013


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                           FILED JUNE 25, 2018

        Appellant, Christopher Zayas, appeals from the judgment of sentence

entered in two cases that were consolidated for trial, CP-51-CR-0013259-2013

(hereinafter, “case 3259-2013”) and CP-51-CR-0010608-2015 (hereinafter,

“case 0608-2015”). After careful review, we quash the appeal filed in 3259-

2013 and affirm Appellant’s judgment of sentence in case 0608-2015.

        The facts of Appellant’s underlying convictions are not pertinent to our

disposition of his present appeal. The trial court summarized the procedural

history of Appellant’s cases, as follows:

             On November 7, 2016, [Appellant] … pled nolo contendere,
        pursuant to a negotiated plea agreement, to charges in two
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     consolidated cases. At Docket No. … 3259-2013, [Appellant] pled
     to one count each of rape of a child (18 Pa.C.S. § 3121(c)) and
     corrupting the morals of a minor (18 Pa.C.S. § 6301(a)(1)(ii)),
     regarding [one] victim…. At Docket No. … 0608-2015, [Appellant]
     pled to one count of involuntary deviate sexual intercourse with a
     child (18 Pa.C.S. § 3123(b)), regarding [a second] victim…. That
     same day, the [c]ourt imposed the negotiated aggregate sentence
     of eleven and a half to twenty-three months[’] incarceration in
     county prison followed by ten years of reporting probation. Per
     the plea agreement, the Commonwealth waived an evaluation of
     defendant by the Sexual Offenders Assessment Board and
     stipulated that defendant was not a sexually violent predator. The
     parties also stipulated that under the Sex Offender Registration
     and Notification Act (“SORNA”), [Appellant] was subject to lifetime
     sex offender reporting.2
        2 Prior to the enactment of SORNA, Pennsylvania’s sex
        offender registration statute was commonly referred to as
        “Megan’s Law.”      See, e.g., Commonwealth v. Lutz-
        Morrison, 143 A.3d 891, 892 (Pa. 2016). It is still common
        practice to refer to the sex offender registration statute as
        “Megan’s Law” rather than “SORNA,” which was done during
        the hearing in the case at bar. See N.T.[,] 11/7/2016[,] at
        16, 27-28.

       [Appellant] filed a post-sentence motion in each case. On
     March 6, 2017, the [c]ourt denied the motion filed at Docket No.
     … 3259-2013, and on March 13, 2017, the [c]ourt denied the
     motion filed at Docket No. … 0608-2015.

Trial Court Opinion (TCO), 6/29/17, at 1-2 (some footnotes omitted).

     Appellant filed a notice of appeal with this Court on April 7, 2017, which

was 25 days after his post-sentence motion was denied in case 0608-2015,

and 33 days after his post-sentence motion was denied in case 3259-2013.

On April 17, 2017, this Court issued a rule to show cause why his appeal in

case 3259-2013 should not be quashed as untimely.         On April 26, 2017,

Appellant filed a response, arguing that this Court should overlook the

untimeliness of his appeal in case 3259-2013 because the issue he seeks to


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raise in that case is identical to the claim being asserted in his timely-filed

appeal in case 0608-2013. He also noted that the Commonwealth would not

be prejudiced by having both appeals proceed together. Appellant cited no

legal authority to demonstrate that this Court may overlook the untimeliness

of his appeal for these reasons.

      On May 16, 2017, our Court issued an order discharging the rule to show

cause and referring the question of the timeliness of Appellant’s appeal to this

panel. Thereafter, Appellant filed his brief with this Court, in which he does

not present any argument regarding the timeliness question. Nevertheless,

we must address that issue sua sponte, as it implicates our jurisdiction to

decide Appellant’s appeal in case 3259-2013.         See Commonwealth v.

Williams, 106 A.3d 583, 587 (Pa. 2016) (“The timeliness of an appeal and

compliance with the statutory provisions granting the right to appeal implicate

an appellate court’s jurisdiction and its competency to act.”) (citations

omitted). “Absent extraordinary circumstances, an appellate court lacks the

power to enlarge or extend the time provided by statute for taking an appeal.”

Id. (citing, inter alia, Pa.R.A.P. 105).     Additionally, where, as here, a

defendant files a timely post-sentence motion, the notice of appeal must be

filed “within 30 days of the entry of the order deciding the motion[.]”

Pa.R.Crim.P. 720(A)(2)(a).

      Appellant’s notice of appeal in case 3259-2013 was filed 33 days after

the order denying his post-sentence motion.        Again, Appellant offers no

argument or supporting legal authority to demonstrate that there are

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‘extraordinary circumstances’ in case 3259-2013 that would permit us to

extend the time-period for filing his appeal. Thus, we quash Appellant’s appeal

in case 3259-2013.

        In case 0608-2015, Appellant presents a single issue for our review:

“Did the lower court err in denying [Appellant’s] Motion to Reconsider the

‘Megan’s Law’ component of his sentence without a hearing?” Appellant’s Brief

at 4.     Essentially, Appellant complains that the trial court should have

reconsidered the lifetime registration requirement imposed in this case.

        In the trial court’s opinion, it explains why it declined to reconsider this

portion of Appellant’s sentence, stating:

              The registration and reporting requirements of SORNA are
        entirely determined by statute, and are not within the discretion
        of the sentencing judge. In particular, SORNA created a three-
        tier system for classifying sexually violent offenses, along with
        registration and reporting requirements for each tier. For anyone
        convicted of a Tier III offense, the statute mandates lifetime
        registration and reporting. The Tier III offenses include rape and
        involuntary deviant [sic] sexual intercourse. 42 Pa.C.S. §§
        9799.14, 9799.15(a)(3); Commonwealth v. Lutz-Morrison,
        143 A.3d 891, 892-[]93 (Pa. 2016). Because [Appellant] pled
        nolo contendere to both rape and involuntary deviate sexual
        intercourse, SORNA required that he be subject to lifetime
        reporting and registration. The [c]ourt had no authority to change
        that portion of the sentence. Therefore, [Appellant’s] claim that
        the [c]ourt erred by not “reconsidering” the reporting and
        registration requirements that resulted from his plea is frivolous.

TCO at 3.

        Appellant’s entire response to the trial court’s position consists of the

following:




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            But had the [c]ourt convened a hearing on the motion, other
      alternatives to resentencing if not possibly vacating the nolo
      contendere pleas[] could have been potentially explored,
      especially since [Appellant] only became aware of the SORNA
      requirement on the day he was set to go to trial, and it is these
      requirements that have severely impacted his ability to have
      custody over his children upon his release from jail in the instant
      case.1
         1 Candor to the Court requires disclosure of the fact that []
         [A]ppellant has since been found to be in technical violation
         of the probationary sentences imposed in this case and was
         resentenced to a term of incarceration, accordingly.

Appellant’s Brief at 6.

      Appellant’s undeveloped and legally unsupported argument fails to

demonstrate any error by the trial court, which did not have the discretion to

disregard SORNA’s registration requirements.        We also point out that

Appellant did not request to withdraw his nolo contendere plea in his post-

sentence motion.     Thus, his suggestion that such an outcome could have

occurred at a hearing on that motion is meritless.     Accordingly, we affirm

Appellant’s judgment of sentence in case 0608-2015.

      Appeal quashed in case CP-51-CR-0013259-2013.              Judgment of

sentence affirmed in case CP-51-CR-0010608-2015. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/18



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