J-S76042-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

JASON EUGENE FREELAND

                          Appellant                 No. 1331 WDA 2014


             Appeal from the Judgment of Sentence July 30, 2014
               In the Court of Common Pleas of Fayette County
             Criminal Division at No(s): CP-26-CR-0002141-2013

BEFORE: FORD ELLIOTT, P.J.E., PANELLA and OLSON, JJ.

MEMORANDUM BY OLSON, J.:                       FILED DECEMBER 22, 2014

        Appellant, Jason Eugene Freeland, appeals from the judgment of

sentence entered on July 30, 2014, as made final by the denial of his post-

sentence motion on August 6, 2014. We affirm.

        The factual background of this case is as follows.   On November 2,

2011, 13-year-old A.M. was sent home from school.       When she got home

from school, Appellant pushed her down on the bed and raped her.        The

procedural background of this case is as follows. On December 18, 2013,

Appellant was charged via criminal information with rape,1 sexual assault,2




1
    18 Pa.C.S.A. § 3121(a)(1).
2
    18 Pa.C.S.A. § 3124.1.
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and corruption of a minor.3      On April 3, 2014, Appellant pled guilty to all

three charges.     The trial court ordered an evaluation of Appellant by the

Pennsylvania Sexual Offenders Assessment Board because of his conviction

for the sexual offenses. After this evaluation, Appellant’s sentencing hearing

was held on July 30, 2014. At that hearing, Appellant was found not to be a

sexually violent predator (“SVP”), was sentenced to four to eight years’

imprisonment, and ordered to register as a sex offender for the remainder of

his life.   Appellant filed a post-sentence motion on August 4, 2014.      That

motion was denied on August 6, 2014. This timely appeal followed.4

        Appellant raises two issues for our review:

     1. Is it unconstitutional to require an Appellant to register for a
        lifetime when said registration requirement exceeds the
        statutory maximum penalty for Appellant’s offense?

     2. Is [Pennsylvania’s version of the Sex Offender Registration and
        Notification Act (“SORNA”), 42 Pa.C.S.A §§ 9799.10–9799.41]
        unconstitutional in requiring [] Appellant to register for [his]
        lifetime?

Appellant’s Brief at 7 (complete capitalization removed).

        Appellant first contends that his sentence is illegal as the requirement

to register as a sex offender for the remainder of his life exceeds the

statutory maximum penalty for rape, i.e., 20 years. “Issues relating to the


3
    18 Pa.C.S.A. § 6301(a)(1)(ii).
4
   On August 13, 2014, Appellant filed a concise statement of errors
complained of on appeal (“concise statement”). See Pa.R.A.P. 1925(b). On
August 19, 2014, the trial court issued its Rule 1925(a) opinion. Both issues
raised on appeal were included in Appellant’s concise statement.

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legality of a sentence are questions of law. . . . Our standard of review over

such   questions   is   de   novo   and   our   scope   of   review   is   plenary.”

Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014).                   As this

Court has explained:

       On December 20, 2011, the legislature replaced Megan’s Law
       with SORNA, effective December 20, 2012, to strengthen
       registration requirements for sex offenders and to bring
       Pennsylvania into compliance with the Adam Walsh Child
       Protection and Safety Act, 42 U.S.C.A. § 16901 et seq. Section
       9799.14 of SORNA establishes a three-tier system of specifically
       enumerated offenses requiring registration for differing lengths
       of time.

Commonwealth v. Sampolski, 89 A.3d 1287, 1288 (Pa. Super. 2014).

Rape is a Tier III offense and requires lifetime registration.             See 42

Pa.C.S.A. § 9799.14(d)(2).

       As to Appellant’s contention that the lifetime registration requirement

is illegal because it exceeds the statutory maximum sentence for rape, this

Court recently rejected a similar challenge, stating:

       [Appellant] relies upon Commonwealth v. Williams, 832 A.2d
       962 (Pa. 2003), to support his argument that requiring an
       individual to register for many years longer than the maximum
       penalty of the crime itself is excessive and the registration
       provisions should be struck down as unconstitutional punishment
       under the state and federal constitutions. In Williams, our
       Supreme Court was asked to decide whether certain provisions
       of Megan’s Law II were constitutional as it applied to [SVPs]. The
       Williams Court specifically held that the [application of the]
       registration, notification, and counseling provisions of Megan’s
       Law II, to offenders deemed to be SVPs, were non-punitive,
       regulatory measures supporting a legitimate governmental
       purpose. Id. at 986. However, [our Supreme] Court did find
       that the prescribed penalties that attach to SVP’s for failure to



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     register and verify their residence were unconstitutionally
     punitive and, therefore, invalidated those provisions. Id. . . .

     [E]ven assuming that [Appellant’s lifetime] registration
     requirement is excessive in comparison to his actual sentence of
     [four to eight] years’ imprisonment, we cannot ignore our
     Supreme Court’s pronouncement that:

        Because [it] do[es] not view the registration requirements
        as punitive but, rather, remedial, [it] does not perceive
        mandating compliance by offenders who have served their
        maximum term to be improper. Furthermore, the fact that
        an offender may be held until such information is furnished
        is no different from confining someone in a civil contempt
        proceeding.     While any imprisonment, of course, has
        punitive and deterrent effects, it must be viewed as
        remedial if release is conditioned upon one’s willingness to
        comply with a particular mandate.

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

                                   ***

     While [the cases relied upon] were decided prior to the effective
     date of SORNA, 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.

Commonwealth v. McDonough, 96 A.3d 1067, 1070–1071 (Pa. Super.

2014) (emphasis removed); see Commonwealth v. Benner, 853 A.2d

1068, 1070 (Pa. Super. 2004) (internal quotation marks, alteration, and

citations omitted) (“The registration provisions of Megan’s Law do not

constitute criminal punishment. . . . [T]he registration requirement is

properly characterized as a collateral consequence of the defendant’s plea,

as it cannot be considered to have a definite, immediate and largely

automatic effect on a defendant’s punishment.”).


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      Thus, under McDonough a registration requirement that exceeds the

statutory maximum sentence is not illegal. Although McDonough dealt with

a 15-year registration requirement, its rationale is equally as applicable to a

lifetime registration requirement. Therefore, Appellant’s lifetime registration

requirement was not an illegal sentence.

      In   his    second    issue,   Appellant   contends   that    SORNA     is

unconstitutional. Specifically, he alleges that SORNA violates the prohibition

against cruel and unusual punishment found in the Eighth Amendment to the

United States Constitution (as incorporated against the states through the

Fourteenth Amendment) and article I, section 13 of the Pennsylvania

Constitution.    The constitutionality of a statute is a pure question of law,

therefore our standard of review is de novo and our scope of review is

plenary.   Robinson Tp., Wash. Cnty. v. Commonwealth, 83 A.3d 901,

943 (Pa. 2013) (citation omitted).

      “[T]he Pennsylvania prohibition against cruel and unusual punishment

is coextensive with the Eighth and Fourteenth Amendments to the United

States Constitution, and [] the Pennsylvania Constitution affords no broader

protection against excessive sentences than that provided by the Eighth

Amendment to the United States Constitution.” Commonwealth v. Elia, 83

A.3d 254, 267 (Pa. Super. 2013), appeal denied, 94 A.3d 1007 (Pa. 2014)

(internal quotation marks, alteration, and citation omitted). It is well-settled

that when a statute imposes a disability on a defendant for a reason other



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than to punish, it is considered non-penal and outside the confines of the

Eighth Amendment. See Trop v. Dulles, 356 U.S. 86, 96 (1958). As noted

above, in McDonough this Court recently held that SORNA’s goal is “to

effectuate, through remedial legislation, the non-punitive goal of public

safety.” McDonough, 96 A.3d at 1071; see Benner, 853 A.2d at 1070.

     We note that our decision in McDonough is congruent with the

decisions of a long list of courts.   At least three United States Courts of

Appeals have held that registration requirements under the federal version

of SORNA do not violate the Eighth Amendment. United States v. Under

Seal, 709 F.3d 257, 265 (4th Cir. 2013); United States v. Crews, 496 F.

App’x 896, 901 (11th Cir. 2012); United States v. Davis, 352 F. App’x

270, 272 (10th Cir. 2009). The Supreme Court of Nevada has likewise held

that Nevada’s version of SORNA does not violate the Eighth Amendment.

Nevada v. Eighth Jud. Dist. Ct. (Logan D.), 306 P.3d 369, 388 n.13

(Nev. 2013).    Furthermore, at least five United States Courts of Appeals

have held that the federal version of SORNA is a civil regulatory scheme,

foreclosing the possibility that it violates the Eighth Amendment.   United

States v. Roberson, 752 F.3d 517, 524 (1st Cir. 2014); United States v.

Shannon, 511 F. App’x 487, 492 (6th Cir. 2013); United States v. Leach,

639 F.3d 769, 773 (7th Cir.2011); United States v. Young, 585 F.3d 199,

204–205 (5th Cir. 2009); United States v. May, 535 F.3d 912, 920 (8th

Cir. 2008).    Courts of last resort in at least two other jurisdictions have



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likewise held that their respective versions of SORNA are civil regulatory

schemes. Doe v. Dep't of Pub. Safety & Corr. Servs., 62 A.3d 123, 155–

156 (Md. 2013); Doe I v. Williams, 61 A.3d 718, 730 (Me. 2013) (citation

omitted);

     As SORNA is a non-punitive, remedial scheme, it is not punishment for

the purposes of the Eighth Amendment or article 1, section 13 of the

Pennsylvania   Constitution.    Therefore,   SORNA’s   lifetime   registration

requirement does not violate the prohibition against cruel and unusual

punishment found in the federal and state constitutions.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2014




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