J-S82011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVID MANNING STODGHILL

                            Appellant                 No. 159 MDA 2016


                 Appeal from the Order Entered January 7, 2016
              In the Court of Common Pleas of Cumberland County
              Criminal Division at No(s): CP-21-CR-0002465-2010


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

MEMORANDUM BY OTT, J.:                           FILED FEBRUARY 09, 2017

        David Manning Stodghill appeals, pro se, from the order entered

January 7, 2016, in the Cumberland County Court of Common Pleas, that

denied his motion seeking to confirm he is not required to register as a sex

offender under the Sexual Offenders Registration and Notification Act

(“SORNA”)1 for his 2010 conviction of indecent assault, graded as a second-

degree misdemeanor, and corruption of minors.2 On appeal, he argues the

trial court erred in denying his motion because his conviction is not a

sexually violent offense under SORNA, and therefore, he should not be
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9799.10-9799.41.
2
    See 18 Pa.C.S. §§ 3126(a)(8) and 6301, respectively.
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subject to the registration requirements. For the reasons below, we affirm

in part and reverse in part.

       The relevant facts and procedural history underlying this appeal are as

follows. On November 10, 2010, Stodghill entered a global guilty plea in two

separate cases: (1) at Docket No. 801-2010, he pled guilty to one count of

aggravated indecent assault,3 and (2) at Docket No. 2465-2010, he pled

guilty to one count each of indecent assault, graded as a second-degree

misdemeanor, and corruption of minors. Prior to sentencing, the trial court

directed Stodghill to undergo an assessment by the Sexual Offender’s

Assessment Board to determine whether he was a sexually violent predator

under the now-repealed Megan’s Law.4             At his May 11, 2011, sentencing

hearing, Stodghill stipulated to the Board’s assessment that he met the

criteria for classification as a sexually violent predator.           See N.T.,

5/11/2011, at 2. Thereafter, the trial court imposed the following sentence:

(1) at Docket No. 801-2010, on the count of aggravated indecent assault, a

term of four to eight years’ imprisonment, and (2) at Docket No. 2465-2010,

two concurrent terms of one to two years’ imprisonment for the charges of

____________________________________________


3
  See 18 Pa.C.S. § 3125(a)(8). We note that Stodghill’s conviction at
Docket No. 801-2010 is not at issue in this appeal.
4
  See 42 Pa.C.S. § 9795.4 (repealed). Effective December 20, 2012,
Megan’s Law was replaced by the Sexual Offenders Registration and
Notification Act (“SORNA”).   See 42 Pa.C.S. §§ 9799.10-9799.41 (as
amended 2011, Dec. 20, P.L. 446, No. 111, § 12).



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indecent assault and corruption of minors. Further, the court directed that

Stodghill comply with the lifetime registration requirements of Megan’s law

as a condition of his sentences at both dockets. See id. at 13.

          Stodghill did not file a direct appeal. However, on May 21, 2012, he

filed a timely, pro se PCRA petition at Docket No. 2465-2010. Counsel was

appointed, and following an evidentiary hearing, the PCRA court denied

relief.     A panel of this Court subsequently dismissed his appeal after

determining he was no longer serving a sentence as required by 42 Pa.C.S.

§ 9543(a)(1).       See Commonwealth v. Stodghill, 96 A.3d 1092 (Pa.

Super. 2014) (unpublished memorandum).

          Thereafter, on September 2, 2015, Stodghill filed a pro se motion to

confirm that he is not required to register as a sex offender under SORNA for

his convictions of indecent assault and corruption of minors at Docket No.

2465-2010.       See Motion, 9/2/2015.         On January 7, 2016, the trial court

entered an order denying the motion, noting Stodghill was subject to a

lifetime registration requirement based upon his designation as a sexually

violent predator for the crimes at both Docket Nos. 2465-2010 and 801-

2010. This timely appeal followed.5
____________________________________________


5
  On January 27, 2016, the trial court ordered Stodghill to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Stodghill complied with the court’s directive and filed a concise statement on
February 22, 2016. Although it appears Stodghill’s statement was filed late,
we note that the court did not file the order until January 28, 2016.
Therefore, Stodghill had 21 days from that date, or until February 17, 2016,
(Footnote Continued Next Page)


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      On appeal, Stodghill claims he is not required to register under SORNA

for either of his convictions at Docket No. 2465-2010, since, pursuant to

Section 9799.13(3.1)(ii), neither indecent assault, graded as a second-

degree misdemeanor, nor corruption of minors, is a sexually violent offense.

See Stodghill’s Brief at 11.          Because his argument concerns the proper

interpretation of a statute, “our standard of review is de novo and our scope

of review is plenary.” Commonwealth v. Bundy, 96 A.3d 390 (Pa. Super.

2014).

      The provisions of SORNA applicable to the issue on appeal are codified

in Section 9799.13, which provides, in relevant part:

      The following individuals shall register with the Pennsylvania
      State Police as provided in sections 9799.15 (relating to period
      of registration), 9799.19 (relating to initial registration) and
      9799.25 (relating to verification by sexual offenders and
      Pennsylvania State Police) and otherwise comply with the
      provisions of this subchapter:

                                          ****

      (2) An individual who, on or after the effective date of this
      section, is, as a result of a conviction for a sexually violent
      offense, an inmate in a State or county correctional institution of
      this Commonwealth, including a community corrections center or
      a community contract facility, is being supervised by the
      Pennsylvania Board of Probation and Parole or county
                       _______________________
(Footnote Continued)

to file a timely statement. Although Stodghill’s statement is time-stamped
February 22, 2016, Stodghill noted that the statement was deposited in the
prison mail on February 13, 2016. Accordingly, pursuant to the prisoner
mailbox rule, we conclude his statement was timely filed.              See
Commonwealth v. Robinson, 12 A.3d 477, 479 n.2 (Pa. Super. 2011).



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     probation or parole, is subject to a sentence of intermediate
     punishment or has supervision transferred pursuant to the
     Interstate Compact for Adult Supervision in accordance with
     section 9799.19(g).

                                    ****

     (3.1) The following:

        (i) An individual who between January 23, 2005, and
        December 19, 2012, was:

              (A) convicted of a sexually violent offense;

              (B) released from a period of incarceration
              resulting from a conviction for a sexually violent
              offense; or

              (C) under the supervision of the Pennsylvania
              Board of Probation and Parole or county
              probation or parole as a result of a conviction for a
              sexually violent offense.

        (ii) For purposes of this paragraph, the term “sexually
        violent offense” shall have the meaning set forth in section
        9799.12 (relating to definitions), except that it shall not
        include:

              (A) Convictions:

                 (I) Under the following provisions of 18
                 Pa.C.S. (relating to crimes and offenses): …

                 Section 6301 (relating to corruption of
                 minors).

                                    ****

              (B) A conviction under 18 Pa.C.S. § 3126
              (relating to indecent assault) where the
              crime is graded as a misdemeanor of the
              second degree or where the conviction occurred
              between January 22, 2006, and January 1, 2007,
              when the crime is graded as a felony of the third
              degree.



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42 Pa.C.S. § 9799.13(2), (3.1) (emphasis supplied).            We note that

paragraph (2) was enacted as part of the original SORNA legislation on

December 20, 2011, with an effective date of December 20, 2012.          See

2011, Dec. 20, P.L. 446, No. 111, § 12.6         However, Paragraph (3.1) was

added later, in March 2014, with a retroactive effective date of December

20, 2012. See 2014, March 14, P.L. 41, No. 19, § 3.

       Here, Stodghill contends his convictions of indecent assault and

corruption of minors are exempted, non-registerable offenses under Section

9799.13(3.1).      In support, he relies upon this Court’s recent decision in

Commonwealth v. Bundy, 96 A.3d 390 (Pa. Super. 2014).

       Similar to the present case, in Bundy, prior to the enactment of

SORNA, the defendant entered a nolo contendere plea to charges of indecent

assault, graded as a second-degree misdemeanor, and corruption of minors.

See Bundy, supra, 96 A.3d at 391. At the time of his plea, the defendant

was not subject to a registration requirement under Megan’s Law. See id.

However, after the enactment of SORNA,7 the defendant was informed he

would be subject to the 25-year registration period for his conviction of

indecent assault, which was classified as a Tier II sexual offense under the


____________________________________________


6
 The language in subsection (2) was amended slightly in July of 2012. See
2012, July 5, P.L. 880, No. 91, § 5.
7
  As noted supra, SORNA was enacted on December 20, 2011, with an
effective date of December 20, 2012.



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new statute.     See id. at 392, citing 42 Pa.C.S. §§ 9799.14(c)(1.2) and

9799.15(a)(2).     He thereafter filed a petition seeking relief from the

registration requirement, which the trial court denied.

      On appeal, a panel of this Court determined Bundy was not required to

register based upon Section 9799.13(3.1)(ii)(B).             The panel found that

paragraph exempted convictions of second-degree misdemeanor indecent

assault that occurred between January 23, 2005, and December 29, 2012,

from the registration requirements. See id. at 395. While the panel noted

the “possible tension” between that subsection and subsection 9799.13(2), it

concluded, “the general provision in Paragraph (2) yields to the specific

provision set forth in Paragraph (3.1) and Paragraph (3.1) controls.” Id. at

395 n.4. With regard to Bundy’s corruption of minors conviction, the panel

explained that under SORNA, only a conviction of 18 Pa.C.S. § 6301(a)(1)(ii)

is a registerable offense, and the defendant was convicted under the former

Section 6301(a)(1). See id. at 392 n.3. Accordingly, the panel concluded

he was not required to register for his corruption of minors conviction.

      Although the Bundy decision appears to support Stodghill’s argument,

he fails to recognize that ruling has been called into doubt by the

Pennsylvania     Supreme   Court’s   later   decision   in    Commonwealth     v.

Farabaugh, 128 A.3d 1191 (Pa. 2015).

      In Farabaugh, the defendant pled guilty to indecent assault as a

second-degree misdemeanor, and was sentenced, on June 28, 2011, to a

term of two years’ probation. See id. at 1192. At the time of sentencing,

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the defendant was not required to register under Megan’s Law.       However,

after the enactment of SORNA in 2012, the defendant was subject to the 25-

year registration requirement under the Act. See id.

      The defendant subsequently filed a petition in the trial court seeking a

ruling that he was not required to register as a sex offender.      When the

court denied the petition, he filed an appeal to this Court. While that appeal

was pending, the Legislature amended SORNA, adding paragraph (3.1),

which, as noted above, exempts from the registration requirements a

second-degree misdemeanor conviction of indecent assault that occurred

between January 23, 2005, and December 19, 2012.          The Superior Court

panel addressed the applicability of the amendment sua sponte, finding the

defendant was not required to register under SORNA. See id. at 1193. The

Commonwealth then petitioned for allowance of appeal in the Supreme

Court.

      In analyzing the statutory subsections at issue, the Farabaugh Court

noted “that [the defendant] meets the criteria of both paragraph (2) and

paragraph (3.1).” Id. at 1194. However, the Court rejected the defendant’s

argument that the paragraphs were “irreconcilable.”            Id. at 1196.

Emphasizing the language in paragraph 3.1 that states “for purposes of this

paragraph,” the Farabaugh Court found that the indecent assault exclusion

applies only to those defendants who meet the requirements of paragraph

3.1. Id. Accordingly, the Court held:




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      Paragraph (2) applies to individuals, like appellee, who were still
      serving sentences on December 20, 2012, whereas paragraph
      (3.1) pertains to individuals who were convicted, released from
      prison, or were on probation or parole between January 23,
      2005, and December 19, 2012—the day before the effective date
      of Megan's Law IV and Act 19. Accordingly, we hold the second-
      degree-misdemeanor-indecent-assault exception applies only to
      paragraph (3.1); thus, the Superior Court erred in concluding
      appellee did not have to comply with the reporting and
      registration requirements of Megan's Law.

Id. at 1197.

      Relying on Farabaugh, we find the result in the present case is the

same. On May 11, 2011, Stodghill was sentenced to a term of one to two

years’ imprisonment for his conviction of indecent assault.     Therefore, on

December 20, 2012, the effective date of the SORNA amendments, Stodghill

was still serving his sentence for that crime. Pursuant to the reasoning in

Farabaugh, the indecent assault exception in paragraph (3.1) does not

apply, and under paragraph (2), Stodghill is required to comply with the

registration requirements of the Act.

      However, we agree with Stodghill that he is not required to register as

a sex offender for his conviction of corruption of minors.     See Stodghill’s

Brief at 11. On November 10, 2010, Stodghill pled guilty to one count of

corruption of minors under 18 Pa.C.S. § 6301(a)(1). Effective December 6,

2010, the corruption of minors statute was amended to include subsections

(a)(1)(i) and (a)(1)(ii).   Subsection (a)(1)(ii) specifically pertains to the

corruption of minors in the realm of sexual offenses.      See 18 Pa.C.S. §

6301(a)(1)(ii).   While the former subsection, graded as a first-degree



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misdemeanor, was not a registerable offense under Megan’s Law, subsection

(a)(1)(ii), graded as a first-degree felony, is a Tier I offense, which requires

a defendant to register for 15 years.      See 42 Pa.C.S. §§ 9799.14(b)(8),

9799.15(a)(1).

        Because Stodghill did not plead guilty to the subsection of the statute

that is a registerable offense, he would only be required to register if we

were to determine his conviction was an equivalent crime to subsection

(a)(1)(ii).   See 42 Pa.C.S. § 9799.14(b)(21).         A panel of this Court

considered and rejected that argument in Commonwealth v. Sampolski,

89 A.3d 1287 (Pa. Super. 2014).

        Sampolski involved facts very similar to those presented herein. The

defendant pled guilty in June of 2010 to one count of corruption of minors

under Section 6301(a)(1), in exchange for which the Commonwealth

dismissed some Megan’s Law offenses.          Sampolski, supra, 89 A.3d at

1287.     After the enactment of SORNA, and while he was still under

supervision for his conviction, the defendant was notified that he would be

required to register as a Tier I sex offender. Id. at 1288. The defendant

filed a petition “to enjoin any registration,” which the trial court granted. Id.

On appeal by the Commonwealth, the panel held that the former corruption

of minors statute and the later registerable offense were not equivalent

crimes. Id. at 1289 (holding the statutes contain different elements and are

graded differently).    Therefore, the Sampolski panel concluded that the

defendant was not required to register under SORNA.

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      The facts presented herein lead to the same result with respect to

Stodghill’s conviction of corruption of minors. Therefore, to the extent the

trial court determined Stodghill was required to register as a sex offender

based on his plea to corruption of minors, we find the court erred.

Accordingly, we reverse that component of the trial court’s order, and

remand for the entry of an order declaring Stodghill is not required to

register as a sex offender based upon his conviction of 18 Pa.C.S. §

6301(a)(1).

      Nevertheless, as discussed supra, we agree with the conclusion of the

trial court that Stodghill is required to register as a sex offender under

SORNA for his conviction of indecent assault. Furthermore, as both the trial

court and the Commonwealth point out, Stodghill was classified as a sexually

violent predator based upon his concurrent plea to aggravated indecent

assault at Docket No. 801-2010, a conviction not at issue herein.

Accordingly, as a result of that classification, he is required to register as a

sex offender for his lifetime. See 42 Pa.C.S. § 9799.15(a)(6).




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      Order affirmed in part and reversed in part. Case remanded for the

entry of a proper order. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2017




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