J-S45023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

CALEB DANIEL FOX

                            Appellant                  No. 1364 MDA 2014


             Appeal from the Judgment of Sentence of July 1, 2014
               In the Court of Common Pleas of Luzerne County
               Criminal Division at No.: CP-40-CR-0002759-2013

BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                            FILED OCTOBER 20, 2015

       Caleb Daniel Fox appeals the judgment of sentence entered against

him on July 1, 2014.        Fox contends that the trial court erred in failing to

award him credit for one day of time that he served during the pendency of

his charges.     He further contends that the trial court incorrectly classified

him as a Tier III offender under Pennsylvania’s Sex Offender Registration

and Notification Act (“SORNA”), 42 Pa.C.S. §§ 9799.10, et seq.             Solely

because we find that Fox’s former claim requires the relief requested, we

vacate Fox’s judgment of sentence, and remand for resentencing.

       The trial court has provided the following factual and procedural

history for this matter:


____________________________________________


*
       Former Justice specially assigned to the Superior Court.
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       [Fox] was sentenced . . . on July 1, 2014[,] after pleading guilty
       on April 4, 2014 to [counts one through seven] of Docket
       Number 2759 of 2013, Possession of Child Pornography, each a
       felony of the third degree[,1] and to Count Eight (8), Criminal
       Use of a Communications Facility, a felony of the third degree.2

       On or about June 4, 2013, [Fox’s] computer was identified by
       Special Agent Nicole Laudeman of the Pennsylvania Attorney
       General’s Office as having a potential download candidate
       (source) for at least seventeen (17) files of investigative interest
       with child pornographic content. On this same day, Special
       Agent Laudeman was able to make direct contact to [Fox’s]
       computer . . . to download five (5) video files[, each of which
       depicts] children under the age of eighteen (18) years engaged
       in sexual acts and/or poses and is defined as child pornography
       in violation of [18 Pa.C.S. § 6312(d)]. The videos contained on
       [Fox’s] computer include very young female child victims
       appearing to be between the ages of six (6) and eleven (11)
       years . . . and include a variety of sexual intercourse, oral and
       anal sex between adult men and the female children.
       Additionally, [Fox] was in possession of additional child
       pornography files depicting children appearing to be as young as
       three (3) years old engaged in sexual acts as his computer
       contained a file named “File 11: (pthc) toddler daughter cum 3y
       (rare file) bebita y papi.avi.” On or about August 5, 2013,
       agents from the Pennsylvania Office of the Attorney General
       executed a search warrant upon [Fox’s] residence . . . and
       previewed child pornography files found on four (4) laptop
       computers and one (1) desktop computer throughout the
       residence. [Fox] was subsequently arrested and charged with
       the above-mentioned crimes . . . . [Fox] pled guilty before this
       Court on April 4th, 2014 and was sentenced on July 1, 2014.3
____________________________________________


1
     See 18        Pa.C.S.    § 6312(d)        (sexual   abuse   of   children   –   child
pornography).
2
       See 18 Pa.C.S. § 7512(a).
3
      At sentencing, Fox was not designated a sexually violent predator.
However, as noted, supra, based upon Fox’s conviction of more than one
Tier I offense, the trial court designated him a lifetime registrant under
SORNA.



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         [Fox] filed a Motion to Modify Sentence on July 8, 2014[,] which
         was subsequently denied . . . on July 11, 2014.

         [Fox] filed a Notice of Appeal on August 6, 2014[,] and on
         August 13, 2014, [Fox] was ordered by [the trial court] to file a
         Concise Statement of [Erros] Complained of on Appeal [pursuant
         to Pa.R.A.P. 1925(b)].     Additionally, [Fox] filed a Motion to
         Correct Sentencing Notification to Sexual Assessment Board on
         August 7, 2014. [Fox] requested that the Sentence Notification
         Sheet be corrected to reflect that [Fox] was sentenced on Count
         7 to four (4) to eight (8) months concurrent to Count 6. [The
         trial court] granted [Fox’s] request for a correction and filed an
         Amended Order on August 13, 2014 correcting the sentencing
         error originally sent to the Sexual Offenders Assessment Board
         (“SOAB”). After an extension of time in which to receive . . .
         transcripts, [Fox] filed a [timely] Concise Statement of Matters
         Complained of on Appeal on September [8], 2014 . . . .

Trial Court Opinion (“T.C.O.”), 1/3/2015, at 1-3.

         Before this Court, Fox raises the following issues:

         1.     Whether the trial court imposed an illegal sentence by
         failing to give Mr. Fox credit for time served prior to sentencing?

         2.    Whether the trial court erred by classifying Mr. Fox as a
         Tier    III   sexual  offender,   pursuant    to   42    Pa.C.S.
         § 9799.14(d)(16) (multiple convictions), and imposing a lifetime
         registration requirement, where Mr. Fox had no prior convictions
         and the multiple offenses charged in this case arose from the
         same course of criminal conduct.

Brief for Fox at 2. For purposes of clarity, we consider Fox’s second issue

first.

         In Fox’s second issue, he challenges the application of 42 Pa.C.S.

§ 9799.14(d)(16) to the circumstances of the case. At stake is whether Fox

properly was designated a Tier III offender under SORNA, and, as such,

subjected to a lifetime reporting obligation.        Subsection 9799.14(d)(16)



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identifies as a Tier III offender anyone who has two or more convictions for

Tier I or Tier II offenses. See 42 Pa.C.S. §§ 979914(b), (c) (respectively).

Fox’s convictions for sexual abuse of children, standing alone, undisputedly

qualify as Tier I sexual offenses, subject to a fifteen-year registration

requirement. See 42 Pa.C.S. § 9799.14(b)(9). Thus, the question at issue

concerns only whether the counts to which Fox pleaded guilty count as

multiple offenses for purposes of subsection 9799.14(d)(16). This question

of statutory interpretation presents a pure question of law.          Thus, our

standard of review calls upon us to determine whether the trial court

committed legal error; the scope of our review is plenary. Commonwealth

v.   McDonough,      96   A.3d     1067,   1070   n.9   (Pa. Super. 2014);   see

Commonwealth v. Merolla, 909 A.2d 337, 345 (Pa. Super. 2006) (“[T]he

application of a statute is a question of law, and our standard of review is

plenary.” (internal quotation marks omitted)).

      In effect, Fox argues that the multiple offense Tier III designation is

intended   by the    legislature   to   address “serious offenders    and true

recidivists,” rather than “first-time, nonviolent offenders.” Brief for Fox at 8.

In support of this argument, Fox cites only one case, A.S. v. Pennsylvania

State Police, 87 A.3d 914 (Pa. Cmwlth. 2014), which, as a decision of the

Commonwealth Court, does not bind this Court. See Petow v. Warehime,

996 A.2d 1083, 1088 n.1 (Pa. Super. 2010).

      In A.S., the Commonwealth Court considered a mandamus petition

brought by an individual who, over a decade earlier, had pleaded guilty to

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several counts associated with his sexual involvement with a sixteen-year-

old girl when the petitioner had been twenty-one. Because Pennsylvania’s

age of consent was sixteen, the sexual relationship by itself was not

criminal.        However, at the time of the relationship, photographing a

sixteen-year-old in sexual circumstances was a crime, and the petitioner had

pleaded guilty to several counts associated with that activity. At sentencing,

the Commonwealth Court found, the defense, the prosecution, and the trial

court itself all appeared to understand that the petitioner’s guilty plea

incurred only then-effective Megan’s Law’s ten-year reporting requirement.

See A.S., 87 A.3d at 916-917 (citing 42 Pa.C.S. § 9795.1 (expired)).

However, more than ten years after his release, when the petitioner asked

the Pennsylvania State Police (“PSP”) to release him from his reporting

obligations, PSP refused to do so, contending that, because the petitioner

had pleaded guilty to more than one ten-year registration offense, he was

subject to lifetime reporting requirements under now-expired subsection

9795.1(b)(1), which, as does the subsection at issue in the instant case,

required lifetime registration for those with two or more convictions of

offenses that, by themselves, would require the offender to register for a

shorter duration.       Compare 42 Pa.C.S. § 9795(b)(1) (requiring lifetime

registration and reporting by “an individual with two or more conviction

of . . .   the    offenses   set   forth   in   subsection   (a)”)   with   42   Pa.C.S.

§ 9799.14(d)(16) (requiring lifetime registration and reporting by an




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individual with “[t]wo or more convictions of offenses listed as Tier I or Tier

II sexual offenses”).

       The petitioner maintained that he was entitled to relief because his

offenses “stemmed from a single criminal act, criminal episode or course of

conduct, i.e., causing the photographing of a minor in a sexual act.” Id. at

918. He argued, inter alia, that upholding his lifetime registration would be

tantamount to violating the Equal Protection Clause of the United States

Constitution insofar as it would leave the duration of similarly situated

defendants’ reporting obligations up to the prosecution:       Given a single

criminal episode, whether a defendant was subject to a ten-year or lifetime

reporting requirement could hinge upon whether the Commonwealth opted

to file one or more charges associated with the conduct in question.

       Based primarily upon its review of the Supreme Court’s plurality

decision in Commonwealth v. Gehris, 54 A.3d 862 (Pa. 2012), the

Commonwealth Court agreed. Reviewing at length the opinions in support of

both affirmance and reversal in Gehris,4 the Commonwealth Court sided

with the justices who wrote in favor of reversal.            Specifically, the

Commonwealth Court adopted the view “a defendant convicted of ‘two or

more’ subsection (a) offenses is subject to the lesser sanction of the ten-
____________________________________________


4
      Because the equally divided, six-member Gehris Court failed to reach
a majority disposition, the Superior Court’s decision in that case was
affirmed per curiam, and neither Gehris opinion has precedential effect.
See A.S., 87 A.3d at 919-20.



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year registration requirement so long as it is clear that the offenses were

part of the same criminal course of conduct.” A.S., 97 A.3d at 922 (quoting

Gehris, 54 A.3d at 879 (opinion in support of reversal by Todd, J.)). The

court determined that the petitioner’s photographs of his minor paramour,

upon which the charges to which he pleaded guilty had been based,

constituted a single criminal episode.           Consequently, the Commonwealth

Court held that the petitioner was entitled to be removed from PSP’s sexual

offender registration, having successfully fulfilled his ten-year obligation.

       Although the reasoning was considerably more detailed than is related

here, see A.S., 87 A.3d at 918-22, one feature that distinguishes A.S. from

the instant matter is clear: The Commonwealth Court’s determination that

the petitioner’s photography of one young woman in connection with one

consensual sexual relationship differs from the instant case, in which the

record indicates that the individual counts against Fox were based upon

various electronic files depicting numerous individual victims.

       More important, though, is the fact that our decision in Merolla—

which, unlike Gehris and A.S., binds this Court to the extent that it is

relevant to the instant matter5—provides a more robust basis upon which to
____________________________________________


5
      See Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013)
(“This panel is not empowered to overrule another panel of the Superior
Court.”). Notably, in passing, the A.S. court observed that the Gehris
opinion in support of affirmance adopted an approach similar to this Court’s
approach in Merolla, but implicitly disagreed with that approach in adopting
the reasoning underlying the opinion in support of reversal. See A.S., 87
(Footnote Continued Next Page)


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distinguish this case from A.S. and its adoption of the Gehris Court’s

opinion in support of reversal. In Merolla, at three separate informations

resolved in one proceeding, Merolla pleaded nolo contendere to two counts

of indecent assault, each arising from sexual assault against one of two

sisters, and, at the same proceeding, one count of statutory sexual assault

against a third, unrelated victim. Merolla, 909 A.2d at 340. After a series

of procedural steps following the court’s acceptance of his plea and the entry

of Merolla’s judgment of sentence, the trial court determined that Merolla

was subject to Megan’s Law II’s lifetime reporting obligations because he

pleaded nolo contendere to two separate counts of indecent assault. Id. at

340-41 (citing 42 Pa.C.S. § 9795(b)(1) (expired)).

      This Court agreed.           We began by acknowledging the absence of

authority on the question whether “simultaneous pleas should be considered

as multiple convictions or one single conviction for registration and

notification purposes” under Megan’s Law II. Id. at 345. Finding no directly

on-point authority, we turned for guidance to our Supreme Court’s review of

similar circumstances in the context of Pennsylvania’s Three Strikes Statute,




                       _______________________
(Footnote Continued)

A.2d at 922 (noting that, if the opinion in support of reversal’s reasoning
were not adopted, “then having a ten-year requirement under the former
subsection (a) and a separate reporting requirement under the former
subsection (b) is meaningless”).



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42    Pa.C.S.      § 9714(a)(2),6       specifically   the   Court’s   decision   in

Commonwealth v. Shiffler, 879 A.2d 185 (Pa. 1985).

       In Shiffler, the Court considered whether the defendant should be

sentenced as a second or third-time offender under section 9714. The issue

arose because the defendant, charged with burglary, resisting arrest, and

other charges arising from a single criminal episode, had pleaded guilty

several years earlier in an unrelated case to three separate charges of

burglary. Id. at 187. The defendant argued that the prior burglary charges,

because the sentences were imposed at the same proceeding, should count

as only one offense for purposes of three-strikes analysis.            The Superior

Court had disagreed, directing the trial court to sentence the defendant as a

third-time offender, because, it held, each of the earlier burglaries counted

as a separate offense. Id. at 187-88.

       The Shiffler Court disagreed, finding that the Commonwealth’s

favored interpretation would lead to an absurd result, in violation of our

canons of construction. Id. at 194.

       At the time of his concurrent sentencing for his three prior
       burglaries . . ., [the defendant] was not, in fact, sentenced as a
       second-time offender. Indeed, because he committed all of the
       prior burglaries before he was convicted or sentenced for any of
       them, he could not have been sentenced as a second-time
       offender . . . . The anomaly of [the defendant’s] situation is
____________________________________________


6
     Although section 9714 has been amended several times since the
Court decided Shiffler, the amendments have not modified subsection
9714(a)(2) in any relevant particular.



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      thus: while he has not ever been—nor could he have been—
      sentenced as a second-strike offender, a reflexive application of
      subsection 9714(a)(2) would subject him to sentencing as a
      third-strike offender. . . . We do not believe that such a result
      was intended by the General Assembly . . . .

      As to the recidivist philosophy, this and other Pennsylvania
      appellate courts have repeatedly recognized that[] the point of
      sentence enhancement is to punish more severely offenders who
      have persevered in criminal activity despite the theoretically
      beneficial effects of penal discipline. Particularly salient
      here is the implicit link between enhanced punishment and
      behavioral reform, and the notion that the former should
      correspondingly increase along with a defendant’s foregone
      opportunities for the latter. Any other conception would ignore
      the rationale underlying the recidivist philosophy, i.e., that the
      most culpable defendant is one, who after being reproved, still
      hardeneth his neck.         Just as the second-time offender
      enhancement under subsection (a)(1) is meant to punish a
      defendant more severely when that defendant has offended
      before and has been afforded an opportunity to reform, so too is
      the third-time offender enhancement under subsection (a)(2),
      which increases the minimum punishment to twenty-five years,
      obviously meant to punish a defendant more severely when he
      has already foregone two opportunities to reform himself. The
      generally recognized purpose of such graduated sentencing laws
      is to punish offenses more severely when the defendant has
      exhibited an unwillingness to reform his miscreant ways and to
      conform his life according to the law.

Id. at 195 (emphasis in original; citations and internal quotation marks

omitted). Thus, the Court held that the defendant, having had only one, not

two, experiences with the penal system should not be punished as severely

as an offender who had two prior rehabilitative opportunities.

      In Merolla, this Court found the reasoning in Shiffler illuminating to

the distinct context of Megan’s Law II’s then-applicable registration scheme

for multiple offenders.   Noting that the Supreme Court had deemed the



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policy underlying registration and notification to be the promotion of public

safety, rather than penal in nature, see Commonwealth v. Williams,

832 A.2d 962 (Pa. 2003), we found meaning in a critical distinction between

the language used in the Three Strikes Statute and the relevant multiple-

offense language in Megan’s Law II:

      The salient portion of [Megan’s Law II] provides:            “[a]n
      individual with two or more convictions of any of the offenses set
      forth in subsection (a)” shall be subject to lifetime registration.
      42 Pa.C.S. § 9795(b)(1). However, the Three Strikes Statute
      applies “[w]here the person had at the time of the commission of
      the current offense previously been convicted of two or more
      such crimes . . . .” 42 Pa.C.S. § 9714(a)(2) (emphasis added).
      Thus, the language of Megan’s Law II is distinguishable from the
      language of the three Strikes Statute[,] as Megan’s Law II does
      not require a previous conviction. Moreover, the legislative
      intent behind Megan’s Law II is distinct from that of the Three
      Strikes Statute. Whereas Megan’s Law II is based on concern for
      public safety, the Three Strikes Statute, although it also
      implicates public safety, is directed to heightening punishment
      for criminals who have failed to benefit from the effects of penal
      [discipline] . . . .

Merolla, 909 A.2d at 346-47 (citations modified). Thus, unlike in Shiffler,

this Court deemed it “irrelevant that Merolla had not been sentenced for his

first offense before the commission of his second crime.” Merolla, 909 A.2d

at 347.   We further explained that “the intent of the legislature is better

served by subjecting Merolla to heightened registration requirements

because the public would continue to be notified of his whereabouts after the

initial ten-year registration period.” Id.

      We find no material distinction between this case and Merolla,

notwithstanding the slightly different fact pattern and the enactment of

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SORNA in lieu of Megan’s Law III, the successor statute to the Megan’s Law

II. As noted, supra, the SORNA provision requiring individuals with multiple

Tier I offenses to be subject to Tier III’s lifetime registration requirement

does not differ from the parallel provision that we reviewed in Merolla.

Similarly, the policies and legislative intent embodied in those statutes have

not changed. Furthermore, in this case the separate counts, albeit charged

at one docket, arose from the possession of multiple files involving at least

several victims.    In light of these considerations, Fox’s exclusive reliance

upon A.S., a decision that does not bind this Court in any event, is

unavailing.   Accordingly, the trial court did not err as a matter of law in

subjecting Fox to SORNA’s lifetime registration requirement upon the basis

that Fox pleaded guilty to numerous distinct Tier I offenses.

        We now turn to Fox’s first issue, in which he contends that the trial

court erroneously denied his motion for one day of credit against his

sentence for time served.     Fox correctly notes that he is entitled to time

credit against his judgment of sentence “for all time spent in custody as a

result of the criminal charge for which a prison sentence is imposed,”

including credit for time spent in custody before and during trial, as well as

custodial time served during the pendency of an appeal.           See 42 Pa.C.S.

§ 9760(1). Fox also correctly asserts that a failure to award time that is due

under     section 9760   implicates    the     legality   of   sentence.    See

Commonwealth v. Johnson, 967 A.2d 1001, 1003 (Pa. Super. 2009). We

review challenges to the legality of sentence de novo, and the scope of our

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review is plenary.        Commonwealth v. Wolfe, 106 A.3d 800, 802

(Pa. Super. 2014).

      Fox contends that the trial court failed to award him time served for

one day, August 5, 2013, the day of his arrest.                     The Commonwealth

concedes the point, agreeing that “[t]he trial court incorrectly denied Fox’s

request for credit for that day,” Brief for the Commonwealth at 7, and

averring that Fox is entitled to one day of heretofore uncredited time. The

trial court disposed of this particular challenge as follows: “After thorough

review   of    the   record   in   its   entirety,   along   with    the   Pre-Sentence

Investigation, [the trial court] can find no factual merit to [Fox’s] allegation

and therefore . . . cannot further discuss this erroneous claim of error.”

T.C.O. at 5.

      Our review of the record indicates that Fox was arrested and

incarcerated on August 5, 2013, when bail was set at $50,000. The record

indicates that, although Fox did not post bail initially, a bail bondsman

arranged for Fox’s release on August 9, 2013. Our review further shows no

evidence that Fox was credited for the time he served on August 5, 2013.

Based upon the state of the record, and in light of the Commonwealth’s lack

of opposition to Fox’s request for one day of credit for time he evidently

served on August 5, 2013, we conclude that the trial court erred in failing to

credit Fox with one day against his sentence. Consequently, we vacate Fox’s

sentence and remand for the trial court to resentence Fox providing due

credit for the one day he seeks.

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J-S45023-15



      Judgment of sentence vacated.      Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2015




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