J-S33013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ERIC ROBERT TURINSKI,

                            Appellant                 No. 818 MDA 2016


         Appeal from the Judgment of Sentence Entered April 14, 2016
               In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0003065-2014


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 13, 2017

        Appellant, Eric Robert Turinski, appeals from the judgment of sentence

of 12 to 36 months’ incarceration, followed by 36 months’ probation, and a

lifetime registration requirement under the Sexual Offender Registration and

Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.41, imposed after he

pled guilty to statutory sexual assault (SSA) under 18 Pa.C.S. § 3122.1. On

appeal, Appellant claims that the trial court erred by utilizing an incorrect

offense gravity score (OGS) when sentencing him, and that the court

imposed an illegal sentence by classifying him as a Tier III offender under

SORNA. After careful review, we affirm.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       Briefly, Appellant was arrested and charged with various sexual

offenses based on allegations that, in April of 2008, he had sexual

intercourse with a minor victim, who was 14 years old at that time.        In

September of 2015, Appellant pled guilty to one count of SSA, graded as a

felony of the second degree. On April 14, 2016, Appellant proceeded to a

sentencing hearing, at which he was first determined not to be a sexually

violent predator, and he was then sentenced to the above-stated term of

incarceration and probation. The court also directed that Appellant’s SSA

conviction be considered as a Tier III offense under SORNA, thus subjecting

him to a lifetime registration requirement. See 42 Pa.C.S. § 9799.14.

       Appellant filed a timely motion for reconsideration of his sentence,

which was denied on May 5, 2016. He then filed a timely notice of appeal to

this Court. That same day, the trial court issued an order directing Appellant

to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal.    Appellant requested an extension of time to file his concise

statement, which the court granted on May 26, 2016, directing that

Appellant file his statement by June 30, 2016. However, Appellant did not

file his concise statement until October 5, 2016.     Consequently, the trial

court issued a Rule 1925(a) opinion stating that any issues Appellant seeks

to raise on appeal are waived. See Trial Court Opinion (TCO), 12/7/16, at

1-2.

       Herein, Appellant presents two issues for our review, which we have

reordered for ease of disposition:

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      A. Whether the lower court imposed an illegal sentence when it
      used a gravity score of nine (9) when the crime [] Appellant
      plead [sic] guilty to carries an offense gravity score of seven (7).

      B. Whether the lower court imposed an illegal sentence when it
      sentenced [] Appellant to register as a lifetime Tier III sexual
      offender when [] Appellant pled guilty to Count 2 of the criminal
      information, [a] violation of 18 Pa.C.S.A. §[]3122.1 Statutory
      Sexual Assault graded as a Felony of the Second Degree;
      specifically that [] Appellant engaged in sexual intercourse with a
      person less than sixteen (16) years of age when [] Appellant was
      four (4) or more years older than the complainant and []
      Appellant and the complainant are not married to each other.

Appellant’s Brief at 5.

      Before examining Appellant’s issues, we must address the untimely

filing of his Rule 1925(b) statement. Under Rule 1925(c)(3) and this Court’s

decision in Commonwealth v. Burton, 973 A.2d 428 (Pa. Super. 2009),

counsel’s untimely filing of a Rule 1925(b) statement constitutes per se

ineffectiveness, which permits this Court to remand for the nunc pro tunc

filing of a concise statement and an opinion by the trial court. We recognize

that in Burton, we held that “if there has been an untimely filing, this Court

may decide the appeal on the merits if the trial court had adequate

opportunity to prepare an opinion addressing the issues being raised on

appeal.   If the trial court did not have an adequate opportunity to do so,

remand is proper.” Burton, 973 A.2d at 433.

      Here, the trial court did not explicitly address, in its Rule 1925(a)

opinion, the two sentencing issues Appellant raises herein.      However, the

court did state that its “reasons for its sentencing order in this case appear

of record in the sentencing hearing transcript and in the hearing record


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regarding [Appellant’s] post-sentence motion.” TCO at 1-2 (unnumbered).

We have reviewed the record and agree that the court’s rationale for

imposing Appellant’s term of incarceration, and its decision to classify him as

a Tier III SORNA offender, is apparent on the face of the record.

Accordingly, we can meaningfully review Appellant’s sentencing claims based

on the record before us and we need not delay this case by remanding for a

more detailed Rule 1925(a) opinion.

      Appellant first argues that the trial court applied an incorrect offense

gravity score (OGS) of 9, when the correct OGS for his SSA offense was 7.

While in his statement of this issue, Appellant asserts that it implicates the

legality of his sentence, he acknowledges in his argument that this claim is

actually a challenge to the discretionary aspects of his sentence.        See

Appellant’s Brief at 14. We agree.

            Our Supreme Court has provided guidance on what
      constitutes the discretionary aspects of sentencing. Section
      9781(b) specifies that allowance of appeal of the discretionary
      aspects of sentence may be granted where it appears that there
      is a substantial question that the sentence imposed is not
      appropriate under this chapter. The chapter referred to is, of
      course, the entire Sentencing Code. We have stated that [t]he
      purpose of the prior record score and the [OGS] are part of the
      Guidelines used by the court to create uniformity in sentencing.
      This Court has further stated that, if a sentencing court
      considers improper factors in imposing sentence upon a
      defendant, the court thereby abuses its discretion, but the
      sentence imposed is not rendered illegal. Otherwise, every
      erroneous consideration by a sentencing court will render the
      sentence illegal in a manner which cannot be waived by a
      defendant. If we were to qualify an improper calculation of
      offense gravity score as implicating the legality of sentence, we
      would be giving the sentencing guidelines more weight than they

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      were intended. We recently stated[] [that] the guidelines list
      ranges within which a court may sentence for particular crimes;
      they are not mandatory and courts will take into account various
      other factors when sentencing.

            Although a sentencing court has no obligation to sentence
      within the guidelines, the trial court must necessarily correctly
      apply the guidelines and reach the correct point of departure
      before sentencing outside of the guidelines.

           [Therefore, t]he sentencing court must correctly ascertain
      the [OGS] in order to reach the proper sentence
      recommendation provided by the Sentencing Guidelines.

            When the Sentencing Guidelines are properly applied, the
      judge may then exercise his or her discretion to sentence
      outside the Guidelines. An improper calculation of the offense
      gravity score affects the outcome of the sentencing
      recommendations, resulting in an improper recommendation,
      thereby compromising the fundamental norms which underlie
      the sentencing process. We thus hold that any misapplication of
      the Sentencing Guidelines constitutes a challenge to the
      discretionary aspects of sentence.

Commonwealth v. Archer, 722 A.2d 203, 210–11 (Pa. Super. 1998)

(internal citations and quotation marks omitted; emphasis in original).

      In light of Archer, it is apparent that Appellant’s allegation that the

trial court applied an incorrect OGS implicates the discretionary aspects of

his sentence.    “It is well settled that an [a]ppellant’s challenge to the

discretionary aspects of his sentence is waived if the [a]ppellant has not filed

a post-sentence motion challenging the discretionary aspects with the

sentencing court.”   Commonwealth v. Bromley, 862 A.2d 598, 603 (Pa.

Super. 2004) (citing Commonwealth v. Mann, 820 A.2d 788 (Pa. Super.

2003) (issues challenging the discretionary aspects of sentence must be

raised in post-sentence motion or by raising claim during sentencing


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proceedings; absent such initiative, objection to the discretionary aspects of

sentence waived on appeal)).            Here, Appellant did not raise any claim

concerning the OGS in his post-sentence motion, and he also does not point

to where he preserved this claim at the time of the sentencing hearing.

Accordingly, he has not preserved his first sentencing claim for our review.1

       Next, Appellant contends that the court imposed an illegal sentence by

designating him as a Tier III offender under SORNA, thus subjecting him to

a lifetime registration requirement. Preliminarily, Appellant is incorrect that

this claim implicates the legality of his sentence. Both our Supreme Court

and this Court have declared that the registration requirements of SORNA

are not punitive and, therefore, they do not constitute criminal punishment.

See Commonwealth v. Gaffney, 733 A.2d 616, 622 (Pa. 1999);

Commonwealth v. Benner, 853 A.2d 1068, 1070 (Pa. Super. 2004).

Rather, “the registration requirement is properly characterized as a collateral

consequence of [the defendant’s] plea, as it cannot be considered to have a
____________________________________________


1
  In any event, we note that at the sentencing proceeding, Appellant’s
attorney informed the court that Appellant’s OGS was 7, and that the
standard range guidelines called for a minimum sentence of 6 to 14 months’
incarceration. See N.T. Sentencing, 4/14/16, at 34. The court imposed a
minimum sentence of 12 months, which was within that standard range.
While Appellant avers on appeal that the court applied an OGS of 9, and
sentenced him “as if he was convicted of a [f]elony of the [first d]egree
rather than a [f]elony of the [second d]egree,” he provides no citation to the
record to support this assertion. Appellant’s Brief at 15. Thus, even had
Appellant preserved his OGS claim for our review, we would deem it
meritless.




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definite, immediate and largely automatic effect on [a defendant’s]

punishment.”      Benner, 853 A.2d at 1070 (citation and internal quotation

marks omitted).2 Thus, Appellant’s challenge to the registration requirement

imposed by the court does not implicate the legality of his sentence.

       Nevertheless, Appellant contends that the trial court erred by

designating him as a Tier III offender under SORNA.3              By way of

background, Appellant pled guilty to SSA as defined by the version of 18

Pa.C.S. § 3122.1 that was in effect in 2008, which is when he committed the

offense. That former version of section 3122.1 (hereinafter, “section 3122.1

(Former)”) defined SSA as follows:



____________________________________________


2
   We recognize that “Gaffney and Benner were decided prior to the
effective date of SORNA….” Commonwealth v. McDonough, 96 A.3d
1067, 1071 (Pa. Super. 2014). However,

       the same principles behind the registration requirements for
       sexual offenders under Megan's Law apply to those subject to
       SORNA. Namely, to effectuate, through remedial legislation, the
       non-punitive goal of public safety. Gaffney, 733 A.2d at 619;
       see 42 Pa.C.S. § 9791(a) (legislative findings and declaration of
       policy behind registration of sexual offenders). In fact, one of
       the main purposes behind SORNA is to fortify the registration
       provisions applicable to such offenders. See 42 Pa.C.S. §
       9799.10 (purpose of registration of sexual offenders under
       SORNA); see also H.R. 75, 195th Gen. Assemb. Reg. Sess. (Pa.
       2012).

McDonough, 96 A.3d at 1071.

3
 Appellant preserved this claim for our review by raising it in a written
motion filed before his sentencing proceeding.



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     Except as provided in section 3121 (relating to rape), a person
     commits a felony of the second degree when that person
     engages in sexual intercourse with a complainant under the age
     of 16 years and that person is four or more years older than the
     complainant and the complainant and the person are not married
     to each other.

18 Pa.C.S. § 3122.1 (Former).    A conviction of SSA under section 3122.1

(Former) did not subject a person to registration under the version of

Megan’s Law (the predecessor to SORNA) that was in effect at the time

Appellant committed his SSA offense (unless that person was determined to

be a sexually violent predator, which Appellant was not). See 42 Pa.C.S. §

9795.1 (effective January 1, 2007 to December 7, 2008).

     In 2011, section 3122.1 (Former) was amended (effective February

21, 2012) to define SSA as follows:

     (a) Felony of the second degree.--Except as provided in
     section 3121 (relating to rape), a person commits a felony of the
     second degree when that person engages in sexual intercourse
     with a complainant to whom the person is not married who is
     under the age of 16 years and that person is either:

        (1) four years older but less than eight years older than
        the complainant; or

        (2) eight years older but less than 11 years older than the
        complainant.

     (b) Felony of the first degree.--A person commits a felony of
     the first degree when that person engages in sexual intercourse
     with a complainant under the age of 16 years and that person is
     11 or more years older than the complainant and the
     complainant and the person are not married to each other.

18 Pa.C.S. § 3122.1 (hereinafter, “section 3122.1 (Current)”).

     Additionally, on December 20, 2011, the Legislature replaced Megan’s

Law with SORNA, which became effective on December 20, 2012.          Under

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SORNA, a person convicted of SSA under section 3122.1(a)(1) (Current)

does not have to register as a sexual offender.             However, a person

convicted of an offense under section 3122.1(a)(2) (Current) must register

as a Tier II offender, and a person convicted of an offense under section

3122.1(b) (Current) must register as a Tier III offender.

      Here, the trial court determined that Appellant was a Tier III offender,

thus equating his conviction with a violation of section 3122.1(b).          On

appeal, Appellant contends that, when pleading guilty, he could have only

contemplated    that   his   conviction   would   be   comparable   to   section

3122.1(a)(1) (Current), which has no registration requirement. In support,

Appellant stresses that his SSA conviction is graded as a second-degree

felony, as is a violation of section 3122.1(a)(1) (Current). In contrast, an

offense under section 3122.1(b) (Current) is graded as a felony of the first

degree. Appellant also emphasizes that the criminal

      information accused [him] of being four (4) or more years older
      than the complainant. The only subsection of [section] 3122.1
      [(Current)] that mentions the number four (4) is [section]
      3122.1(a)(1) [(Current)]; all other subsection[s] reference …
      different age ranges, none beginning with four (4). For []
      Appellant to believe that he was entering a plea of guilt[y] to
      anything [other] than 18 Pa.C.S.A. § 3122.1(a)(1) [(Current)]
      would involve an element of surprise that would impair []
      Appellant’s substantial rights. As such, [] Appellant should have
      been sentenced in accordance with the consequences that come
      with being convicted of 18 Pa.C.S.A. § 3122.1(a)(1) [(Current)].

Appellant’s Brief at 13.

      Appellant’s argument is unconvincing, as the record does not support

his claim that he was unfairly surprised by the court’s designating him as a

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Tier III offender. Appellant, who was born in 1971, obviously knew that he

was more than 11 years older than the victim, whose year of birth was listed

on the criminal information as being 1993.         The record also confirms that

Appellant knew the victim since she was 2½ years old, and he had acted as

a father figure to her from that age until he started sexually abusing her in

2008, when she was 14 years old and he was 36.             See N.T. Sentencing,

4/14/16, at 42. Moreover, Appellant signed a written plea agreement that

stated he would plead guilty to SSA, graded as a felony of the second

degree, and directly underneath that information, the plea agreement

stated, “more than 11 yrs older than complainant[.]” Plea Agreement,

9/17/15, at 1 (emphasis added). Additionally, the plea agreement set forth

that Appellant “must register pursuant to Adam Walsh [Act,]” i.e.,

SORNA.4 Id. (emphasis added). Thus, prior to Appellant’s entering his plea,

he was put on notice that his SSA offense under section 3122.1 (Former)

would be equated with section 3122.1(b) (Current) for SORNA purposes.

       Given this record and Appellant’s argument on appeal, he has not

demonstrated that the trial court erred by designating him as a Tier III




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4
 SORNA is sometimes referred to as the “Adam Walsh Act” because “[t]he
passage of SORNA brought Pennsylvania into compliance with the Adam
Walsh Child Protection and Safety Act of 2006, 42 U.S.C. §§ 16901-
16991….” Commonwealth v. Giannantonio, 114 A.3d 429, 432-33 (Pa.
Super. 2015).



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offender under SORNA, thus subjecting him to a lifetime registration

requirement.5
____________________________________________


5
  We recognize that each tier of SORNA, including Tier III, has a provision
stating that an offense can be classified under that tier if it is a “similar
offense … under a former law of this Commonwealth.” 42 Pa.C.S. §
9799.14(d)(3) (emphasis added). Furthermore, this Court has concluded
that, to determine if a former law “is an equivalent or similar crime” to a
current offense, “such that it qualifies as a ‘former law of the
Commonwealth’ under section 9799.14(d)(3),” we utilize “the analysis set
forth by our Supreme Court in Commonwealth v. Northrip, 985 A.2d 734,
736 (Pa. 2009).” Commonwealth v. Sampolski, 89 A.2d 1287, 1289 (Pa.
Super. 2014).

       In Northrip, our Supreme Court addressed the issue of whether
       a New York arson statute constituted an “equivalent crime” as
       Pennsylvania's comparable arson statute for purposes of
       application of Pennsylvania's “Three Strikes Law,” 42 Pa.C.S.A. §
       9714(g). Our Supreme Court held as follows:

          [T]he court must consider the elements of the foreign
          offense in terms of classification of the conduct proscribed,
          its definition of the offense, and the requirements for
          culpability. With respect to the underlying policy of the
          statutes, we hold that analysis of policy considerations is
          appropriate, though not controlling.

Sampolski, 89 A.3d at 1289 (quoting Northrip, 985 A.2d at 740 (citation
omitted)).

       Based on the argument Appellant presents to this Court, we decline to
conduct an analysis of whether Appellant’s conviction under section 3122.1
(Former) is a ‘similar’ offense (under a statutory interpretation analysis) to
section 3122.1(b) (Current). Appellant does not even cite, let alone discuss,
the Northrip test, or Sampolski’s application of that test in the SORNA
context. He also does not explain what it means for a former offense to be
‘similar’ to an enumerated offense under SORNA. Additionally, Appellant
does not argue that a comparison of section 3122.1 (Former) and section
3122.1(b) (Current) involves an analysis of only the elements of those
offenses, rather than an assessment of the actual facts underlying his
conviction, which are clearly ‘similar’ to the offense set forth in section
(Footnote Continued Next Page)


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      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/13/2017




                       _______________________
(Footnote Continued)

3122.1(b) (Current). Without any such discussion by Appellant, we limit our
review to the argument he presents, which is that his conviction is similar,
for notice purposes, only to section 3122.1(a)(1). Appellant’s Brief at 12,
13.




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