J-S13035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

WILLIAM F. HARTMAN

                             Appellant                 No. 156 EDA 2016


            Appeal from the Judgment of Sentence December 7, 2015
       in the Court of Common Pleas of Delaware County Criminal Division
                        at No(s): CP-23-CR-0004506-2014


BEFORE: BENDER, P.J.E., LAZARUS, and FITZGERALD,* JJ.

CONCURRING STATEMENT BY FITZGERALD, J.:                 FILED JULY 17, 2017

        I most reluctantly agree that Appellant’s conviction and sentence

under 42 Pa.C.S. § 9718.2 must be affirmed. However, I believe that the

mandatory twenty-five to fifty year sentence is grossly disproportionate to

the offenses committed by Appellant. Instantly, Appellant was found guilty

for possession of four images of child pornography,1 but was found not to be



*
    Former Justice specially assigned to the Superior Court.
1
   Appellant previously pleaded guilty to one count of possessing child
pornography and criminal use of a communication facility and was sentenced
to six to twenty-three months’ electronic home monitoring and a consecutive
five years’ probation.     Because this was Appellant’s second offense,
Appellant possession of each image constituted a felony of the second
degree, punishable by a maximum of five to ten years’ imprisonment. See
18 Pa.C.S. § 6312(d.1)(2)(ii). However, the Section 9718.2 applies without
regard to the grading of the offense.         See 42 Pa.C.S. § 9718.2(b).
Therefore, the twenty-five to fifty year sentence required by Section 9718.2
for a single count exceeded the maximum twenty to forty year sentence the
J-S13035-17


a sexually violent predator.   Without further evidence that Appellant is a

threat others or risks reoffending, I find no reasonable justification to

imprison Appellant for a minimum of twenty-five years.2 Thus, I believe that

the application of the General Assembly’s mandate, while required under

Section 9718.2(d), is wholly inappropriate in this case.



      P.J.E. Bender joins this concurring statement.




trial court could have imposed consecutively for all four counts had the
Commonwealth not sought the mandatory minimum sentence.
2
  At an estimated cost of $36,000 per year, the taxpayers of this
Commonwealth must also now bear at least $900,000 before Appellant
becomes parole eligible.



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