J-S63009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT LEONARD SCOTT                       :
                                               :
                       Appellant               :   No. 1727 WDA 2017

            Appeal from the Judgment of Sentence October 26, 2017
                 In the Court of Common Pleas of Butler County
              Criminal Division at No(s): CP-10-CR-0002570-2016


BEFORE:      OTT, J., MURRAY, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                              FILED FEBRUARY 12, 2019

        Robert Leonard Scott appeals from the judgment of sentence imposed

October 26, 2017, in the Butler County Court of Common Pleas. The trial

court sentenced Scott to a term of three to six years’ imprisonment following

his conviction for the offense of incest.1 The court also determined Scott met

the criteria for classification as a lifetime Tier III sexual offender pursuant to

Pennsylvania’s Sexual Offender Registration and Notification Act (“SORNA”). 2

On appeal, Scott claims his lifetime sentence of SORNA registration is illegal.

For the reasons below, we affirm the judgment of sentence.

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   Former Justice specially assigned to the Superior Court.

1   See 18 Pa.C.S. § 4302(b)(2).

2   See 42 Pa.C.S. §§ 9799.10-9799.41.
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       Scott was charged with numerous crimes relating to the sexual assault

of his biological daughter in the fall of 2016. On June 23, 2017, he entered

into a negotiated guilty plea for one count of incest (second-degree felony),

which the trial court accepted. On October 26, 2017, the court sentenced

Scott to a term of three to six years’ imprisonment, followed by 48 months of

probation. On November 15, 2017, the court provided Scott with notice that

he was required to register under SORNA as a Tier III sexual offender for his

lifetime. This timely appeal followed.3

       In his sole issue on appeal, Scott claims that in light of the Pennsylvania

Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa.

2017), cert. denied, 138 S. Ct. 925 (U.S. 2018)4 the trial court imposed an

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3  On November 30, 2017, the trial court ordered Scott to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Scott filed a concise statement on December 11, 2017. The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on February 15, 2018.

4 On July 17, 2017, the Muniz Court held that SORNA’s registration provisions
constitute punishment, and, therefore, the retroactive application of those
provisions violates the ex post facto clauses of the federal and Pennsylvania
constitutions. Thereafter, on October 31, 2017, a panel of this Court, in
Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), appeal
granted, 190 A.3d 581 (Pa. 2018), recognized that “Muniz was a sea change
in the longstanding law of this Commonwealth as it determined that the
registration requirements under SORNA are not civil in nature but a criminal
punishment.” Id. at 1215. As such, the panel concluded the statutory
mechanism for designating a defendant as an SVP set forth in 42 Pa.C.S. §
9799.24(e)(3), which permits a trial court to make the determination based
upon clear and convincing evidence, was “constitutionally flawed” pursuant to
the United States Supreme Court’s decisions in Alleyne v. United States,
570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000).



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illegal sentence because his “Tier III lifetime registration requirement

pursuant to SORNA exceeds his statutory maximum sentence.” Scott’s Brief

at 13.5



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Accordingly, the Butler panel held: “[T]rial courts cannot designate convicted
defendants SVPs (nor may they hold SVP hearings) until our General Assembly
enacts a constitutional designation mechanism.” Butler, supra, 173 A.3d at
1218. Therefore, the panel vacated the order designating the defendant as
an SVP, and remanded the case to the trial court to determine his proper
registration period pursuant to 42 Pa.C.S. §§ 9799.14 and 9799.15. See id.

      We note the Pennsylvania Supreme Court granted allowance of appeal
in Butler on the issue that this Court “erred in vacating the trial court’s Order
finding [Respondent] to be [a Sexually Violent Predator (“SVP”)] by
extrapolating the decision in [Commonwealth v. Muniz, 640 Pa. 699, 164
A.3d 1189 (2017),] to declare SVP hearings and designations unconstitutional
under 42 Pa.C.S. § 9799.24(e)(3).” Commonwealth v. Butler, 190 A.3d
581, 582 (Pa. 2018). However, that specific issue is of no concern in the
present matter because Scott was not determined to be an SVP.

5   Rather than addressing Scott’s argument, the Commonwealth contends:

       The changes made to SORNA’s registration requirements under
       Act [2018-]29 (“the Act”) have rendered its requirements non-
       punitive. The General Assembly passed the Act in response to the
       Pennsylvania Supreme Court’s decision in [Muniz, supra], which
       held that SORNA’s registration requirements constitute
       punishment, and the Superior Court’s decision in [Butler, supra].
       The General Assembly declared it was their intention to address
       these decisions and to establish a non-punitive statutory scheme.
       See 42 Pa.C.S.A. § 9799.1(b).

Commonwealth’s Brief at 4 (footnote). As such, the Commonwealth maintains
Act 29 transformed SORNA from criminal to non-punitive in legal effect, and
therefore, the registration requirements are, again, a “collateral consequence”
of the underlying crime. Id. at 12. Based on our foregoing analysis, we need
not address the Commonwealth’s argument to dispose of this appeal.



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       However, a panel of this Court recently rejected the precise argument

Scott currently advances in Commonwealth v. Strafford, 194 A.3d 168 (Pa.

Super. 2018),6 which held that SORNA’s registration requirements are not

governed by the statutory maximum sentences as set forth in the Chapter 11

of the Pennsylvania Crimes Code; rather, the panel determined the two

punishments are separate and distinct. Id. at 172-173. Specifically, the panel

explained:

       [T]he General Assembly “has the exclusive power to pronounce
       which acts are crimes, to define crimes, and to fix the punishment
       for all crimes. The legislature also has the sole power to classify
       crimes[.]” Commonwealth v. Eisenberg, 626 Pa. 512, 98 A.3d
       1268, 1283 (2014) (citation and quotation omitted).

       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. § 9721.

       With respect to the punishment of incarceration, 18 Pa.C.S. §
       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. § 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

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6  “[T]he general rule in Pennsylvania is to apply the law in effect at the time
of the appellate decision.” Commonwealth v. Housman, 986 A.2d 822, 840
(Pa. 2009), cert. denied, 562 U.S. 881 (2010).


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     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
     its sentence. See, e.g., 18 Pa.C.S. § 1101 (defining maximum
     fines); 18 Pa.C.S. § 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. § 9799.14 (“Sexual offenses and tier system”); 42 Pa.C.S.
     § 9799.15 (“Period of registration”).         SORNA’s registration
     provisions are not constrained by [18 Pa.C.S.A. §] 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.

     Accordingly, we conclude that Appellant’s lifetime registration
     requirement authorized by SORNA does not constitute an illegal
     sentence. Appellant is not entitled to relief.




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Strafford, 194 A.3d at 172-173. See also Commonwealth v. Bricker,__

A.3d __, 2018 Pa. Super. LEXIS 1133, 2018 WL 5093265 [623 EDA 2018]

(Pa. Super. Oct. 19, 2018) (accord).7

       Because we find Strafford, supra, binding authority in the present

matter, we conclude Scott’s lifetime registration requirement authorized by

SORNA does not constitute an illegal sentence.8       Accordingly, Scott is not

entitled to any relief.

       Judgment of sentence affirmed.




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7  Scott notes that on January 3, 2018, the Pennsylvania Supreme Court
granted allowance of appeal on issues similar to the one he raised:

       1. Is it unconstitutional to require [Petitioner] to register for a
       lifetime when said registration requirement exceeds the statutory
       maximum penalty for [Petitioner’s] offense?

       2. Is the Adam Walsh Statute unconstitutional in requiring the
       [Petitioner] to register for a lifetime?

Commonwealth v. Brooks, 177 A.3d 822, 822-823 (Pa. 2018). At this time,
however, the Strafford decision is controlling.

8 In its Rule 1925(a) opinion, the trial court requested that we remand the
matter to afford Scott the opportunity to argue Muniz. See Trial Court
Opinion, 2/15/2018. However, we decline to do so as “[t]his Court is not
bound by the rationale of the trial court, and we may affirm the trial court on
any basis.” Commonwealth v. Williams, 73 A.3d 609, 617 n.4 (Pa. Super.
2013) (citation omitted), appeal denied, 87 A.3d 320 (Pa. 2014).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/2019




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