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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                 :     IN THE SUPERIOR COURT OF
                                              :          PENNSYLVANIA
                              Appellee        :
                                              :
                    v.                        :
                                              :
                                              :
RONALD BURWELL III,                           :
                                              :
                              Appellant       :     No. 836 WDA 2014


               Appeal from the Judgment of Sentence May 6, 2014
                 In the Court of Common Pleas of Fayette County
                Criminal Division No(s).: CP-26-CR-0001746-2013

BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED DECEMBER 11, 2014

        Appellant, Ronald Burwell, III, appeals from the judgment of sentence

entered in the Fayette County Court of Common Pleas.               He avers the

requirement for him to register for a lifetime under the Pennsylvania Sexual

Offender Registration and Notification Act1 (“SORNA”) is unconstitutional

because the statutory maximum sentence for his offense, aggravated

indecent     assault,2   is    ten   years.   Pursuant   to   Commonwealth   v.

McDonough, 96 A.3d 1067 (Pa. Super. 2014), we affirm.

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9799.10-9799.41.
2
    18 Pa.C.S. § 3125(a)(8).
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        On January 30, 2014, for acts involving a complainant less than

thirteen years of age, Appellant pleaded guilty to aggravated indecent

assault, statutory sexual assault, indecent assault, and corruption of

minors.3    On May 6, 2014, the trial court imposed a sentence of 3½ to 7

years’ imprisonment for aggravated indecent assault.4          The court found

Appellant was not a sexually violent predator, but ordered him to comply

with lifetime registration under Section 9799.23 of SORNA. Appellant filed a

timely post-sentence motion, which the court denied. Appellant then took

this timely appeal and complied with the court’s order to file a Pa.R.A.P.

1925(b) statement.

        On appeal, Appellant presents two overlapping issues for our review,

which we address together.         First, he argues his lifetime registration

requirement is illegal and unconstitutional because the statutory maximum

sentence for aggravated indecent assault is ten years’ imprisonment.

Appellant also states, “It has been previously suggested that the registration

requirements of SORNA and previously the various versions of Megan’s Law,

are actually civil penalties.” Appellant’s Brief at 10. He reasons, “[I]f that is

actually the case, then the court should not be imposing the requirements at

the time of sentencing,” because the restrictions “can also result in criminal

3
    18 Pa.C.S. §§ 3122.1(b), 3126(a)(7), 6301(a)(1)(ii).
4
  The trial court stated the sentence was in the aggravated range and
consistent with the parties’ guilty plea agreement. Amended Sentence
Order, 5/6/14, at ¶ 20.



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penalties . . . if the defendant does not comply with the restrictions and

requirements.” Id. Appellant then relies on Commonwealth v. Williams,

832 A.2d 962 (Pa. 2003), for the proposition that “penalties for lifetime

registration with . . . potential for lifetime imprisonment[ ] were manifestly

in excess of what was needed to ensure compliance.”        Appellant’s Brief at

11. In his second issue, Appellant avers SORNA is unconstitutional because

“the requirements for registration and classification of offenses into tiers are

not in line with what is required to accomplish rehabilitation” and

“constitute[ ] unusual punishment.” Id. at 12. We find no relief is due.

      We find the Superior Court’s recent decision in McDonough, 96 A.3d

1067, controls our analysis.   Preliminarily, we note that McDonough was

issued on July 21, 2014, approximately three weeks after the trial court filed

its opinion, but prior to Appellant’s filing of his appellate brief. Appellant’s

attorney, Michael J. Garofalo, Esq. (“Counsel”) of the Fayette County Public

Defender’s Office,5 was also the attorney for the defendant/appellant in

McDonough. Counsel now raises issues identical to those in McDonough—

which this Court rejected—yet makes no mention of the McDonough

decision. We remind Counsel that the argument in an appellate brief shall




5
 Counsel represented Appellant at the plea hearing as well as in the instant
appeal.




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include “discussion and citation of authorities as are deemed pertinent.”6

See Pa.R.A.P. 2119(a).

     We now review the McDonough decision. This Court summarized,

            On December 20, 2011, the legislature replaced
        Megan's Law with SORNA, effective December 20, 2012, to
        strengthen registration requirements for sex offenders and
        to bring Pennsylvania into compliance with the Adam
        Walsh Child Protection and Safety Act, 42 U.S.C.A. §
        16901[.] Section 9799.14 of SORNA establishes a three-
        tiered system of specifically enumerated offenses requiring
        registration for sexual offenders for differing lengths of
        time.     Pursuant to section 9799.15(a)(1), a person
        convicted of a Tier I offense . . . must register for 15
        years. A Tier II offender must register for 25 years, while
        a Tier III offender must register for the remainder of his or
        her life. 42 Pa.C.S. § 9799.15(a)(2), (a)(3).

McDonough, 96 A.3d at 1070 (some citations omitted).

     In McDonough, the defendant, who was not found to be a sexually

violent predator, was convicted of a “Tier I” offense and ordered to register

for fifteen years. Id. at 1068, 1070, 1071. On appeal, he argued,

        [I]t is unconstitutional and illegal to require an individual
        to register as a sex offender for 15 years for a crime that
        carries a maximum penalty of only two years in prison[
        and] that the registration requirements of SORNA and its
        predecessor statute, Megan's Law,[ ] are not civil in nature
        because they impose restrictions and requirements which,
        if violated, can result in imprisonment.

Id. at 1070.   The defendant also relied on Williams, 832 A.2d 962, “to

6
  Although the defendant in McDonough sought allowance for appeal with
our Supreme Court on July 31, 2014, we a Superior Court “decision remains
binding precedent as long as the decision had not been overturned by our
Supreme Court.” See In re S.T.S., 76 A.3d 24, 44 (Pa. Super. 2013),
appeal denied, 91 A.3d 163 (Pa. 2014).



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support his argument that requiring an individual to register for many years

longer than the maximum penalty of the crime itself is excessive and the

registration provisions should be struck down as unconstitutional punishment

under the state and federal constitutions.” McDonough, 96 A.3d at 1070.

     This Court disagreed. We first noted,

        In Williams, our Supreme Court was asked to decide
        whether certain provisions of Megan's Law II were
        constitutional as it applied to sexually violent predators
        (SVP's). The Williams Court specifically held that the
        registration, notification, and counseling provisions of
        Megan's Law II, to offenders deemed to be SVP's, were
        non-punitive, regulatory measures supporting a legitimate
        governmental purpose. However, the Court did find that
        the prescribed penalties that attach to SVP's for failure to
        register and verify their residence were unconstitutionally
        punitive and, therefore, invalidated those provisions.

McDonough, 96 A.3d at 1070-71 (citations omitted).          This Court then

considered the Pennsylvania Supreme Court’s discussion in Commonwealth

v. Gaffney, 733 A.2d 616 (Pa. 1999):

        Because we do not view the registration requirements as
        punitive but, rather, remedial, we do not perceive
        mandating compliance by offenders who have served
        their maximum term to be improper. Furthermore, the
        fact that an offender may be held until such information is
        furnished is no different from confining someone in a civil
        contempt proceeding. While any imprisonment, of course,
        has punitive and deterrent effects, it must be viewed as
        remedial if release is conditioned upon one's willingness to
        comply with a particular mandate.

McDonough, 96 A.3d at 1077 (quoting Gaffney, 733 A.2d at 622).          The

McDonough court also referred to Commonwealth v. Benner, 853 A.2d

1068 (Pa. Super. 2004):


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          The registration provisions of Megan's Law do not
          constitute criminal punishment.         The registration
          requirement is properly characterized as a collateral
          consequence of the defendant's plea, as it cannot be
          considered to have a definite, immediate and largely
          automatic effect on a defendant's punishment.

                                   *     *   *

          Because the registration requirements under Megan's Law
          impose only collateral consequences of the actual
          sentence, their application is not limited by the factors that
          control the imposition of sentence. T hus, while a
          defendant may be subject to conviction only under
          statutes in effect on the date of his acts, and sentence
          configuration under the guidelines in effect on that same
          date, the application of the registration requirements
          under Megan's Law is not so limited. This is so due to the
          collateral nature of the registration requirement.

McDonough, 96 A.3d at 1071 (quoting Benner, 853 A.2d at 1070-71).

The McDonough Court then held: “While Gaffney and Benner were

decided prior to the effective date of SORNA, the same principles behind the

registration requirements for sexual offenders under Megan's Law apply to

those subject to SORNA.           Namely, to effectuate, through remedial

legislation, the non-punitive goal of public safety.” McDonough, 96 A.3d at

1071.     The court thus rejected the defendant’s claim that SORNA was

unconstitutional. Id.

        As stated above, Appellant advances identical arguments in the case

sub judice. We find McDonough is directly on point and accordingly find no

relief due on his claim.

        Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/11/2014




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