J-S04038-19

                                   2019 PA Super 69

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JALANI DUPREE MARTIN                       :
                                               :
                       Appellant               :   No. 1150 MDA 2018

          Appeal from the Judgment of Sentence Entered May 29, 2018
    In the Court of Common Pleas of Cumberland County Criminal Division at
                        No(s): CP-21-CR-0004116-2017


BEFORE:      SHOGAN, J., OTT, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                             FILED MARCH 07, 2019

       Appellant Jalani Dupree Martin appeals from the judgment of sentence

entered in the Court of Common Pleas of Cumberland County on May 29,

2018, after he pled guilty to one count of indecent assault without consent,

graded as a second-degree misdemeanor.1 Appellant claims that his fifteen-

year registration requirement under the Sex Offender Registration and

Notification Act (SORNA)2 is illegal. Appellant argues the trial court could not

order registration in excess of the maximum possible incarceration period of


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1  18 Pa.C.S.A. § 3126(a)(1).      Appellant also had been charged with
aggravated indecent assault without consent, pursuant to 18 Pa.C.S.A. §
3125(a)(1); aggravated indecent assault where complainant is unconscious or
unaware that penetration is occurring, pursuant to 18 Pa.C.S.A.§ 3125(a)(4);
and indecent assault where the person is unconscious, pursuant to 18
Pa.C.S.A.§ 3126(a)(4). The Affidavit of Probable Cause indicates the offenses
occurred on June 13, 2017.
2 42 Pa.C.S.A. § 9799.10 et seq.




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* Former Justice specially assigned to the Superior Court.
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two years for a misdemeanor of the second degree as codified at 18 Pa.C.S.A.

§ 1104(2). As this Court recently has rejected that legal theory, we affirm.3

       Because our disposition concerns questions of law, a lengthy recitation

of the factual history is not necessary to our disposition. Following his guilty

plea, Appellant was sentenced to thirty (30) days to six (6) months in prison

and received 161 days credit for time served.         Appellant also received a

consecutive term of eighteen (18) months of supervised probation and was

ordered to comply with SORNA’s reporting and registration requirements.

       On June 1, 2018, Appellant filed a timely Motion to Modify Sentence

wherein he argued his sex offender designation and the resulting reporting

and registration requirements pursuant to SORNA are unconstitutional

punishments      under     the    Pennsylvania   Supreme   Court’s   decision   in

Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017). The


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3 Relying on two other decisions of the Court of Common Pleas of Cumberland
County, CP-21-CR-3113-2016 and CP-21-CR339-2017, trial court found no
merit to Appellant’s claims.      The court stressed that the holding in
Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017) is irrelevant
herein as Appellant’s offense was committed after the most recent enactment
of SORNA and reasoned that the reporting requirements were more akin to
probation than to incarceration; thus, double jeopardy concerns were not
implicated. Trial Court Opinion, 9/6/18, at 3-4. “[A]n appellate court is not
bound by the rationale of the trial court and may affirm on any basis if the
record supports it.” Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa.Super.
2018).




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Commonwealth filed its Answer on July 2, 2018, and in its Order entered on

July 5, 2018, the trial court denied the Motion.

        On July 13, 2018, Appellant filed a timely notice of appeal. On July 16,

2018, the trial court ordered Appellant to file a concise statement of errors

complained of on appeal, and Appellant complied on July 26, 2018, wherein

he raised seven (7) issues.         In his appellate brief, Appellant presents the

following Statement of the Questions Involved:


        I.    Is [Appellant’s] sentence of fifteen (15) years of punishment
        pursuant to SORNA illegal since SORNA is not a sentencing
        alternative authorized by Section 9721 of the Judicial Code[4] and
        the trial court therefore lacked authority to impose such a
        sentence?

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4   Pertaining to sentencing, this statute reads, in relevant part, as follows:

        § 9721. Sentencing generally

         (a)   General rule.--In determining the sentence to be imposed
               the court shall, except as provided in subsection (a.1),
               consider and select one or more of the following
               alternatives, and may impose them consecutively or
               concurrently:

               (1)   An order of probation.
               (2)   A determination of guilt without further penalty.
               (3)   Partial confinement.
               (4)   Total confinement.
               (5)   A fine.
               (6)   County intermediate punishment.
               (7)   State intermediate punishment.

42 Pa.C.S.A. § 9721(a).




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        II.   Is [Appellant’s] sentence of fifteen (15) years of punishment
        pursuant to SORNA illegal since the statutory maximum for a
        misdemeanor of the second degree as codified in Section 1104 of
        the Criminal Code[5] is two (2) years?

        III. Is [Appellant’s] sentence of fifteen (15) years of punishment
        pursuant to SORNA a violation of both the Sixth and Fourteenth
        Amendments to the United States Constitution as the penalty
        imposed was increased beyond the prescribed statutory maximum
        based upon the General Assembly’s factual determination that
        [Appellant] “pose[s] a high risk of committing additional sexual
        offenses,” 42 Pa.C.S. § 9799.11(a)(4), a fact that was not
        submitted to the jury nor proven beyond a reasonable doubt as
        required by Apprendi v. New Jersey, 530 U.S. 466 (2000)?[6]


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5   Found at 18 Pa.C.S.A. § 1104, this statute reads as follows:

§ 1104. Sentence of imprisonment for misdemeanors

        A person who has been convicted of a misdemeanor may be
        sentenced to imprisonment for a definite term which shall be fixed
        by the court and shall be not more than:

           (1) Five years in the case of a misdemeanor of the first degree.
           (2) Two years in the case of a misdemeanor of the second
           degree.
           (3) One year in the case of a misdemeanor of the third degree.


6 In Commonwealth v. Butler, 173 A.3d 1212, 1216–17 (Pa.Super. 2017),
reargument denied (Jan. 3, 2018), appeal granted, 190 A.3d 581 (Pa. 2018),
this Court recently reiterated:

        In Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
        L.Ed.2d 435 (2000) ], the Supreme Court of the United States
        held that other than the fact of a prior conviction, any fact that
        increases the penalty for a crime beyond the prescribed statutory
        maximum must be submitted to a jury, and proved beyond a
        reasonable doubt. Stated another way, it is unconstitutional for a
        legislature to remove from the jury the assessment of facts that
        increase the prescribed range of penalties to which a criminal



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Brief for Appellant at 6. As these issues are interrelated, we will consider them

together and in doing so are mindful that they present pure questions of law;

therefore, this Court's standard of review is de novo and our scope of review

is plenary. Muniz, 640 Pa. at 709, 164 A.3d at 1195.

       Appellant reasons that no mention of SORNA as a sentencing option is

made in 42 Pa.C.S.A. § 9721, and the mandatory nature of the statute coupled

with its inclusion of an exception as subsection a.1 which does not reference

SORNA “indicates that the alternatives listed, in conjunction with the

exception, are exhaustive.” Brief for Appellant at 10-11. Appellant posits that

Appellant was sentenced to a term of fifteen (15) years of registration and

reporting pursuant to SORNA making his maximum sentence exceed the

maximum sentence of two (2) years for a misdemeanor of the second degree

set for the in 18 Pa.C.S.A. § 1104(2). Id. at 12, 16.

       Appellant contends this Court’s conclusion in Commonwealth v.

Strafford, 194 A.3d 168 (Pa.Super. 2018) that SORNA’s registration

provisions are not constrained by Section 1103 but rather constitute an

authorized punitive measure separate and apart from an appellant’s term of

incarceration was in error.         Id. at 12-14.   Appellant concludes that his

sentence violates both the Sixth and Fourteenth Amendments to the United

States Constitution pursuant to Apprendi because that sentence was imposed
____________________________________________


       defendant is exposed. It is equally clear that such facts must be
       established by proof beyond a reasonable doubt.



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as a result of the General Assembly’s factual determination that Appellant

poses a high risk of committing additional sexual offenses.” Id. at 16-17.

      In setting forth his arguments, Appellant fails to cite this Court’s recent

decision in Commonwealth v. Bricker, 198 A.3d 371 (Pa.Super. 2018)

wherein we reiterated our prior holding in Strafford that a sentencing

requirement for a defendant to register as a sexual offender for a period of

time exceeding the lawful statutory maximum for his offense is not illegal. As

this analysis is dispositive herein, we quote it in detail below:

             With regard to Appellant's assertion that Muniz held
      SORNA's registration requirements constituted punishment, and,
      therefore, Subsection H cannot be imposed upon him as [it]
      exceeds the lawful statutory maximum for his offense which is
      seven (7) years, we observe that this Court recently held that
      SORNA's registration requirements are not governed by the
      statutory maximum sentences set forth in Chapter 11 of the
      Crimes Code. See Commonwealth v. Strafford, 194 A.3d 168,
      172-73, 2018 WL 3717081 at *3 (Pa.Super. filed Aug. 6, 2018).
      Observing this issue appeared to be one of first impression post-
      Muniz, we reasoned as follows:
           Appellant correctly observes that the Muniz Court found
           that the registration requirement mandated by SORNA
           is punitive. See Muniz, supra at 1218,[.] We, thus,
           begin our analysis of Appellant's challenge with a review
           of various statutes and legal principles relating to
           punishments.
               Our Supreme Court has explained the well-settled
           principle that the General Assembly “has the exclusive
           power to pronounce which acts are crimes, to define
           crimes, and to fix the punishment for all crimes. The
           legislature also has the sole power to classify crimes[.]”
           Commonwealth v. Eisenberg, 626 Pa. 512, 98 A.3d
           1268, 1283 (2014) (citation and quotation omitted).
               Our General Assembly has authorized courts to
           impose specific punishments when fashioning a
           sentence, and specified maximum terms and amounts of


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         those punishments. These categories of punishment
         include (1) partial or total confinement, (2) probation,
         (3) state or county intermediate punishment, (4) a
         determination of guilt without further penalty, and (5) a
         fine. 42 Pa.C.S. § 9721.
             With respect to the punishment of incarceration, 18
         Pa.C.S. § 1103 governs the maximum authorized
         sentence of imprisonment for felony convictions. By a
         separate statute, these maximum allowable terms also
         apply to probationary sentences, a different category of
         punishment authorized by the General Assembly. In 42
         Pa.C.S. § 9754(a), the legislature directed that “[i]n
         imposing an order of probation the court shall specify at
         the time of sentencing the length of any term during
         which the defendant is to be supervised, which term
         may not exceed the maximum term for which the
         defendant could be confined, and the authority that
         shall conduct the supervision.” Id. (emphasis added).
         Thus, the legislature explicitly connected the authorized
         punishments of incarceration and probation by statute.
             However, most sentencing alternatives are not tied
         to the maximum authorized term of incarceration. For
         example, the legislature has authorized courts to include
         in sentences the requirement that a defendant pay a fine
         or restitution. These categories of punishment are not
         limited by the maximum period of incarceration; rather,
         the legislature set different maximum authorized
         amounts of punishment a court may impose as part of
         its sentence. See, e.g., 18 Pa.C.S. § 1101 (defining
         maximum fines); 18 Pa.C.S. § 1106 (providing statutory
         scheme for restitution for injuries to person or property).
             In SORNA the legislature authorized courts to include
         periods of registration as part of a sentence. Similar to
         the treatment of the payment of fines or restitution, the
         legislature did not tie the period of registration to the
         length of incarceration. See 42 Pa.C.S. § 9799.14
         (“Sexual offenses and tier system”); 42 Pa.C.S. §
         9799.15 (“Period of registration”). SORNA's registration
         provisions are not constrained by Section 1103. Rather,
         SORNA's registration requirements are an authorized
         punitive measure separate and apart from Appellant's
         term of incarceration. The legislature did not limit the
         authority of a court to impose registration requirements
         only within the maximum allowable term of

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          incarceration; in fact, the legislature mandated the
          opposite and required courts to impose registration
          requirements in excess of the maximum allowable term
          of incarceration.
      Id. at *2-3 (emphasis in original).

Commonwealth v. Bricker, 198 A.3d 371, 376-77 (Pa.Super. 2018). In

Bricker, this Court ultimately concluded the appellant’s twenty-five year

registration   requirement   authorized   by   Subchapter   H   of   the   recent

amendments to SORNA, which was enacted on February 21, 2018, and applies

where one’s offense occurred on or after December 20, 2012, did not

constitute an illegal sentence.

      It is axiomatic that “[t]his Court is bound by existing precedent under

the doctrine of stare decisis and continues to follow controlling precedent as

long as the decision has not been overturned by our Supreme Court.”

Commonwealth v. Reed, 107 A.3d 137, 143 (Pa.Super. 2014). Based on

our decisions in Strafford and Bricker, we conclude that Appellant’s fifteen-

year registration requirement authorized by SORNA does not constitute an

illegal sentence; therefore, Appellant’s arguments on appeal fail.

      With regard to Appellant’s constitutional challenge under Apprendi, to

which he devotes three paragraphs of argument in his appellate brief, we note

that the facts of the instant matter are distinguishable from those presented

therein. Unlike the defendant in Apprendi, Appellant pled guilty to a single

count of Indecent Assault and was advised of the resulting registration and

reporting requirements under SORNA.        The trial court at no time made a


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factual finding that increased Appellant’s sentence which was the result of his

guilty plea to the qualifying crime. As such, this claim also lacks merit.

       Judgment of Sentence Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/07/2019




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