J-S22019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

RICKY WAYNE THOMPSON

                            Appellant                       No. 958 MDA 2016


               Appeal from the Judgment of Sentence May 11, 2016
                  In the Court of Common Pleas of Berks County
               Criminal Division at No(s): CP-06-CR-0001137-2014


BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*

MEMORANDUM BY MOULTON, J.:                            FILED SEPTEMBER 21, 2017

       Ricky Wayne Thompson appeals from the May 11, 2016 judgment of

sentence entered in the Berks County Court of Common Pleas following his

jury trial convictions for intimidation of witnesses or victims (refrain from

reporting), endangering the welfare of children, corruption of minors (sexual

conduct), indecent assault (victim less than 13 years old), and indecent

exposure.1 We affirm.

       On     September     16,   2015,    a   jury   convicted   Thompson   of   the

aforementioned offenses.           After the trial court excused the jury, the

Commonwealth stated on the record that Thompson had “a prior conviction
____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
       1
       18 Pa.C.S. §§ 4952(a)(1), 4304(a)(1), 6301(a)(1)(ii), 3126(a)(7),
and 3127(a), respectively.
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from the State of New Jersey for possession of child pornography” and that

it would “be filing written notice in the near future for the applica[tion] of the

25 years mandatory [minimum sentence] for [a] prior sexual offense.” N.T.,

9/16/15, at 245. On September 17, 2015, the Commonwealth filed written

notice that it would be seeking 25-year mandatory minimum sentences for

Thompson’s convictions for corruption of minors and indecent assault

pursuant to section 9718.2 of the Sentencing Code2 based on a prior

____________________________________________



       2
           Section 9718.2 of the Sentencing Code provides, in pertinent part:

               (a)   Mandatory sentence.--

                     (1)    Any person who is convicted in any court of
                            this Commonwealth of an offense set forth
                            in section 9799.14 (relating to sexual
                            offenses and tier system) shall, if at the
                            time of the commission of the current
                            offense the person had previously been
                            convicted of an offense set forth in section
                            9799.14 or an equivalent crime under the
                            laws of this Commonwealth in effect at the
                            time of the commission of that offense or an
                            equivalent crime in another jurisdiction, be
                            sentenced to a minimum sentence of at
                            least 25 years of total confinement,
                            notwithstanding any other provision of this
                            title or other statute to the contrary . . .

                                           ...

               (c)   Proof of sentencing.--The provisions of this
                     section shall not be an element of the crime, and
                     notice thereof to the defendant shall not be
                     required prior to conviction, but reasonable notice
                     of the Commonwealth’s intention to proceed
(Footnote Continued Next Page)


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conviction of an offense set forth under section 9799.14 of the Sexual

Offenders Registration and Notification Act (“SORNA”) “or an equivalent

crime under the laws of this Commonwealth in effect at the time of the

commission of that offense or an equivalent crime in another jurisdiction.”

Cmwlth.’s Not. of Intent, 9/17/15. The notice did not specifically reference

either the New Jersey conviction or New Jersey law.


                       _______________________
(Footnote Continued)

                       under this section shall be provided after
                       conviction    and     before   sentencing.      The
                       applicability of this section shall be determined at
                       sentencing.      The sentencing court, prior to
                       imposing sentence on an offense under subsection
                       (a), shall have a complete record of the previous
                       convictions of the offender, copies of which shall
                       be furnished to the offender. If the offender or
                       the attorney for the Commonwealth contests the
                       accuracy of the record, the court shall schedule a
                       hearing and direct the offender and the attorney
                       for the Commonwealth to submit evidence
                       regarding the previous convictions of the
                       offender. The court shall then determine, by a
                       preponderance of the evidence, the previous
                       convictions of the offender and, if this section is
                       applicable, shall impose sentence in accordance
                       with this section. Should a previous conviction be
                       vacated and an acquittal or final discharge
                       entered subsequent to imposition of sentence
                       under this section, the offender shall have the
                       right to petition the sentencing court for
                       reconsideration of sentence if this section would
                       not have been applicable except for the conviction
                       which was vacated.

42 Pa.C.S. § 9718.2.




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      At sentencing on May 11, 2016, the Commonwealth introduced a

three-page document that it represented to be a copy of Thompson’s New

Jersey   judgment    of    conviction   for   possession   of   child   pornography.

Thompson’s counsel objected to its admission arguing that section 5328(a)

of the Judicial Code requires that the document be sealed and, because the

document did not contain a seal, it was inadmissible. The Commonwealth

argued that the signature affixed by a Special Deputy Clerk of the New

Jersey Superior Court met the requirements of section 5328(a).

      Thompson also argued that the Commonwealth failed to provide him

written notice that New Jersey law would be at issue at sentencing in

violation of section 5327(a) of the Judicial Code.         Accordingly, Thompson

objected to the Commonwealth’s introduction of the New Jersey statute

under which he was allegedly convicted. The Commonwealth responded that

Thompson was “notified by the Commonwealth at the time [it] filed [its]

notice that [it] was intending on using [the] New Jersey statute.”             N.T.,

5/11/16, at 24.     The trial court agreed with the Commonwealth on both

issues and admitted the document.

      The trial court imposed the 25-year mandatory minimum sentences

pursuant to section 9718.2 for corruption of minors and indecent assault

based on the New Jersey conviction.             These sentences were imposed

concurrent to each other and concurrent to the sentences imposed for

Thompson’s other convictions, resulting in an aggregate sentence of 25 to

50 years’ incarceration.

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        On May 23, 2016, Thompson filed a post-sentence motion, arguing

that:    the predicate conviction that triggered the mandatory minimum

sentences was established by inadmissible evidence under section 5328 and

Pennsylvania Rule of Evidence 902(1); and the Commonwealth failed to

provide him written notice that New Jersey law would be at issue at

sentencing as required by section 5327 of the Judicial Code.       On May 24,

2016, the trial court denied Thompson’s motion.           On June 15, 2016,

Thompson timely filed a notice of appeal.

        Thompson raises the following issues on appeal:

             A. Whether the case should be remanded to
                supplement the sufficiency of the evidence claim?

             B. Whether the Lower Court erroneously admitted
                evidence to support the [m]andatory sentence at the
                sentencing hearing, namely:

                   a. An unsealed foreign record that purportedly
                      demonstrated an out of state conviction of
                      [Thompson].

                   b. Taking judicial notice of an out of state statute
                      contrary to Pennsylvania law, when that
                      statute post-dated [Thompson]’s purported out
                      of state conviction.

                   c. The Lower Court accepted an incomplete
                      record of [Thompson]’s prior conviction,
                      contrary to the [m]andatory statute.

             C. Whether the [m]andatory [s]entence was unlawful
                for the following reasons:

                   a. The mandatory notice was legally insufficient in
                      that it failed to provide [Thompson] with
                      sufficient notice of the predicate offense.



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                   b. The mandatory [sentence] is contrary to
                      Alleyne [v. United States, 133 S.Ct. 2151
                      (2013)] and a violation of due process under
                      the   [United  States]    and   Pennsylvania
                      Constitutions.

Thompson’s Br. at 4-5 (suggested and trial court answers omitted).

 I.   Sufficiency Claims

      A. Supplemental 1925(b) Statement

      First, Thompson argues that the trial court erred in denying his

petition to supplement his Rule 1925(b) statement after counsel’s receipt of

the trial transcripts.

      On June 15, 2016, when counsel filed Thompson’s notice of appeal, he

simultaneously petitioned the trial court to waive appeal fees as Thompson

was petitioning to proceed in forma pauperis (“IFP”).     Thompson asserts

that, in Berks County, transcript requests cannot be processed unless

accompanied by a 50% deposit or the petitioner has been granted leave to

proceed IFP. Thompson states that although the trial court scheduled an IFP

hearing for July 6, 2016, it granted Thompson IFP status on June 16, 2016.

Counsel claims he did not receive notice of the IFP status until late June.

When Thompson filed his Rule 1925(b) statement on July 6, 2016, he

simultaneously filed a request for transcripts and a petition to supplement

the 1925(b) statement upon receipt of the transcripts. The trial court denied

Thompson’s petition.

      Thompson argues that “[he] should have [had] the opportunity to

review the relevant court transcripts before having to commit to a final


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version of a [Rule] 1925[(b)] concise statement,” and that he showed good

cause for the filing of a supplemental statement.3       Thompson’s Br. at 12.

We disagree.

       When a trial court orders an appellant to file a Rule 1925(b)

statement, Rule 1925(b)(2) provides the appellant 21 days in which to file a

statement of errors complained of on appeal. However,

           [u]pon application of the appellant and for good cause
           shown, the judge may enlarge the time period initially
           specified or permit an amended or supplemental
           [s]tatement to be filed. Good cause includes, but is not
           limited to, delay in the production of a transcript necessary
           to develop the [s]tatement so long as the delay is not
           attributable to a lack of diligence in ordering or paying for
           such transcript by the party or counsel on appeal. In
           extraordinary circumstances, the judge may allow for the
           filing of a [s]tatement or amended or supplemental
           [s]tatement nunc pro tunc.

Pa.R.A.P. 1925(b)(2).        The comment to Rule 1925(b)(2) provides further

guidance:

           This paragraph extends the time period for drafting the
           Statement from 14 days to at least 21 days, with the trial
           court permitted to enlarge the time period or to allow the
           filing of an amended or supplemental Statement upon
           good cause shown. In Commonwealth v. Mitchell, . . .
           902 A.2d 430, 444 ([Pa.] 2006), the [Supreme] Court
           expressly observed that a Statement filed “after several
____________________________________________


       3
         Thompson asserts that the trial court denied his petition to
supplement the Rule 1925(b) statement because it “was long enough
already,” and, as a part of the reproduced record, Thompson submits an
order with a note under the trial judge’s signature that states, “C.S. seems
long enough!” R.R. at P157. However, the copy of this order that appears
in the certified record does not contain this note. See Order, 7/7/16.



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          extensions of time” was timely. An enlargement of time
          upon timely application might be warranted if, for
          example, there was a serious delay in the transcription of
          the notes of testimony or in the delivery of the order to
          appellate counsel. A trial court should enlarge the time or
          allow for an amended or supplemental Statement when
          new counsel is retained or appointed. A supplemental
          Statement may also be appropriate when the ruling
          challenged was so non-specific--e.g. “Motion Denied”--that
          counsel could not be sufficiently definite in the initial
          Statement.

Pa.R.A.P. 1925, cmt. In addition, the Rule provides the trial court discretion

in allowing an appellant to file supplemental 1925(b) statements. See id.

      Here, because appellate counsel also represented Thompson at trial,

counsel should have known the specific elements that Thompson sought to

challenge through a sufficiency claim when he filed the Rule 1925(b)

statement. Moreover, counsel requested an extension of time to review the

transcripts and determine whether there were “other meritorious issues” for

appeal; he did not seek an extension of time to clarify Thompson’s

sufficiency claim.   Under these circumstances, we conclude that the trial

court did not abuse its discretion in denying Thompson’s petition to file a

supplemental Rule 1925(b) statement.

      B. Waiver of Sufficiency Claims

      Because we conclude that the trial court did not abuse its discretion in

denying Thompson’s petition to file a supplemental 1925(b) statement, we

must now determine whether Thompson has waived his sufficiency claims on

appeal.   It is well settled that “when challenging the sufficiency of the

evidence on appeal, the [a]ppellant’s [Rule] 1925[(b)] statement must


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specify the element or elements upon which the evidence was insufficient in

order to preserve the issue for appeal.”         Commonwealth v. Gibbs, 981

A.2d 274, 281 (Pa.Super. 2009) (internal quotation omitted).             “Such

specificity is of particular important in cases where . . . the [a]ppellant was

convicted of multiple crimes each of which contains numerous elements that

the Commonwealth must prove beyond a reasonable doubt.” Id.

       We conclude that Thompson has waived his sufficiency claims. In his

Rule 1925(b) statement, Thompson merely contended that “[t]he alleged

victim did not provide testimony to establish . . . indecent assault, indecent

exposure, endangering the welfare of a child or corruption of minors.”

1925(b) Stmt., 7/6/16, ¶ 1. Thompson failed to delineate which elements of

which offenses he sought to challenge, thereby hampering our review of the

sufficiency claims.4

II.    Evidence of New Jersey Conviction

       Next, Thompson argues that the trial court improperly admitted a

purported out-of-state conviction as evidence at sentencing.       “Questions

concerning the admissibility of evidence are ‘within the sound discretion of

the trial court . . . [and] we will not reverse a trial court’s decision


____________________________________________


       4
         While we recognize and appreciate the trial court’s analysis of the
sufficiency of the evidence in its Rule 1925(a) opinion, we must uniformly
apply the commands of Rule 1925 to put appellants on notice as to what the
Rule requires.




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concerning admissibility of evidence absent an abuse of the trial court’s

discretion.’”   Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa.Super.

2014) (quoting Commonwealth v. Brown, 52 A.3d 1139, 1197 (Pa.

2012)).

      Thompson contends that the trial court erred in admitting the

conviction as evidence at his sentencing hearing because the document did

not contain a seal.    According to Thompson, section 5328 of the Judicial

Code requires that his out-of-state conviction document be sealed and,

because the conviction document was not sealed, it was not self-

authenticating under Pennsylvania Rule of Evidence 902.         The trial court

concluded that the conviction was admissible, stating that it was “in fact

under seal” and “certified by the Clerk in Ocean County, New Jersey Superior

Court.” N.T., 5/11/16, at 6.

      We are constrained to agree with Thompson that the certified copy of

his out-of-state conviction did not contain a “seal” within the meaning of

section 5328. Section 5328 provides that

          [a]n official record kept within the United States, or any
          state, district, commonwealth, territory, insular possession
          thereof, . . . when admissible for any purpose, may be
          evidenced by an official publication thereof or by a copy
          attested by the officer having the legal custody of the
          record, or by his deputy, and accompanied by a certificate
          that the officer has the custody. The certificate may be
          made by a judge of a court of record having jurisdiction in
          the governmental unit in which the record is kept,
          authenticated by the seal of the court, or by any public
          officer having a seal of office and having official duties in



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           the governmental unit in which the record is kept,
           authenticated by the seal of his office.

42 Pa.C.S. § 5328(a).          This Court has noted that an official seal is a

technical requirement.         See Commonwealth v. Smith, 563 A.2d 905

(Pa.Super. 1989). In Smith, this Court examined whether a court-martial

conviction before the United States Army was a prior conviction for the

purposes of section 9714 of the Sentencing Code.5              Id. at 909.     We

concluded that a copy of the court-martial conviction that “was duly certified

as being a true and correct copy by the Clerk of Court, U.S. Army Judiciary,

U.S. Army Legal Services Agency, who is the official custodian of the

records, and that bore the seal of the U.S. of America War Office” was

properly authenticated under section 5328.         Id.   In addition, in a drivers’

license suspension case, the Commonwealth Court similarly indicated that

the presence of an official seal was necessary for authentication under

section 5328. See, e.g., Rhoads v. Commonwealth, 620 A.2d 659, 662

n.2 (Pa.Cmwlth. 1993) (holding that “seal so faint as to be unreadable”

prevented Court from determining whether licensee’s record was admissible

under section 5328).6

____________________________________________


       5
        Section 9714 of the Sentencing Code requires trial courts to apply
mandatory minimum sentence where an offender is convicted of a crime of
violence and, “at the time of the commission of the current offense . . . had
previously been convicted of crime of violence.” 42 Pa.C.S. § 9714(a)(1).
       6
       We are not bound by decisions of the Commonwealth Court, but
“such decisions provide persuasive authority, and we may turn to our
(Footnote Continued Next Page)


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      Here, the Commonwealth introduced Thompson’s prior conviction 7 at

sentencing. M.E. Hosler, Special Deputy Clerk of the New Jersey Superior

Court, Ocean County Vicinage, certified, in writing, that the document is a

true copy of Thompson’s judgment of conviction. Hosler’s signature appears

on the first page of the document.               A judge’s signature appears on the

second page of the document after the imposition of sentence, dated August

29, 2008. This document, however, contains no seal or equivalent stamp or

impression by the New Jersey court.8 As such, the Commonwealth did not

meet the technical requirement of a “seal” under section 5328.

                       _______________________
(Footnote Continued)

colleagues on the Commonwealth Court for guidance when appropriate.”
Maryland Cas. Co. v. Odyssey, 894 A.2d 750, 756 n.2 (Pa.Super. 2006).

      Following Rhoads, the General Assembly amended section 1550 of the
Vehicle Code. See Mackall v. Commonwealth Dep’t of Transp., Bureau
of Driver Licensing, 680 A.2d 31, 34 (Pa.Cmwlth. 1996). Under section
1550(d), “the Department [of Transportation] is no longer required to
comply with the evidentiary rules set forth in [s]ection 5328(a) of the
[Judicial Code].” Id.
      7
        Initially, the certified record contained only a photocopy of the prior
conviction. On July 25, 2017, we ordered the trial court to supplement the
record with the original document introduced at the May 11, 2016
sentencing hearing. The trial court provided the document to this Court on
August 2, 2017.
      8
        Our research reveals no case law addressing what type of mark
constitutes a “seal” under section 5328 of the Judicial Code. Black’s Law
Dictionary defines “seal” as: “A design embossed or stamped on paper to
authenticate, confirm, or attest; an impression or sign that has legal
consequence when applied to an instrument.” Black’s Law Dictionary 1550
(10th ed. 2014).      However, because Thompson’s purported conviction
document contains no mark or stamp that remotely resembles a “seal,” we
(Footnote Continued Next Page)


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       We conclude, however, that the trial court did not abuse its discretion

in admitting the conviction document. First, Thompson makes no claim now

that he was not convicted of possession of child pornography in New Jersey.

Nor did he make such a claim at the sentencing hearing. His argument goes

only to the technical absence of a seal. Second, Thompson admitted to a

prior conviction for possession of child pornography.              He did so on a

preliminary arraignment form that was used to help the magisterial district

court set an appropriate bail amount.               While the arraignment form says

“2005-Child Pron [sic]” and Thompson’s judgment of conviction in New

Jersey shows he was arrested in 2006 and convicted in 2008, Thompson has

not asserted that he was not actually convicted of possession of child

pornography. Further, a special deputy clerk of the Superior Court of New

Jersey attested to the document’s authenticity. In other words, there was

no suggestion that the conviction document was not authentic, and the lack

of a seal on the New Jersey judgment of conviction was merely a technical

defect. Under these circumstances, we conclude that the trial court did not

abuse its broad discretion in admitting the conviction. Therefore, Thompson

is not entitled to relief.

III.   Notice of New Jersey Law



                       _______________________
(Footnote Continued)

need not address in further detail what constitutes a “seal” under section
5328.



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      Thompson also argues that the Commonwealth did not provide him

with proper notice under section 5327 of the Judicial Code that New Jersey

law would be at issue at sentencing.

      Section 5327 permits “a court [to] take judicial notice of the law of any

jurisdiction outside the Commonwealth of Pennsylvania.” Commonwealth

v. Manley, 985 A.2d 256, 271 (Pa.Super. 2009).        However, section 5327

requires that “[a] party who intends to raise an issue concerning the law of

any jurisdiction or governmental unit thereof outside this Commonwealth

shall give notice in his pleadings or other reasonable written notice.”     42

Pa.C.S. § 5327(a).    The purpose of section 5327 is to warn an opposing

party that the law of another jurisdiction is at issue such that the opposing

party may prepare on that law.      Minnick v. Scheffy, 65 Pa.D.&C. 1, 7

(Pa.Com.Pl. 1949).

      In Manley, the appellant had asked the trial court to take judicial

notice of the federal Sentencing Guidelines while cross-examining a

Commonwealth witness; the witness agreed to testify against the appellant

in exchange for a reduction in sentence in an unrelated federal case in which

the witness pled guilty. 985 A.2d at 271. The trial court denied the request,

and we affirmed, noting that the trial court correctly denied the request

because defense counsel failed to “provide written notice of her intent to use

the . . . Guidelines.” Id.

      Here, the Commonwealth sought to introduce a copy of the statute on

which Thompson was allegedly convicted in New Jersey, but only provided

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oral notice to Thompson in court after the verdict.          The Commonwealth

neither mentioned New Jersey law in its written notice pursuant to section

9718.2 nor filed a separate written notice stating that it would be using New

Jersey law at sentencing.       Because the plain language of section 5327

requires written notice and section 9718.2 requires the trial court to

determine whether the offense from another jurisdiction is equivalent to a

SORNA    offense,    see   42   Pa.C.S.   §   9718.2,   we   conclude      that   the

Commonwealth failed to comply with section 5327 of the Judicial Code.

      Despite this violation, however, we conclude that the Commonwealth’s

failure to provide written notice of the applicability of the New Jersey statute

did not prejudice Thompson because he had actual notice that the New

Jersey statute would be at issue and ample time to prepare a defense. We

recognize that constructive notice has not been applied to violations of

section 5327.   However, in the context of sentencing, Pennsylvania courts

have ruled that some formal notice violations were harmless error where the

Commonwealth provided the defendant constructive notice of the issue and

the defendant was not prejudiced by the lack of formal notice. See, e.g.,

Commonwealth v. Hairston, 84 A.3d 657, 675-77 (Pa. 2014) (finding no

abuse of discretion where trial court permitted jury to consider death penalty

aggravator, where Commonwealth had not given formal notice that

particular   death   penalty    aggravator    would     be   at   issue,    because

Commonwealth gave constructive notice and defendant was not prejudiced);

Commonwealth v. Wesley, 753 A.2d 204, 210-16 (Pa. 2000) (same).

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      We reject Thompson’s claim that he lacked notice that the New Jersey

statute would be at issue.           Thompson’s arraignment information sheet

specifically   lists   a   prior   conviction   in   2005   for   “Child   Pron   [sic].”

Arraignment Information, 1/29/14.          In addition, after the jury returned its

verdict, the Commonwealth stated on the record that it would be filing a

notice of intent to seek a mandatory minimum sentence under section

9718.2 based on Thompson’s prior conviction for possession of child

pornography in New Jersey. N.T., 9/16/15, at 245.

      We also conclude that Thompson was not prejudiced by the lack of

written notice. At sentencing, Thompson did not argue that he had not been

convicted of possession of child pornography in New Jersey or that the New

Jersey conviction was not equivalent to a SORNA offense.                      Instead,

Thompson argued that the Commonwealth improperly presented to the trial

court an amended version of the possession of child pornography statute,

which was not in effect at the time of his conviction. N.T., 5/11/16, at 1-8.

It is clear that Thompson not only had notice that the New Jersey statute

would be at issue, but his counsel also had adequate time to, and in fact did,

address the New Jersey statute at sentencing. Under these circumstances,

we conclude that Thompson received adequate notice.

IV.   Complete Record of Prior Convictions

      Next, Thompson asserts that the trial court erred in imposing a

mandatory minimum sentence under section 9718.2 of the Sentencing Code

because it did not “have a complete record of [his] previous convictions . . .

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prior to imposing sentence[.]”       42 Pa.C.S. § 9718.2.        According to

Thompson, the phrase “complete record” shows that “the legislature wanted

to be sure that a sentencing court knew about every aspect of a predicate

conviction.”   Thompson’s Br. at 20.         Thus, Thompson asserts that the

conviction document is not a complete record of the prior conviction, as it is

“merely . . . a summary of a conviction” that does not contain the charging

documents, guilty plea colloquy, or transcripts. Id. We disagree.

      We apply the following standard of review to a question of statutory

interpretation:

            Statutory interpretation is a question of law, therefore
         our standard of review is de novo, and our scope of review
         is plenary.       In all matters involving statutory
         interpretation, we apply the Statutory Construction Act, 1
         Pa.C.S. §[§] 1501[-04], which provides that the object of
         interpretation and construction of statutes is to ascertain
         and effectuate the intention of the General Assembly.

            Generally, a statute’s plain language provides the best
         indication of legislative intent. We will only look beyond
         the plain language of the statute when words are unclear
         or ambiguous, or the plain meaning would lead to “a result
         that is absurd, impossible of execution or unreasonable.”
         1 Pa.C.S. § 1922(1). Therefore, when ascertaining the
         meaning of a statute, if the language is clear, we give the
         words their plain and ordinary meaning.

Commonwealth v. Popielarcheck, 151 A.3d 1088, 1091-92 (Pa.Super.

2016) (some internal citations and quotations omitted).

      The plain meaning of the phrase “complete record” in section 9178.2 is

obvious from its context — the General Assembly intended for the

sentencing court to have a complete listing of the offender’s prior convictions


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for sex offenses to determine whether the mandatory minimum sentence is

applicable.   Imposition of a mandatory minimum sentence under section

9718.2 requires only that the offender have a prior conviction for a SORNA

offense or SORNA-equivalent offense from another jurisdiction. 42 Pa.C.S. §

9718.2(a)(1). Therefore, Thompson’s implication that the phrase “complete

record” means the entire case file of a sex offense conviction is untenable

because the trial court need only know that the offender has been convicted.

In addition, subsection (d) of section 9718.2 requires the trial court to

impose the mandatory minimum sentence if the offender has a prior

conviction for a SORNA offense or a SORNA-equivalent offense.        See 42

Pa.C.S. § 9718.2(d) (“There shall be no authority in any court to impose on

an offender to which this section is applicable any lesser sentence than

provided for in subsections (a) and (b) or to place the offender on probation

or to suspend sentence.”).      Accordingly, whether the trial court had

Thompson’s complete case file from the prior conviction was irrelevant

because the trial court lacked discretion in imposing the mandatory

minimum sentence.

V.    Illegality of Sentence

      Finally, Thompson argues that his sentence is illegal for two reasons.

First, Thompson asserts that the Commonwealth’s notice of intent to seek a

mandatory minimum sentence under section 9718.2 of the Sentencing Code

was insufficient, as it failed to give him information on his predicate

conviction.   Second, Thompson argues that section 9718.2 is an illegal

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sentencing scheme under Alleyne v. United States, 133 S.Ct. 2151

(2013).

     A. Section 9718.2 Notice

     Thompson     argues   that   his   sentence   is   illegal   because   the

Commonwealth’s written notice did not mention any specific predicate

conviction that would trigger the mandatory minimum sentence under

section 9718.2.    According to Thompson, the “[n]otice provided was

completely generic and made no mention of [Thompson]’s instant conviction

or what the Commonwealth believe[d] the prior conviction to be.”

Thompson’s Br. at 22. We disagree.

     Section 9718.2(c) of the Sentencing Code requires that “notice thereof

to the defendant shall not be required prior to conviction, but reasonable

notice of the Commonwealth’s intention to proceed under this section shall

be provided after conviction and before sentencing.”              42 Pa.C.S. §

9718.2(c). While neither the Pennsylvania Supreme Court nor this Court has

examined what constitutes “reasonable notice” under this section, this

language is identical to the notice provision provided in section 9714(a)(1)

of the Sentencing Code, which requires the imposition of a mandatory

minimum sentence for a crime of violence where “at the time of the

commission of the current offense the person had previously been convicted

of a crime of violence.” 42 Pa.C.S. § 9714(a)(1). In a case involving the

applicability of section 9714, this Court concluded that the Commonwealth

gave reasonable notice where it (1) gave written notice in the bill of

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information that, if convicted of the crime of violence charged, it would be

seeking a mandatory minimum sentence under section 9714, and (2)

“verbally indicated on the record at the sentencing hearing its intent to

pursue a mandatory sentence under section 9714 and described the two

prior convictions for violent crimes.” Commonwealth v. Norris, 819 A.2d

568, 574-75 (Pa.Super. 2003).9 The trial court in Norris concluded that the

Commonwealth’s notice was misleading because it did not state whether the

Commonwealth sought imposition of the “two strikes” or “three strikes”

provision of section 9714(a).             Id. at 574.    We concluded that the

Commonwealth gave the appellant “reasonable notice” that “‘encapsulated

all relevant provisions’ of section 9714.”         Id. (quoting Commonwealth v.

Vasquez, 744 A.2d 1280, 1283 (Pa. 2000)).

       Here, the Commonwealth provided Thompson two forms of notice.

First, immediately following Thompson’s conviction, the Commonwealth

____________________________________________


       9
           The bill of information provided:

            Notice is hereby given that should defendant be convicted
            of aggravated assaulting for having intentionally,
            knowingly, or recklessly caused serious bodily injury to
            another    under    circumstances    manifesting  extreme
            indifference to the value of human life, the Commonwealth
            will proceed under 42 Pa.C.S. § 9714 (concerning
            sentences for second and subsequent offenses) and seek
            the imposition of a mandatory sentence in accordance
            therewith.

Norris, 819 A.2d at 574.



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stated on the record that it would be filing a notice of intent to seek

mandatory     minimum   sentences    under   section   9718.2   based   upon

Thompson’s prior conviction for possession of child pornography in New

Jersey. Second, the day after Thompson was convicted, the Commonwealth

filed, and served on Thompson, a written notice of its intent to seek

mandatory minimum sentences on Thompson’s convictions for corruption of

minors and indecent assault:

        TO DEFENDANT:

           AND NOW, this 17th day of September, 2015, the
        Commonwealth of Pennsylvania, by and through Margaret
        McCallum, Assistant District Attorney, hereby advises the
        Defendant, Ricky Wayne Thompson, of its intention to
        invoke the mandatory minimum sentence provisions of 42
        Pa.C.S. § 9718.2 as follows:

        1.     42 Pa.C.S. §[]9718.2(a)(1) (Sentences for sexual
               offenders), requiring a minimum sentence of at least
               twenty-five (25) years incarceration for committing
               the crime of Corruption of Minors, 18 Pa.C.S.
               §[]6301(a)(1)(ii) as it applies to Count 4 of the
               information when at the time of the commission of
               the current offense had previously been convicted of
               an offense set forth in section 42 Pa.C.S. §[]9799.14
               (Sexual Offenses and tier system) or an equivalent
               crime under the laws of this Commonwealth in effect
               at the time of that offense or an equivalent crime in
               another jurisdiction.

        2.     42 Pa.C.S. §[]9718.2(a)(1) (Sentences for sexual
               offenders), requiring a minimum sentence of at least
               twenty-five (25) years incarceration for committing
               the crime of Indecent Assault, 18 Pa.C.S.
               §[]3127(a)(7) as it applies to Count 5 of the
               information when at the time of the commission of
               the current offense had previously been convicted of
               an offense set forth in section 42 Pa.C.S. §[]9799.14
               (Sexual Offenses and tier system) or an equivalent

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              crime under the laws of this Commonwealth in effect
              at the time of that offense or an equivalent crime in
              another jurisdiction.

Cmwlth.’s Not. of Intent, 9/17/15, at 1-2.         Similar to Norris, the

Commonwealth not only gave Thompson written notice of its intent to seek a

mandatory minimum sentence based upon section 9178.2, but also orally

stated to both the trial court and Thompson that invocation of section

9718.2 was based upon his prior New Jersey conviction.       Therefore, we

conclude that Thompson received reasonable notice as required by section

9718.2.

     B. Alleyne Claim

     Finally, Thompson argues that his mandatory minimum sentence

under section 9718.2 is illegal pursuant to Alleyne v. United States, 133

S.Ct. 2151 (2013).    Thompson recognizes that Alleyne does not upset

sentencing schemes that require only proof of a prior conviction, but argues

that section 9718.2 requires more because “the . . . [c]ourt is required to

make a factual determination as to whether the New Jersey crime is an

equivalent crime in another jurisdiction.” Thompson’s Br. at 24. According

to Thompson, Alleyne applies because this additional determination requires

that the fact finder conclude beyond a reasonable doubt that the prior out-

of-state conviction for a sex offense is equivalent to a SORNA offense. We

disagree.

     “In Alleyne, the Supreme Court of the United States established that

‘[a]ny fact that, by law, increases the penalty for a crime is an “element”


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that must be submitted to the jury and found beyond a reasonable doubt.’”

Commonwealth v. Bragg, 133 A.3d 328, 332-33 (Pa.Super. 2016)

(quoting Alleyne, 133 S.Ct. at 2155), aff’d, __ A.3d __, 2017 Pa. Lexis

1924, at *1 (Pa. filed Aug. 22, 2017).        In Bragg, this Court considered

whether Alleyne applied to section 9714 of the Sentencing Code, discussed

above.     There, we concluded that because “the       Supreme Court [of the

United States] has recognized a narrow exception to this rule for prior

convictions[,] . . . [s]ection 9714 is not rendered unconstitutional under

Alleyne as it provides for mandatory minimum sentences based on prior

convictions.”   Id. at 333.   Because the applicability of section 9718.2 is

premised on prior convictions for SORNA offenses or SORNA-equivalent

offenses, and section 9718.2 is nearly identical to section 9714 in both

wording and application, we conclude that Alleyne is inapplicable to section

9718.2.

      Nor are we persuaded by Thompson’s argument that the question of

what constitutes a SORNA-equivalent offense from another jurisdiction under

section 9718.2 requires the trial court to engage in impermissible fact-

finding.   We again turn to section 9714 for guidance.          In determining

whether an out-of-state conviction is equivalent to a crime of violence in

Pennsylvania, the trial court must “carefully review the elements of the

foreign offense in terms of classification of the conduct proscribed, its

definition of the offense, the requirement for culpability,” and determine if

the offense “is substantially identical in nature and definition [to] the out-of-

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state or federal offense when compared [to the] Pennsylvania offense.”

Commonwealth v. Diaz, 152 A.3d 1040, 1048-49 (Pa.Super. 2016)

(quoting Commonwealth v. Northrip, 985 A.2d 734, 743 (Pa. 2009)),

app. denied, __ A.3d __, 2017 WL 2264119 (Pa. filed May 23, 2017). Our

Supreme      Court     has    instructed       that   in   making   that   equivalency

determination, the “focus should be on ‘the [prior] crime for which the

defendant was convicted, not the factual scenario underlying that

crime.’”     Id. at 1049 (quoting Northrip, 985 A.2d at 741) (emphasis

added). Because the determination of whether an out-of-state conviction is

equivalent to a crime of violence under section 9714 is a question of law, we

conclude that the similar determination of whether an out-of-state conviction

for a sex offense is equivalent to a SORNA offense under section 9718.2 is

also a question of law to be resolved by the trial court. Further, because we

conclude that the equivalency test10 under section 9718.2 raises a question

of law and not fact, we conclude that Alleyne does not apply.

       Judgment of sentence affirmed.




____________________________________________


       10
        Thompson’s claim does not require us to determine the appropriate
equivalency test under section 9718.2. However, we believe the equivalency
test approved by our Supreme Court in Northrip is appropriate for
determining whether an out-of-state conviction for a sex offense is
equivalent to a SORNA offense.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/2017




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