J. S70006/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                  v.                     :
                                         :
RAYMOND BENDER, JR.,                     :          No. 980 EDA 2018
                                         :
                       Appellant         :


        Appeal from the Judgment of Sentence, February 13, 2018,
             in the Court of Common Pleas of Monroe County
            Criminal Division at No. CP-45-CR-0001770-2017


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED JANUARY 30, 2019

     Raymond Bender, Jr., appeals from the February 13, 2018 judgment

of sentence entered in the Court of Common Pleas of Monroe County

following entry of his nolo contendere plea to one count of unlawful

contact with a minor-sexual offense. The trial court sentenced appellant to a

term of incarceration of 22 to 84 months. We affirm.

     The trial court set forth the following:

           On August 17, 2017, Appellant was charged by
           Criminal Information with one count each of
           Aggravated Indecent Assault—Complainant less than
           16,[Footnote 1] Aggravated Indecent Assault without
           Consent,[Footnote 2] Indecent Assault without
           Consent of Other,[Footnote 3] Unlawful Contact with
           Minor—Sexual Offenses,[Footnote 4] Corruption of
           Minors—Defendant Age 18 or Above,[Footnote 5]
           and Indecent Assault—Person Less than 16 Years of
           Age.[Footnote 6]     The charges arise from a
           February 5, 2017, and February 16, 2017, incident
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          at a residence in Chestnuthill Townships [sic],
          Monroe County, Pennsylvania, involving a minor
          victim.

               [Footnote   1]   18   Pa.C.S.A.   §   3125(A)(8).
               [Footnote   2]   18   Pa.C.S.A.   §   3125(A)(1).
               [Footnote   3]   18   Pa.C.S.A.   §   3126(A)(1).
               [Footnote   4]   18   Pa.C.S.A.   §   6318(A)(1).
               [Footnote   5]   18   Pa.C.S.A.   §   6301(A)(1)(ii).
               [Footnote   6]   18   Pa.C.S.A.   §   3126(A)(8).

          On September 5, 2017, this case was joined for trial
          via Notice of Joinder with case number 1868 CR
          2017.

          On    November     6,   2017,    Appellant    pleaded
          nolo contendere to Amended Count I of the
          Criminal Information: Unlawful Contact with a Minor–
          Sexual Offenses.[Footnote 7] On the same day,
          [w]e ordered the Sexual Offenders Assessment
          Board to conduct an evaluation of the Appellant to
          determine if the Appellant is a sexually violent
          predator (“SVP”) prior to the imposition of sentence.
          Appellant filed a Motion to Preclude Evaluation on
          December 1, 2017, requesting that this Court
          preclude any evaluation being performed to make a
          determination into whether Appellant is an SVP. A
          hearing was held on Appellant’s Motion on January 9,
          2018, and counsel were ordered to file briefs in
          support of their argument specifically regarding the
          use of an evaluation for purposes of a presentence
          investigation report and sentencing. After review of
          both parties’ briefs, Appellant’s Motion was denied
          from the bench at Appellant’s sentencing hearing.

               [Footnote 7] The Commonwealth filed
               an Amended Criminal Information on
               November 13, 2017, charging Appellant
               with Unlawful Contact with a Minor–
               Sexual    Offenses   (18    Pa.C.S.A.
               § 6318(A)(1)).

          On February 13, 2018, [w]e sentenced Appellant to
          undergo a period of incarceration in a state


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              correctional institution for a period of not less than
              22 months nor more than 84 months, said sentence
              to run consecutive with the sentence imposed in case
              number 1868 CR 2017 for an aggregate sentence of
              not less than 52 months nor more than
              204 months.[Footnote 8] Additionally, Appellant was
              found to be classified as a Tier 2 sexual offender
              subject to a 25-year registration period pursuant to
              SORNA1 as set forth at 42 Pa.C.S.A. § 9799.23.

                    [Footnote 8] In case number 1770 CR
                    2017, [w]e sentenced Appellant to a
                    period of incarceration in a state
                    correctional institution of not less than
                    15 months nor more than 60 months for
                    Amended Count I of the Criminal
                    Information—Corruption of Minors, and
                    not less than 15 months nor more than
                    60 months for Amended Count II of the
                    Criminal    Information—Corruption      of
                    Minors,    said     sentences    to   run
                    consecutively for an aggregate sentence
                    of not less than 30 months nor more
                    than 120 months.

              On February 20, 2018, Appellant filed a Motion for
              Reconsideration of Sentence, which was denied by
              this Court’s Order on the same day. On March 20,
              2018, Appellant filed a Notice of Appeal to the
              Superior Court appealing our September 13, 2018,
              Sentencing Order, and our February 20, 2018, Order
              Denying Appellant’s Motion for Reconsideration of
              Sentence. We ordered Appellant to file a Statement
              Pursuant to Pa.R.A.P. 1925(b) within 21 days and
              Appellant filed said statement on April 10, 2018.

Trial court opinion, 5/22/18 at 1-3 (citation to notes of testimony omitted).

        Appellant raises the following issues for our review:2


1   The Sexual Offender Registration and Notification Act (“SORNA”).

2   We have re-ordered appellant’s issues for ease of disposition.


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            1.     Did the [trial] court abuse its discretion at
                   sentencing by allowing the Sexually Violent
                   Predator Assessment to be considered at the
                   time of sentencing for purposes other than
                   determination if [appellant] was a Sexually
                   Violent Predator, where all of the information is
                   already available to the court and [appellant]
                   did not have a chance to confront the person
                   who did the evaluation about their opinions
                   and professional determinations, when a
                   [d]efendant cannot be declared a Sexually
                   Violent Predator?

            [2.]   Did the [trial] [c]ourt abuse its discretion at
                   sentencing when it is a violation of
                   [appellant’s] due process constitutional rights
                   under the United States and Pennsylvania
                   Constitutions where SORNA’s requirements are
                   punitive and not just civil requirements?

            [3.]   Is it a violation of [appellant’s] due process
                   constitutional rights under the United States
                   and     Pennsylvania    Constitutions      where
                   mandatory reporting compliance with SORNA’s
                   requirements are an affirmative restraint upon
                   [appellant] and such restraint is punitive?

            [4.]   Did the [trial] [c]ourt abuse its discretion at
                   sentencing when it required [appellant] to
                   register under SORNA?

            [5.]   Is it a violation of [appellant’s] due process
                   constitutional rights under the United States
                   and     Pennsylvania      Constitutions where
                   compliance with SORNA’s requirements are
                   invested in the state police?

Appellant’s brief at 7.

      In his first four issues, appellant relies on our supreme court’s decision

in Commonwealth v. Muniz, 164               A.3d 1189    (Pa. 2017) (OAJC),

cert. denied sub nom. Pennsylvania v. Muniz, 138 S.Ct. 925, 200 L.Ed.


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2d 213, 2018 WL 491630 (U.S. 2018), and this court’s decision in

Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super. 2017), to argue that

his sentence is unconstitutional. The sum and substance of these complaints

is that the trial court abused its discretion when it considered the

assessment that the sexual offenders assessment board (“SOAB”) performed

on appellant prior to imposing sentence because a SOAB assessment is

unconstitutional pursuant to this court’s decision Butler and that because

our supreme court in Muniz held that SORNA’s registration requirements are

punitive, they cannot be applied to him. Appellant is mistaken.

     In   Muniz,   our   supreme   court   held   that   SORNA’S   registration

requirements constitute criminal punishment, as opposed to a mere civil

penalty, and therefore, their retroactive application violates the ex post

facto clause of the U.S. Constitution.        Muniz, 164 A.3d at 1192.

Thereafter, in Butler, this court concluded that because Muniz held

SORNA’s registration requirements are punitive and an SVP designation

increases the registration period, trial courts cannot apply SORNA’s

increased registration requirement to SVPs because SORNA does not require

a fact-finder to determine, beyond a reasonable doubt, that the defendant is

an SVP. Butler, 173 A.3d at 1217-1218, citing Alleyne v. United States,

570 U.S. 99 (2013).      We further found 42 Pa.C.S.A. § 9799.24(e)(3)

unconstitutional and directed trial courts to apply only the applicable

tier-based registration period, as those periods apply based on the



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conviction itself, and not due to any additional fact not found, under

SORNA’s procedures, by the fact-finder. Butler, 173 A.3d at 1218.

      Here, appellant’s reliance on Muniz and Butler is misplaced.      First,

appellant was not deemed an SVP in violation of Butler. Rather, the trial

court complied with this court’s directive in Butler when it required

appellant to register under the applicable tier-based registration period

based upon appellant’s conviction itself and not based upon any additional

fact not found by a fact-finder.         Second, because SORNA was not

retroactively applied to appellant, Muniz provides no relief. Third, neither

Muniz nor Butler held that a SOAB assessment is unconstitutional.

Appellant’s constitutional challenges, therefore, lack merit.

      Appellant appears to challenge the discretionary aspect of his sentence

by claiming that the trial court’s consideration of the SOAB assessment

somehow constituted an abuse of discretion even though “[t]he author of

the SVP report had the same information available to them as did the

probation officer that did the pre-Sentence Investigation.” (Appellant’s brief

at 12.)

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].       An appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court’s jurisdiction by satisfying a four-part test:

                  [W]e conduct a four-part analysis to
                  determine: (1) whether appellant has
                  filed a timely notice of appeal, see


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                   Pa.R.A.P. 902 and 903; (2) whether the
                   issue   was   properly   preserved    at
                   sentencing or in a motion to reconsider
                   and modify sentence, see Pa.R.Crim.P.
                   [720]; (3) whether appellant’s brief has
                   a fatal defect, Pa.R.A.P. 2119(f); and
                   (4) whether there is a substantial
                   question that the sentence appealed
                   from is not appropriate under the
                   Sentencing     Code,    42     Pa.C.S.A.
                   § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citation

omitted; brackets in original).

      Here, appellant filed a timely notice of appeal, but did not properly

preserve, in a post-sentence motion seeking reconsideration of sentence, his

seeming challenge that the court abused its discretion by considering the

SOAB assessment.      Additionally, appellant failed to include in his brief the

requisite Rule 2119(f) statement. Consequently, to the extent that appellant

challenges a discretionary aspect of his sentence, appellant has failed to

invoke this court’s jurisdiction.3


3 We note that the Commonwealth did not object to appellant’s failure to
include a Rule 2119(f) statement. Therefore, had appellant properly invoked
this court’s jurisdiction by preserving his discretionary challenge in a
post-sentence motion for reconsideration of sentence, appellant’s failure to
include a Rule 2119(f) statement in his brief would not automatically result
in waiver of his discretionary sentencing challenge. See Commonwealth v.
Dodge, 77 A.3d 1263, 1271 (Pa.Super. 2013) (reiterating that this court
may address a discretionary sentencing challenge where the Commonwealth
does not object to defendant’s failure to include a Rule 2119(f) statement in
the appellate brief).      Had appellant properly invoked our jurisdiction,
however, appellant would have failed to raise a substantial question for our
review because he advances no argument that the trial court’s actions were
either: (1) inconsistent with a specific provision of the Sentencing Code; or


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       In his final issue, appellant maintains that the courts, and not the state

police, should “be the ones that monitor [SORNA] compliance” because

“[a]ppellant does not see the reason the State Police need to have

standing.”     (Appellant’s   brief    at   20.)      Appellant    then    relies    upon

Commonwealth v. Harmon,4 which he indicates was decided by a

Philadelphia trial court and which he claims “is similar” to his case. (Id. at

21.)

       Notwithstanding the fact that a trial court decision is not binding upon

this court (see Dental Care Assocs., Inc. v. Keller Eng’rs, Inc., 954 A.2d

597, 603 (Pa.Super. 2008)), appellant fails to demonstrate how his case is

“similar” to Harmon. Consequently, appellant waives this claim on appeal.

See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)

(reiterating that “where an appellate brief fails to provide any discussion of a

claim with citation to relevant authority or fails to develop the issue in any

other meaningful fashion capable of review, that claim is waived”); citing to

Commonwealth         v.    Walter,      966    A.2d     560,      566     (Pa.      2009);

Commonwealth        v.    Steele,     961   A.2d   786,   799     n.12    (Pa.      2008);

Commonwealth v. Puksar, 951 A.2d 267, 293-294 (Pa. 2008). See also




(2) contrary to the fundamental norms which underlie the sentencing
process. See Commonwealth v. Swope, 123 A.3d 333, 338 (Pa.Super.
2015).

4  We note that we were unable to locate this decision based upon the
citation that appellant provided.


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Pa.R.A.P. 2119(a) (requiring that each point treated in an argument must be

“followed by such discussion and citation of authorities as are deemed

pertinent”). Finally, we note that our supreme court has long held that it is

not the court’s obligation to formulate an appellant’s arguments.        See

Commonwealth        v.    Wright,   961   A.2d   119,   135    (Pa.   2008);

Commonwealth v. Thomas, 717 A.2d 468, 482-483 (Pa. 1998).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 1/30/19




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