J-S35002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

PATRICK OKEY

                            Appellant                 No. 1157 WDA 2015


              Appeal from the Judgment of Sentence July 16, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0000601-2015


BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                              FILED JULY 31, 2017

        Patrick Okey appeals from his judgment of sentence, entered in the

Court of Common Pleas of Erie County, following his conviction for three

counts of failing to register with the Pennsylvania State Police under our

Commonwealth’s version of Megan’s Law/Sexual Offender Registration and

Notification Act.1 Okey’s counsel seeks to withdraw pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009).        Because we have identified one non-frivolous issue
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  Megan’s Law previously provided for the registration of sexual offenders
and was codified at 42 Pa.C.S.A. § 9791 et seq. Megan’s Law was replaced
with the Sexual Offender Registration and Notification Act (“SORNA”),
effective December 20, 2012. See 42 Pa.C.S.A. § 9799.10-9799.41. Okey
is now subject to registration under SORNA, even though Megan’s Law was
in effect at the time of his underlying conviction.
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which entitles Okey to sentencing relief, we deny counsel’s petition to

withdraw, affirm Okey’s convictions, vacate his judgment of sentence, and

remand for resentencing.

        Okey was required to register as a Tier 1 sex offender under Megan’s

Law following his conviction in 2009 for attempting to lure a child into a

motor vehicle.2       Prior to his release from custody3 at the State Correction

Institute in Albion, Pennsylvania (“SCI Albion”), on January 14, 2015 Okey

meet with Margaret Lucas, an employee in SCI Albion’s records department.

Lucas testified that she met with Okey to review the information necessary

for him to register as a sex offender.                Although Okey understood the

registration requirements, he refused to sign any verification relating to the

information     the    State   had    about    him,    or   to   be   photographed   or

fingerprinted, due to his believe that his underlying conviction was in error.

Under SORNA, a registrant must provide authorities with the address at

which he will reside upon release. Although Okey did provide an address, he

told Lucas the address was not the one at which he would live, and refused

to provide Lucas with that address.



____________________________________________


2
    18 Pa.C.S.A. § 2910(a).
3
   Okey has a prior conviction for failure to register under Megan’s
Law/SORNA, also stemming from his underlying conviction for attempted
luring. The instant offenses occurred as he was being released from custody
on that conviction.



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        On January 27, 2015, Corporal Mark Weindorf and Trooper Christian

Miller of the Pennsylvania State Police met with Okey at SCI Albion in an

attempt to have Okey complete his registration. Corporal Weindorf testified

that Okey’s previous conviction required Okey to register under SORNA.

Corporal    Weindorf     stated    that   Okey   had   been   provided   with   four

opportunities to register, and on each occasion, Okey refused to comply in

any way. Because of his refusal to register, Okey was charged and arrested.

        Okey represented himself at trial after waiving his right to counsel.

Okey’s argument was that the underling conviction for luring a child into a

motor vehicle was baseless and made in error, therefore, he is not subject to

SORNA’s registration requirements. On July 15, 2015, Okey filed a motion

in limine, essentially seeking to relitigate his underlying conviction.         The

motion was denied that same day. On July 16, 2015, a jury convicted Okey

of knowingly failing to register as a sex offender with the Pennsylvania State

Police,4 knowingly failing to verify his address or be photographed,5 and

knowingly failing to provide an accurate address.6            On August 27, 2015,

Okey was sentenced to 60 to 120 months’ incarceration pursuant to the



____________________________________________


4
    18 Pa.C.S. § 4915.1(a)(1)
5
    18 Pa.C.S. § 4915.1(a)(2)
6
    18 Pa.C.S. § 4915.1(a)(3)




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mandatory minimum set forth in 42 Pa.C.S.A. § 9718(2)(i).            This appeal

followed.7

       Okey filed a Pa.R.A.P. 1925(b) concise statement of errors complained

of on appeal on December 13, 2016. The trial court filed its Rule 1925(a)

opinion on January 5, 2017.           On April 21, 2017, Okey’s counsel filed a

statement of intent to file an Anders brief pursuant to Rule 1925(c)(4).

       Counsel has filed a petition to withdraw pursuant to the requirements

set forth in Anders and Santiago. Our Supreme Court in Santiago held:

       [I]n the Anders brief that accompanies court[-]appointed
       counsel’s petition to withdraw, counsel must: (1) provide a
       summary of the procedural history and facts, with citations to
       the record; (2) refer to anything in the record that counsel
       believes arguably supports the appeal; (3) set forth counsel’s
       conclusion that the appeal is frivolous; and (4) state counsel’s
       reasons for concluding the appeal is frivolous.

Santiago, 978 A.2d at 361.             Once counsel has satisfied the procedural

requirements of Santiago, this Court engages in an independent evaluation

of the record to determine if the claims on appeal are wholly frivolous.

Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005).

       Counsel’s brief satisfies the necessary procedural requirements.     Her

brief provides “a summary of the procedural history and facts, with citations
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7
  Okey originally filed his appeal prior to sentencing. However, the appeal is
deemed timely filed pursuant to Pa.R.A.P. 905(a)(5), which provides that “a
notice of appeal filed after the announcement of a determination but before
the entry of an applicable order shall be treated as filed after such entry and
on the day thereof.”



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to the record.” Santiago, 978 A.2d at 361; Brief of Appellant, at 5-6. She

further provides a review of the record, and raises the issues she believes

arguably supports an appeal.       Santiago, 978 A.2d at 360; Brief of

Appellant, at 8-10. Counsel’s brief also states her conclusion that the claims

are frivolous, and she provides her reasoning for this conclusion. Santiago,

978 A.2d at 360; Brief of Appellant, at 11-13. Lastly, counsel notified Okey

of her request to withdraw and provided him with a copy of the brief and a

letter explaining his right to retain new counsel or proceed pro se as to any

issues he believes might have merit.          Counsel having satisfied the

procedural requirements for withdrawal, we must now examine Okey’s claim

to determine if the appeal is frivolous.   Anders, 386 U.S. at 744; Rojas,

874 A.2d at 639.

      Okey raises the following issues for our review:

      A. Whether the trial court abused its discretion in denying
      [Okey’s] [m]otion in [l]imine that sought to limit the testimony
      regarding [Okey’s] prior conviction(s).

      B. Whether the Commonwealth failed to present sufficient
      evidence to find [Okey] guilty beyond a reasonable doubt for
      [f]ailure to [register] with the [Pennsylvania State Police].

      C. Whether the trial court abused its discretion in sentencing
      [Okey] and whether . . . the sentence is manifestly excessive,
      clearly unreasonable and inconsistent with the objectives of the
      Sentencing Code.

Brief of Appellant, at 4.

      Okey first claims that the trial court erred in denying his motion in

limine, in which he sought to present evidence he believed would prove that


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his underlying conviction for attempting to lure a child was in error.      Our

standard of review for determining if evidence was properly excluded is as

follows:


      The admissibility of evidence is a matter directed to the sound
      discretion of the trial court, and an appellate court may reverse
      only upon a showing that the trial court abused that discretion.
      The threshold inquiry with admission of evidence is whether the
      evidence is relevant. Evidence is relevant if it logically tends to
      establish a material fact in the case, tends to make a fact at
      issue more or less probable, or supports a reasonable inference
      or presumption regarding the existence of a material fact.

Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1998) (citations and

quotation marks omitted). In short, Okey must show that the evidence he

wished to present was relevant to a matter at issue in the present case, and

that the trial court’s finding that the evidence was irrelevant was an abuse of

its discretion.   Lewis v. Coffing Hoist Div., Duff-Norton Co., 528 A.2d

590, 592 (Pa. 1987).

      In this case, Okey was charged with three counts of failure to comply

with registration requirements 18 Pa C.S.A. § 4915.1(a)(1-3). Section 4915

provides, in relevant part:

      (a)    Offense defined. — An individual who is subject to
      registration under 42 Pa.C.S. § 9795.1(a) or (a.1) (relating to
      registration) or an individual who is subject to registration under
      42 Pa.C.S. § 9795.1(b) or who was subject to registration under
      former 42 Pa.C.S § 9793 (relating to registration of certain
      offenders for ten years) commits an offense if he knowingly fails
      to:




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              (1) register with the Pennsylvania State Police as required
              under 42 Pa.C.S. § 9795.2 (relating to registration
              procedures and applicability);

              (2) verify his residence or be photographed as required
              under 42 Pa.C.S. § 9796 (relating to verification of
              residence); or

              (3) provide accurate information when registering under
              42 Pa.C.S. § 9795.2 or verifying a residence under 42
              Pa.C.S. § 9796.

18 Pa.C.S. § 4915(a)(1-3) (bold in original).     Section 9795.2 provides, in

relevant part:

        (a) Registration.

              (1) Offenders and sexually violent predators shall be
              required to register with the Pennsylvania State Police
              upon release from incarceration, upon parole from a State
              or   county    correctional  institution  or   upon   the
              commencement of a sentence of intermediate punishment
              or probation. For purposes of registration, offenders and
              sexually violent predators shall provide the Pennsylvania
              State Police with all current or intended residences, all
              information concerning current or intended employment
              and all information concerning current or intended
              enrollment as a student.

42 Pa.C.S. § 9795.2(a)(1).

        The record clearly shows that Okey was previously convicted of a

crime that requires him to register as a sex offender with the Pennsylvania

State Police.8 Trial Court Opinion, 1/5/17, at 2; Brief of Appellant, at 5. The

facts of Okey’s previous conviction, and his attempts to relitigate them, are


____________________________________________


8
    42 Pa. C.S.A. § 9795.1



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completely irrelevant to whether Okey failed to meet his registration

obligations under section 4915.                As such, the evidence was properly

excluded.    See Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008)

(holding that exclusion of out of court statements made by unrelated party

was     proper    when     statements      were     irrelevant   in   finding   whether

discriminatory intent existed).        Moreover, Okey cannot use this appeal to

make a collateral attack on his 2008 conviction. Any collateral attack on an

underlying conviction must be raised in a petition pursuant to the Post

Conviction Relief Act,9 which provides the sole means for obtaining collateral

review of a judgment of sentence.              Commonwealth v. Infante, 63 A.3d

358, 365 (Pa. Super. 2013). Accordingly, we find that the trial court did not

abuse its discretion in denying Okey’s motion in limine and Okey’s claim to

be without merit.

        Okey next asserts that there was insufficient evidence to support his

conviction. Our standard of review upon a challenge to the sufficiency of the

evidence is well settled:

        The standard we apply in reviewing the sufficiency of the
        evidence is whether viewing all the evidence admitted at trial in
        the light most favorable to the verdict winner, there is sufficient
        evidence to enable the fact-finder to find every element of the
        crime beyond a reasonable doubt. In applying [the above] test,
        we may not weigh the evidence and substitute our judgment for
        the fact-finder.   In addition, we note that the facts and
        circumstances established by the Commonwealth need not
____________________________________________


9
    42 Pa.C.S.A. §§ 9541-9546.



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      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.          Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      trier of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001),

quoting Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super.

2000) (citations and quotation marks omitted).

      In this case, the jury convicted Okey of three section 4915.1

violations:    (1) knowingly failing to register as a sex offender with the

Pennsylvania State Police; (2) knowingly failing to verify his address or be

photographed; and (3) knowingly failing to provide an accurate address. 18

Pa.C.S.A. § 4915.1(a)(1-3). In order to convict Okey of these crimes, the

jury must have determined that Okey was subject to registration, and failed

to comply with section 4915.1(a)(1-3).       Additionally, the jury must have

determined that Okey acted knowingly. “Knowingly” is defined in our Crimes

Code as follows:

      (2) A person acts knowingly with respect to a material element
      of an offense when:

              (i) if the element involves the nature of his conduct or the
              attendant circumstances, he is aware that his conduct is of
              that nature or that such circumstances exist.




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18 Pa.C.S. § 302(b)(2)(i). Our Court has interpreted this provision to mean

that “a person ‘knows’ . . . if he is ‘aware’ of [a] fact.” Commonwealth v.

Robinson, 128 A.3d 261, 265 (Pa. Super. 2015), citing 18 Pa.C.S.A. §

302(b)(2)(i).

       Upon review of the record and viewing all evidence in a light most

favorable to the Commonwealth, Distefano, supra, we find that there was

sufficient evidence to support a finding that Okey knowingly failed to comply

with his SORNA requirements. Testimony from Corporal Weindorf indicated

that Okey had been convicted of a crime that required him to comply with

SORNA. Lucas and Corporal Weindorf both testified that Okey was aware of

his SORNA requirements, yet refused to comply with any of them. The only

action Okey took to comply with his obligations was providing Lucas with an

inaccurate address. Accordingly, this claim is meritless.

       Finally, Okey argues that the trial court abused its discretion in

imposing his sentence.            However, this claim is moot, as our own

independent review of the record reveals that Okey was illegally sentenced

under section 9718.4.10

       At the time of Okey’s sentencing, our decision in Commonwealth v.

Pennybaker, 121 A.3d 530, 534 (Pa. Super. 2015), held that application of
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10
    While neither the trial court nor the parties have raised this issue, “[a]n
illegal sentence can never be waived and may be reviewed sue sponte by
this Court.” Commonwealth v. Archer, 722 A.2d 203, 209 (Pa. Super.
1998).



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mandatory minimum statutes was constitutional when sentencing for failure

to register under SORNA.         However, on allowance of appeal, the Supreme

Court of Pennsylvania vacated and remanded to the trial court for

resentencing without application of the mandatory minimum, in light of its

recent decisions in Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016),

and Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015).                     See

Commonwealth v. Pennybaker, 145 A.3d 720, (Pa. 2016) (per curiam).

Our recent decision in Commonwealth v. Blakney, 152 A.3d 1053 (Pa.

Super. 2016), held all of section 9718.4 unconstitutional under Alleyne v.

United States, 133 S. Ct. 2151 (2013),11 as violating the right to trial by

jury.   Consequently, Okey’s mandatory minimum sentence under section

9718.4 must be vacated.             Accordingly, we deny counsel’s petition to

withdraw, and remand for resentencing, without consideration of the

mandatory minimum set forth in section 9718.4. Because this issue involves

a question of law and our review of the record is complete, we decline to

remand for the preparation of an advocate’s brief. See Commonwealth v.

Mitchell, 986 A.2d 1241, 1244 (Pa. Super. 2009) (remanding Anders

appeal for resentencing when court imposed illegal sentence, without first

requiring advocate’s brief).


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11
  In Alleyne, the Supreme Court held that “facts that increase mandatory
minimum sentences must be submitted to the jury” and found beyond a
reasonable doubt. Alleyne, 133 S. Ct. at 2163.



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     In conclusion, we find Okey’s claims of abuse of discretion by the trial

court and insufficiency of the evidence to be meritless.    Because of our

recent decision in Blakney, we find his sentence under section 9718.4 to be

illegal, and remand the case for resentencing.      Consequently, counsel’s

Anders motion is denied.

     Convictions affirmed.    Judgment of sentence vacated.       Motion to

withdraw denied. Case remanded for resentencing without consideration of

the mandatory minimum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/31/2017




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