J-S24002-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37


 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 CHRISTY L. SMITH                         :
                                          :
                    Appellant             :   No. 1315 MDA 2017

            Appeal from the Judgment of Sentence July 31, 2017
             In the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0005216-2010


BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                       FILED SEPTEMBER 24, 2018

      Appellant, Christy L. Smith appeals from the judgment of sentence

entered on July 21, 2017, as made final by the denial of her post-sentence

motion on August 7, 2017. Appellant argues that her sentence was excessive

and that she is not subject to the registration requirements under the Sexual

Offender Registration and Notification Act (“SORNA”) set forth in Title 42, Part

VII, Chapter 97, Subchapter H (“Subchapter H”) because retroactive

application of these requirements violates the ex post facto clause. After

careful consideration, we hold that the trial court did not abuse its discretion

in sentencing Appellant; however, imposition of Subchapter H’s registration

requirements violated the ex post facto clause. Accordingly, we affirm in part,

vacate in part, and remand for further proceedings consistent with this

memorandum.
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        This Court explained that:

        In 2008, J.J., a 15-year-old sophomore at a public school in
        Lancaster, was a student in Appellant’s English class. J.J. confided
        in Appellant, first spending a significant amount of time with her
        at school during and after normal school hours. Later, J.J. began
        to see Appellant outside of school as well. Eventually, their
        relationship took on a sexual dimension. J.J. testified that he
        engaged in three sexual encounters with Appellant. During the
        first occasion, in November of 2008, the two engaged in oral and
        vaginal intercourse. Later that same month, the two showered
        together, engaged in oral and vaginal intercourse and, at one
        point, Appellant used a vibrating sex toy on J.J. On the third
        occasion, during Christmas break the following month, Appellant
        and J.J. showered together and then engaged in oral and vaginal
        intercourse. The sexual contact between the two ended in January
        of 2009 as a result of an investigation by the school district into
        their relationship.

Commonwealth v. Smith, 87 A.3d 890 (Pa. Super. 2013) (unpublished

memorandum), at 2 (internal citations omitted).

        On July 6, 2012, the Commonwealth charged Appellant via an amended

criminal information with six counts of involuntary deviate sexual intercourse,1

three counts of statutory sexual assault,2 three counts of unlawful contact with

a minor,3 and one count of corruption of minors.4 Appellant was also charged

with offenses related to her relationship with another student. The cases were

consolidated for trial and the trial court denied Appellant’s motion to sever the




1   18 Pa.C.S.A. § 3123(a)(7).

2   18 Pa.C.S.A. § 3122.1.

3   18 Pa.C.S.A. § 6318(a)(7).

4   18 Pa.C.S.A. § 6301(a)(1).


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charges involving J.J. from the charges involving the other student. Appellant

was convicted; however, this Court vacated Appellant’s judgment of sentence

after concluding that the trial court erred by denying her motion to sever. See

id. at 8-18.

      On remand, Appellant proceeded to trial on the instant criminal

information.   On March 26, 2014, she was convicted of two counts of

involuntary deviate sexual intercourse, one count of statutory sexual assault,

one count of unlawful contact with a minor, and one count of corruption of

minors. On May 20, 2014, the trial court sentenced her to an aggregate term

of 14 to 30 years’ imprisonment. This Court affirmed and our Supreme Court

denied allowance of appeal. Commonwealth v. Smith, 121 A.3d 1144, 2015

WL 6166608 (Pa. Super. 2015) (unpublished memorandum), appeal denied,

125 A.3d 1201 (Pa. 2015).

      Appellant filed a timely Post-Conviction Relief Act (“PCRA”) petition and,

on March 30, 2017, the PCRA court granted relief on Appellant’s claim that

she received an illegal sentence and denied the petition in all other respects.

On July 31, 2017, the trial court sentenced Appellant to an aggregate term of

14 to 28 years’ imprisonment. It also informed Appellant that she was subject

to Subchapter H’s registration requirements. Appellant filed a post-sentence




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motion and the trial court denied that motion on August 7, 2017. This timely

appeal followed.5

       Appellant presents two issues for our review:

    1. Whether the imposition of consecutive sentences resulting in an
       aggregate sentence of [14 to 28 years’ imprisonment] was clearly
       unreasonable and manifestly excessive?

    2. [Whether the trial court erred by notifying Appellant that she was
       subject to SORNA’s Subchapter H registration requirements?]

Appellant’s Brief at 5 (complete capitalization removed).

       In her first issue, Appellant argues that she received an excessive

sentence. This issue challenges the discretionary aspects of her sentence.

Pursuant to statute, Appellant does not have an automatic right to appeal the

discretionary aspects of her sentence. See 42 Pa.C.S.A. § 9781(b). Instead,

Appellant must petition this Court for permission to appeal the discretionary

aspects of her sentence. Id.

       In order to reach the merits of a discretionary aspects claim,

       we must engage in a four part analysis to determine: (1) whether
       the appeal is timely; (2) whether the appellant preserved his or
       her issue; (3) whether the appellant’s brief includes a concise
       statement of the reasons relied upon for allowance of appeal with
       respect to the discretionary aspects of sentence; and (4) whether
       the concise statement raises a substantial question that the
       sentence is appropriate under the Sentencing Code.




5 On August 22, 2017, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b).    On August 28, 2017, Appellant filed her concise
statement. On November 6, 2017, the trial court issued its Rule 1925(a)
opinion. Both of Appellant’s issues were included in her concise statement.


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Commonwealth v. Foust, 180 A.3d 416, 439 (Pa. Super. 2018) (cleaned

up). Appellant filed a timely notice of appeal, preserved the issue in her post-

sentence motion, and included a Pennsylvania Rule of Appellate Procedure

2119(f) statement in her appellate brief. Thus, we turn to whether Appellant

raises a substantial question related to the discretionary aspects of her

sentence.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Radecki, 180 A.3d

441, 468 (Pa. Super. 2018) (citation omitted).       “A substantial question is

raised when an appellant advances a colorable argument that the trial court’s

actions were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the sentencing

process.” Commonwealth v. Patterson, 180 A.3d 1217, 1232 (Pa. Super.

2018) (cleaned up).

      In her Rule 2119(f) statement, Appellant argues that this case presents

a substantial question because imposition of consecutive sentences for

multiple sexual misconduct convictions was clearly unreasonable and resulted

in an excessive sentence. This argument presents a substantial question. See

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013), appeal

denied, 91 A.3d 161 (Pa. 2014).       Accordingly, we proceed to analyze the

merits of Appellant’s discretionary aspects challenge.




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      “Sentencing is a matter vested in the sound discretion of the [trial

court], and a sentence will not be disturbed on appeal absent a manifest abuse

of discretion.” Commonwealth v. Barnes, 167 A.3d 110, 122 (Pa. Super.

2017) (en banc) (citation omitted).       Pursuant to statute, “the sentence

imposed should call for confinement that is consistent with the protection of

the public, the gravity of the offense as it relates to the impact on the life of

the victim and on the community, and the rehabilitative needs of the

defendant.” 42 Pa.C.S.A. § 9721(b).         “The [trial] court is not required to

parrot the words of the Sentencing Code, stating every factor that must be

considered under Section 9721(b), however, the record as a whole must

reflect due consideration by the court of the statutory considerations at the

time of sentencing.” Commonwealth v. Bullock, 170 A.3d 1109, 1126 (Pa.

Super. 2017), appeal denied, 184 A.3d 944 (Pa. 2018) (cleaned up).

Moreover, when a trial court reviews a presentence investigation report prior

to imposing a sentence, “we can assume the trial court was aware of the

relevant information regarding the defendant’s character and weighed those

considerations along with mitigating statutory factors.” Radecki, 180 A.3d at

471 (cleaned up).

      When sentencing a defendant, the trial court is required to consider the

sentencing guidelines.   Commonwealth v. Melvin, 172 A.3d 14, 21 (Pa.

Super. 2017) (citation omitted). Because the trial court sentenced Appellant

within the sentencing guidelines, she is only entitled to relief on her



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discretionary aspects claim if “the application of the guidelines would be

clearly unreasonable[.]” 42 Pa.C.S.A. § 9781(c)(2).

      Appellant argues that an aggregate sentence of 14 to 28 years’

imprisonment for her sexual contact with J.J. was manifestly excessive and

clearly unreasonable. We disagree. Contrary to Appellant’s argument, these

charges did not arise from a “consensual” relationship with J.J.         See

Appellant’s Brief at 9. Our General Assembly has determined that individuals

under the age of 16 are incapable of consenting to sexual contact with an

adult who is at least four years older. See Commonwealth v. Parsons, 969

A.2d 1259, 1271 (Pa. Super. 2009) (en banc), appeal denied, 982 A.2d 1228

(Pa. 2009). The trial court had ample grounds to impose a lengthy sentence

in this case given that Appellant used her position of trust and her knowledge

of J.J.’s mental health status to engage in a non-consensual sexual

relationship with a minor.

      The trial court reviewed statements by J.J. and his grandmother. These

statements showed that J.J. suffered severe emotional distress as a result of

his sexual contact with Appellant. The trial court also found that Appellant

knew J.J. suffered from mental health problems at the time of the assaults

and encouraged him not to take his prescribed medications.6 Appellant then

repeatedly engaged in oral sex and vaginal intercourse with him.


6 Although Appellant views the evidence differently, at trial there was
testimony that Appellant told J.J. he probably did not need to take the
medication.


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      Appellant notes that she had no prior criminal record and had been an

exemplary inmate. The trial court, however, explicitly considered the lack of

a past criminal history.   See N.T., 5/20/14, at 19.7      Hence, contrary to

Appellant’s argument, this case is not analogous to those cases in which trial

courts focused only on the nature of the defendants’ crimes. Instead, the trial

court weighed the relevant statutory factors and found that two factors, the

nature of the crime and the impact of the crime on the victim, deserved

significant weight. We ascertain no abuse of discretion in this weighing of the

relevant sentencing factors.

      Although Appellant acknowledges the trial court had the authority to

impose separate sentences for different criminal offenses, she argues that

running the sentences consecutively was an error.       It is well-settled that

“imposition of consecutive rather than concurrent sentences rests within the

trial court’s discretion.” Commonwealth v. Harvard, 64 A.3d 690, 703 (Pa.

Super. 2013), appeal denied, 77 A.3d 636 (Pa. 2013) (citation omitted).

Moreover, extensive case law in this jurisdiction holds that defendants

convicted of multiple offenses are not entitled to a “volume discount” on their

aggregate sentence. E.g. Commonwealth v. Green, 149 A.3d 43, 54 (Pa.

Super. 2016), appeal denied, 168 A.3d 1255 (Pa. 2017) (citation omitted). In

this case, Appellant committed multiple sexual offenses, on multiple




7 The trial court incorporated by reference this testimony from the 2014
sentencing hearing at the 2017 sentencing hearing. See N.T., 7/31/17, at 3.


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occasions, and the trial court reasonably found that separate, consecutive

punishments were appropriate.

      Appellant betrayed the trust of her community and her students by

engaging in repeated sexual contact with J.J. Her conduct has left him with

emotional scars that may never heal. Under these circumstances, a sentence

of 14 to 28 years’ imprisonment, which is within the guidelines range, was not

clearly unreasonable.    Hence, Appellant is not entitled to relief on her

discretionary aspects claim.

      In her second issue, Appellant argues that the trial court erred by

requiring her to comply with Subchapter H’s registration requirements.

Specifically, she argues that, because her offenses occurred prior to SORNA’s

effective date, application of Subchapter H’s registration requirements violates

the ex post facto clause. This presents a pure question of law; therefore, our

standard of review is de novo and our scope of review is plenary.

Commonwealth v. Muniz, 164 A.3d 1189, 1195 (Pa. 2017).

      In Appellant’s view, it is immaterial that she was ultimately convicted,

and sentenced, after SORNA’s effective date.      According to Appellant, our

Supreme Court’s decision in Muniz controls and she is not subject to

Subchapter H’s registration requirements because she committed the instant

offenses prior to SORNA’s effective date.          On the other hand, the

Commonwealth contends that Pennsylvania Acts 10 and 29 of 2018 cured the

constitutional defects our Supreme Court identified in Muniz and that



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requiring   Appellant    to   comply   with     the   newly   created   registration

requirements set forth at 42 Pa.C.S.A. § 9799.51 et seq. does not violate the

ex post facto clause.8

      In Muniz, our Supreme Court held that SORNA’s Subchapter H

registration requirements were punitive and, therefore, criminal in nature.

Hence, our Supreme Court held that retroactive application of Subchapter H’s

registration requirements to defendants whose crimes occurred prior to

SORNA’s effective date violated the ex post facto clause.

      Appellant was convicted of committing offenses that occurred prior to

SORNA’s effective date. Hence, Appellant’s sentence was illegal because it

required her to comply with Subchapter H’s registration requirements. We

therefore vacate the portion of Appellant’s judgment of sentence requiring her

to register under Subchapter H.        We remand to the trial court where the

Commonwealth may argue that Appellant is subject to the registration


8
  In response to our Supreme Court’s decision in Muniz and this Court’s
decision in Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017),
appeal granted, 2018 WL 3633945 (Pa. July 31, 2018) (holding that certain
of the sexually violent predator provisions of SORNA were constitutionally
infirm), the Pennsylvania General Assembly passed Acts 10 and 29 of 2018.
The express purpose of both legislative enactments was to cure SORNA’s
constitutional defects. See 42 Pa.C.S.A. § 9799.51(b)(4) (“it is the intention
of the General Assembly to address [Muniz and Butler].”) Specifically, our
General Assembly modified Subchapter H’s registration requirements for those
offenders convicted of committing offenses that occurred on or after SORNA’s
effective date, i.e., December 20, 2012. Our General Assembly also added
Subchapter I to Title 42, Part VII, Chapter 97. Subchapter I sets forth the
registration requirements that apply to all offenders convicted of committing
offenses on or after Megan’s Law I’s effective date (April 22, 1996), but prior
to SORNA’s effective date.


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requirements set forth in Subchapter I, 42 Pa.C.S.A. § 9799.51 et seq. We

affirm the judgment of sentence in all other respects.

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

remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2018




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