J-S82015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SCOTT DAVID DOW

                            Appellant                 No. 448 MDA 2016


           Appeal from the Judgment of Sentence February 16, 2016
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0001440-2015


BEFORE: OTT, J., DUBOW, J., and PLATT, J.*

JUDGMENT ORDER BY OTT, J.:                      FILED NOVEMBER 22, 2016

        Scott David Dow appeals from the judgment of sentence entered on

February 16, 2016, in the Lancaster County Court of Common Pleas,

following his guilty plea to four counts of sexual abuse of children

(possession of child pornography) and one count of criminal use of a

communication facility.1 The trial court imposed an aggregate sentence of

two to five years’ imprisonment, followed by seven years’ probation.     The

court also determined Dow was subject to a lifetime registration requirement

under the Sexual Offenders Registration and Notification Act (“SORNA”), 2 as
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    See 18 Pa.C.S. §§ 6312(d) and 7512(a), respectively.
2
    42 Pa.C.S. §§ 9799.10-9799.41.
J-S82015-16



a Tier III offender because he had “[t]wo or more convictions of offenses

listed as Tier I or Tier II sexual offenses.”      42 Pa.C.S. § 9799.14(d)(16).3

On appeal, Dow argues the Pennsylvania Supreme Court’s recent decisions

in Commonwealth v. Lutz-Morrison, 143 A.3d 891 (Pa. August 15, 2016),

and A.S. v. Pennsylvania State Police, 143 A.3d 896 (Pa. August 15,

2016), establish the trial court erred in classifying him as a Tier III offender

and imposing a lifetime registration requirement. We agree.

       In   Lutz-Morrison,        the    Supreme   Court   clarified   that   Section

9799.14(d)(16) “requires an act, a conviction, and a subsequent act to

trigger lifetime registration for multiple offenses otherwise subject to a

fifteen- or twenty-five-year period of registration.” Lutz-Morrison, supra,

143 A.3d at 895 (emphasis supplied). Accord A.S., supra, 143 A.3d at 908

(applying registration requirements of Megan’s Law II). Here, the trial court

imposed the lifetime registration requirement based solely on the multiple

Tier I offenses, included in the same information, to which Dow pled guilty.

Under Lutz-Morrison, Dow’s guilty plea to multiple counts of possession of

child pornography contained in a single criminal complaint, did not subject
____________________________________________


3
 Possession of child pornography is a Tier I offense under SORNA, subject to
a 15-year registration requirement. See 42 Pa.C.S. §§ 9799.14(b)(9),
9799.15(a)(1). Because Dow pled guilty to four counts of the offense, the
court applied Section 9799.14(d)(16).

       We note that Dow was not deemed to have met the qualifications for
classification as a sexually violent predator. See N.T., 2/6/2016, at 2; 42
Pa.C.S. § 9799.24.



                                           -2-
J-S82015-16



him to a Tier III lifetime registration requirement because there was no

“subsequent act” following his conviction. Lutz-Morrison, supra, 143 A.3d

at 895.

      Therefore, we vacate Dow’s judgment of sentence in part, as to his

classification as a Tier III offender, and remand to the trial court for the

imposition      of   a   15-year   registration   requirement   under   Section

9799.15(a)(1).

      Judgment of sentence affirmed in part, and vacated in part.         Case

remanded for proceedings consistent with this judgment order. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/22/2016




                                       -3-
