J-S12031-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DYLAN TAYLOR WHITEHILL,                    :
                                               :
                       Appellant               :       No. 774 MDA 2018

             Appeal from the Judgment of Sentence April 23, 2018
                in the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-CR-0001524-2017

BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                    FILED: APRIL 30, 2019

        Dylan Taylor Whitehill (“Whitehill”) appeals from the judgment of

sentence imposed, and his lifetime registration requirement pursuant to the

Sex Offender Registration and Notification Act (“SORNA”),1 following his open

guilty plea to aggravated indecent assault, and his negotiated guilty plea to

indecent assault.2 We affirm in part and vacate in part.

        On January 26, 2017, M.H. (“the victim”) disclosed to the Pennsylvania

State Police that he had been sexually assaulted by Whitehill sometime

between January 2006 and December 2008. The victim was between 5 and

7 years old at the time of the assault. Whitehill was between 15 and 17 years

old at the time of the assault, and 26 years old at the time of the victim’s

disclosure. Whitehill was charged with one count of involuntary deviate sexual
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1   See 42 Pa.C.S.A. §§ 9799.10-9799.41.

2   18 Pa.C.S.A. §§ 3125(a)(2), 3126(a)(7).
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intercourse with a child, and two counts each of aggravated indecent assault

and indecent assault.

      On April 23, 2018, Whitehill entered an open guilty plea to the charge

of aggravated indecent assault, and a negotiated guilty plea to the charge of

indecent assault. On the charge of aggravated indecent assault, the trial court

sentenced Whitehill to 11½ to 23½ months in prison.         On the charge of

indecent assault, Whitehill was sentenced, pursuant to the plea agreement, to

a consecutive term of five years of probation.     Additionally, Whitehill was

ordered to comply with SORNA’s registration requirements. Whitehill filed a

timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of matters complained of on appeal.

      On appeal, Whitehill raises the following issues for our review:

      I. Was the sentence illegal because the imposition of mandatory
      lifetime sex offender registration violate[s] due process when
      imposed on individuals solely for their childhood conduct?

      II. Was the sentence illegal because the imposition of mandatory
      lifetime sex offender registration constitutes cruel and unusual
      punishment when imposed for offenses committed by a child?

Brief for Appellant at 4.

      Initially, we observe that “[w]hen the legality of a sentence is at issue

on appeal, our standard of review is de novo and our scope of review is

plenary.” Commonwealth v. Mendozajr, 71 A.3d 1023, 1027 (Pa. Super.

2013) (citation and quotation marks omitted). “An illegal sentence must be

vacated.”   Commonwealth v. Mears, 972 A.2d 1210, 1211 (Pa. Super.

2009) (citation omitted).

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       Prior to addressing the issues raised by Whitehill, we sua sponte address

whether our Supreme Court’s holding in Commonwealth v. Muniz, 164 A.3d

1189 (Pa. 2017), renders Whitehill’s sentence illegal, as a violation of

Pennsylvania Constitution’s ex post facto clause.           See Commonwealth v.

Butler, 173 A.3d 1212, 1214 (Pa. Super. 2017) (stating that “ a challenge to

the legality of a particular sentence may be reviewed by any court on direct

appeal; it need not be preserved in the lower courts to be reviewable and may

even be raised by an appellate court sua sponte.”) (citation, quotation marks

and brackets omitted).

       In Muniz, the defendant was convicted of indecent assault in 2007, at

which time Megan’s Law III was in effect. See Commonwealth v. Muniz,

164 A.3d 1189, 1193 (Pa. 2017).                The appellant failed to appear for his

sentencing hearing, and was not apprehended and sentenced until 2014, at

which time SORNA was effective.3 Id. The trial court sentenced the defendant

and ordered him to comply with SORNA.                  On review, the Pennsylvania

Supreme Court stated that SORNA effectively inflicted greater punishment

than Megan’s Law III, the statute in effect at the time the defendant

committed his crimes. Id. at 1210-18. As a result, the Court held, retroactive

application of SORNA to the appellant, who had committed his crimes prior to

the enactment of SORNA, violated the ex post facto clauses of both the United

States and Pennsylvania Constitutions. Id. at 1218, 1223.

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3   Megan’s Law III was replaced by SORNA on December 20, 2012.

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        Here, Whitehill committed his crimes between 2006 and 2008, prior to

the enactment of SORNA. Whitehill pled guilty to the offenses in 2018, after

SORNA became effective in 2012.                Similar to the appellant in Muniz, had

Whitehill been sentenced prior to SORNA’s enactment, he would have been

subject to the less burdensome and stringent requirements of Megan’s Law

III. Because SORNA inflicts greater punishment than Megan’s Law III, and

the trial court retroactively applied SORNA to Whitehill, we conclude that

applying SORNA to Whitehill would violate the ex post facto clause of the

United     States   and   Pennsylvania         constitutions.   See Muniz,    supra.

Accordingly, we vacate the trial court’s judgment of sentence to the extent

that it ordered Whitehill to comply with SORNA, and we remand to the trial

court to determine Whitehill’s registration requirements, in accordance with

this Memorandum.4

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

with instructions. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/2019


____________________________________________


4   In light of our disposition, we need not address Whitehill’s issues on appeal.


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