J-S30039-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

THOMAS MICHAEL LUTZ-MORRISON

                            Appellant                  No. 1659 MDA 2013


            Appeal from the Judgment of Sentence August 16, 2013
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0003611-2012


BEFORE: BENDER, P.J.E., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                         FILED SEPTEMBER 18, 2014
                                                                             1



requires individuals with one conviction for sexual abuse of children under 18

Pa.C.S. § 6312 to register as a Tier I sex offender for fifteen years. SORNA

requires individuals with more than one conviction under section 6312 to

register as a Tier III sex offender for life.

        Thomas Lutz-Morrison pled guilty to three felony counts of sexual

abuse of children (possession of child pornography)2. All three felonies took

place during one criminal episode. The trial court ordered Lutz-Morrison to

register as a Tier III lifetime sexual offender.
____________________________________________


1
    42 Pa.C.S. § 9799 et seq.
2
    18 Pa.C.S. § 6312(d.1).
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requirement applies to Lutz-Morrison due to his multiple convictions under

                                               -year registration requirement

applies because all three offenses took place during one criminal episode and

his guilty plea to these offenses occurred during a single hearing.


      As of this date, our Supreme Court has not handed down a binding

decision on this question. Therefore, our own precedent in Commonwealth

v. Merolla, 909 A.2d 337 (Pa.Super.2006), controls the outcome of this

appeal.   Merolla                              nolo contendere pleas to two

separate counts of indecent assault entered at the same time constituted




language requires a different interpretation of SORNA than our construction

                       Merolla.

registration requirements apply to Lutz-Morrison due to his three convictions

under 18 Pa.C.S. § 6312.


      The trial court summarized the relevant factual and procedural history

as follows:


                    On October 6, 2011, Detective Bradley Ortenzi
              of the Ephrata Police Department identified the IP
              address of a computer on which known child
              pornography files had been found through a search
              of the Gnutella (a P2P network) network. On
              December 1, 2011, Det. Ortenzi notified Detective

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              Keith Neff of the East Cocalico Police Department of
              the files he had found, as well as the IP address and
              other identifying information for the computer.
              Through investigation, Det. Neff learned the address
              of the subscriber for the IP address corresponding to
              the computer. The address fell within the jurisdiction
              of the Manheim Township Police Department and the
              investigation was assigned to Detective Sergeant
              Keith Kreider.

                     On February 24, 2012, Det. Sgt. Kreider
              prepared a search warrant for the residence that was
              signed by MDJ Sponaugle. On March 2, 2012, Det.
              Sgt. Kreider executed the search warrant and seized
              four computer systems and an Apple [i]Phone. A
              forensic examination conducted on the computer
              systems resulted in the identification of 142 child
              pornography videos and 45 child pornography
              images from the computer and 15 child pornography
              images from the Apple [i]Phone. On March 2, 2012,
              Dets. Ortenzi and Neff met with [Lutz-Morrison] and,
              after Miranda[3] warnings were issued, [Lutz-
              Morrison] admitted to downloading and saving child
              pornography files for his personal use and
              gratification.

                    [Lutz-Morrison] was charged with 77 counts of
              Sexual Abuse of Children         Possession of Child
              Pornography. On August 16, 2013, [Lutz-Morrison]
              pled guilty to three counts of Possession of Child
              Pornography. He was sentenced to a year of
              probation on each count, with the sentences to run
              consecutively. He was also informed of his status as
              a Tier III offender under the [SORNA,] also known as
                                  and the corresponding lifetime
              registration requirements. The instant appeal
              followed.

                                          -2 (internal citations omitted).

____________________________________________


3
    Miranda v. Arizona, 384 U.S. 436 (1966).



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        Lutz-Morrison filed a timely appeal and a timely Pa.R.A.P. 1925(b)

statement asserting the trial court erred by classifying him as a Tier III

offender rather than a Tier I offender when he pled guilty to the

aforementioned three counts in the context of a single nonviolent criminal

episode. The trial court has also complied with Rule 1925. The sole issue in

Lutz-

reporting requirements under 42 Pa.C.S. § 9799.15. This issue presents a

question of law as to statutory interpretation.       Our scope of review is

plenary, and our standard of review is de novo.           Commonwealth v.

Gerald, 47 A.3d 858, 859 (Pa.Super.2012).

        The object of statutory interpretation is to ascertain the intention of

the General Assembly, and the plain language of the statute is generally the

best indicator of such intent. 1 Pa.C.S. § 1921(a), (b). The words of a

statute shall be construed according to rules of grammar and according to

their common and approved usage. 1 Pa.C.S. § 1903(a). We will only look

beyond the plain meaning of the statute where the words of the statute are

unclear or ambiguous. 1 Pa.C.S. § 1921(c); see also Commonwealth v.

Diodoro, 970 A.2d 1100, 1106 (Pa.2009). Every statute shall be construed,

if possible, to give effect to all its provisions, and when ascertaining

legislative intent, there is a presumption that the General Assembly does not

intend a result that is absurd, impossible of execution or unreasonable. 1

Pa.C.S. § 1922(1).


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      If, however, the plain language of a statute reveals ambiguity, then we

may look beyond the plain meaning of the statute. See 1 Pa.C.S. § 1921(c);

Diodoro, 970 A.2d at 1106. We employ a number of tools to facilitate

interpretation, including the occasion and necessity for the statute; the

circumstances under which it was enacted; the mischief to be remedied; the

object to be attained; former law, if any, including other statutes upon the

same or similar subjects; the consequences of a particular interpretation;

the contemporaneous legislative history; and any available legislative and

administrative interpretations of the statute in question.      1 Pa.C.S. §

1921(c).



Supreme Court held unconstitutional in 1999 in Commonwealth v.

Williams, 733 A.2d 593 (Pa.1999); Me

Court found constitutional in Commonwealth v. Williams, 832 A.2d 962

(Pa.2003); and

on December 20, 2011, the legislature enacted SORNA, which became

effective on December 20, 2012. SORNA requires offenders to register with

state police and notify community authorities in the area where they reside.

42 Pa.C.S. § 9799.15. The time period for which a particular offender must

register depends on whether he has been convicted of a Tier I, Tier II, or

Tier III sexual offense. Id.




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     An individual convicted of a Tier I sexual offense must register as a

sex offender for a period of 15 years. 42 Pa.C.S.A. § 9799.15(a)(1). The

crime for which Lutz-Morrison pled guilty, sexual abuse of children

possession of child pornography, 18 Pa.C.S. § 6312(d.1), is a Tier I sexual

offense. 42 Pa.C.S.A. § 9799.14(b)(9).




9799.14(d)(16). A Tier III offender must register as a sex offender for life.

42 Pa.C.S. § 9799.15(a)(3).

     Lutz-Morrison pled guilty to three separate counts of possession of

child pornography. The Commonwealth argues that Lutz-

plea for

once it was accepted by the [t]rial [c]ourt and sentence was imposed,



Commonwealth further argues that Lutz-Morrison ha

convictions for an offense listed as Tier I and is consequently a Tier III

                                                                   Id. Lutz-



apply where, as here, the prosecuted offenses and resulting convictions

arose from a single proceeding.    He further contends that the trial court

erred by imposing the lifetime registration requirement because he pled

guilty to three counts of sexual abuse of children at the same time and,


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thus, his convictions should be viewed as a singular conviction for SORNA

purposes.

      As of this date, our Supreme Court has not issued a definitive decision

on this subject.     Two years ago, the Court, with only six Justices

participating, deadlocked 3-3 on a similar question.      Commonwealth v.

Gehris, 54 A.3d 862 (Pa.2012). There, the adult defendant

            repeatedly engaged in communications of an explicit
            sexual nature regarding an individual whom he
            believed to be a 13 year old girl. In these
            conversations, he graphically detailed his fantasies of
            having sexual encounters with a young girl, solicited
            nude pictures of the person he thought was the 13
            year old girl, mailed a digital camera with a picture
            of his penis loaded therein to the person he thought
            was the 13 year old girl, methodically arranged a
            meeting with the person he believed to be the 13
            year old girl at a motel room over 200 miles away
            from his home, and drove continuously for an entire
            day specifically to have sex in the motel room with
            both the person he thought was the 13 year old
            girl, and the person whom he believed to be her 19
            year old friend.

Id

guilty to (1) criminal solicitation for the sexual exploitation of children in

violation of 18 Pa.C.S. §§ 902(a) and 6320 for soliciting the state officer

whom be believed to be a 19-year-old to procure the 13-year-old for sexual

exploitation; (2) criminal solicitation for the sexual abuse of children in

violation of sections 902(a) and 6312 for soliciting the state officer whom be

believed to be a 19-year-old to obtain nude photographs of the 13-year-old;

(3) criminal solicitation for the corruption of a minor in violation of section

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902(a) and 18 Pa.C.S. § 6301(a) for soliciting the state officer whom be

believed to be a 19-year-old to obtain a 13-year-old for sexual activity; and

(4) criminal attempt of the corruption of a minor in violation of 18 Pa.C.S. §

901 and section 6301(a), for driving to the motel to engage in the planned

sexual activity. Because Gehris was guilty of both the criminal solicitation

for the sexual exploitation of children and criminal solicitation for the sexual

abuse of children, the trial court found that he was subject to the lifetime

registration requirement of former section 9795.1(b)(1) of the Sentencing




                                                          t register as a sex

offender for a period of 10 years.        Each of the offenses to which the

defendant pled guilty was a Tier I offense.         However, former section

                            n individual with two or more convictions of any

of the offenses set fo

was subject to lifetime registration.

      Justice Todd, joined by Justices Eakin and McCaffery, opined in the

OISA that the defendant, who stood convicted of more than one Tier I

offense, was required under the plain language of section 9795.1(b) to

register as a lifetime sex offender:

            The plain language of Section 9795.1(b)(1) specifies:

            registration: (1) An individual with two or more
            convictions of any of the offenses set forth in

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            accordance with its commonly understood and
            ordinary meaning, requires any individual who is
            convicted two or more times of the particular
            offenses set forth in subsection (a) to register for
            life. Relevant to the question of whether the
            legislature intended to require lifetime registration in
            situations where the multiple convictions stemmed
            from acts which were part of one criminal episode, I
            deem the legislature, through the use of the

            more convictions of any of the offenses set forth in

            particular sequential or temporal ordering of the
            multiple convictions in order for the lifetime
            registration requirements to apply. Rather, the
            legislature simply mandated that, at the point in
            time at which a defendant acquires two or more
            convictions for specified sexual offenses against
            children, the registration requirement is triggered.
            Since the legislature decided not to include language
            implicating the timing of the convictions, I do not
            believe we may judicially engraft such a
            requirement.

Id. at 866.     Chief Justice Castille, joined by Justices Saylor and Baer,




of the ten-year registration requirement so long as it is clear that the

offenses were part of the                                              Id. at 879.

Chief Justice Castille wrote:

            Without in any way condoning the criminal conduct
            that led appellant to his current circumstances, we
            would conclude that the record in this case directs
            application of the ten-year registration requirement.
            Appellant's two Megan's Law offenses were
            nonviolent,    perhaps   triggered    by   situational
            problems in his marriage and career, and arose out

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           of the same course of conduct, which ultimately did
           not result in direct harm to any actual victims.
           Appellant had no criminal past, much less a history
           of Megan's Law offenses, and was taken into custody
           without resisting. In open court, he expressed
           remorse and regret and accepted responsibility for
           his actions. He voluntarily undertook psychotherapy
           and has embraced the treatment, was not found to
           be a sexually violent predator and, in fact, was
           described by a former SOAB member as a good
           candidate for rehabilitation. It is true that appellant

           subsection (a) offenses, and without consideration of
           how this statutory scheme falls within the sphere of
           recidivist philosophy legislation detailed above, a
           strict, mechanical application of Section 9795.1(b)
           would result in imposition of the lifetime registration
           requirement. But, we would conclude that Section
           9795.1 embodies the recidivist philosophy and
           reflects a belief that first-time and lesser offenders
           are capable of reform and rehabilitation if given an
           opportunity to do so under the still-punitive aegis of
           relatively lighter discipline, as well as the threat of
           harsher treatment next time, should there be a next
           time.

Id.

      Since Gehris resulted in a 3-3 decision, it is not binding precedent.

Commonwealth v. Covil, 378 A.2d 841, 844 (Pa.1977) (opinion of

affirmance of equally divided court has no precedential value).

      In July 2013, the Supreme Court granted allocatur in Commonwealth

v. Mielnicki, 45 MAP 2013, to address the same issue that deadlocked the

Gehris court.   The defendant in Mielnicki pled guilty to five counts of

sexual abuse of children, 18 Pa.C.S. § 6312(d), for possession of child

pornography between December 8, 2009 and February 10, 2010.            See


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Commonwealth v. Mielnicki, 721 EDA 2011, slip op., p. 2 (Pa.Super.,

June 13, 2012). The trial court found that the defendant was subject to the

lifetime registration requirement of former section 9795.1(b)(1) of the



and argued that the trial court erred by ordering lifetime registration when

(1) he had no prior convictions predating the current offenses, and (2) he



single investigation, bill of information and prosecution   Id. at 2-3. Relying

on Merolla, a panel of this Court held that under the plain language of

section 9795.1, the defendant was required to register as a lifetime offender

because he had more than one conviction for a Tier I offense, even though

the charges emanated from a single criminal episode and he pled guilty to

these offenses during the same plea hearing. Id. at 3-4.

      The parties in Mielnicki

the Supreme Court and have advocated their positions at oral argument.



      In the absence of binding authority from the Supreme Court, our

decision in Merolla continues to remain precedential authority. We held in

Merolla that where the defendant pled nolo contendere to two separate

counts of indecent assault, albeit at the same plea hearing, he had two

convictions of that offense for purposes of Section 9795.1.          The plain

language of section 9795.1, we observed, requires a defendant who is


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convicted of more than one Tier I offense to register as a lifetime offender,

even if both convictions take place at the same hearing. We distinguished

                                       Commonwealth v. Shiffler, 879 A.2d 185

(2005), which held that the mandatory minimum sentence requirement of

the Three Strikes Statute4 embodies a recidivist philosophy under which a

defendant could not be sentenced as a repeat offender unless he (1)

committed a first offense, then (2) was convicted and sentenced for the first

offense, then (3) committed a second offense, and then (4) was convicted

and sentenced for the second offense. Id. at 347. We reasoned that the

language and purpose of section 9795.1 and the Three Strikes Law are

different:


              person had at the time of the commission of the
              current offense previously been convicted of two or


              Law II is distinguishable from the language of the
              Three Strikes Statute as
              require a previous conviction. Moreover, the

              from that of the Three Strikes Statute. Whereas

              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 discipl[ine] . . . .



____________________________________________


4
    42 Pa.C.S. § 9714.



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Id., 909 A.2d at 346-

Strikes Law, did not embody a recidivist philosophy.

                                                         Merolla applies with



language does not embody a recidivist philosophy. SORNA simply provides

that defendants with multiple convictions for Tier I sexual offenses are Tier

III offenders who must register as sexual offenders for life. 42 Pa.C.S. §§

9799.14, 9799.15. Therefore, based on                  reasoning, we hold that

Lutz-Morrison must register as a lifetime offender under SORNA due to his

three convictions for sexual abuse of children under 18 Pa.C.S. § 63125.

____________________________________________


5
   Recently, in A.S. v. Pennsylvania State Police, 87 A.3d 914
(Pa.Cmwlth.2014) (en banc), a 21-year-old adult male pled guilty to two
sexual offenses relating to a 16-year-old minor arising from a single criminal
episode. Id. at 921-22. The defendant

              admitted that he met the victim online, developed a
              relationship with her which led to consensual sex,
              and that he persuaded the victim to take
              photographs of herself in various sexual positions

              digital camera to photograph the two engaging in
              sexual relations.

Id. at 916.     The Commonwealth Court held, 5-2, that the Tier I 15-year

interpretation of SORNA in Gehris.

We decline to follow A.S., because Commonwealth Court decisions are not
binding on this Court, Commonwealth v. Rodriguez, 81 A.3d 103, 107 n.
7 (Pa.Super.2013), and because we are bound by our decision in Merolla
for the reasons given above.



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     Order affirmed.

     PJE Bender joins in the memorandum.

     Judge Mundy concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2014




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