J-S04031-19

                                2019 PA Super 79

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JUAN BERMUDES PRIETO                     :
                                          :
                    Appellant             :   No. 512 MDA 2018

           Appeal from the Judgment of Sentence January 8, 2018
    In the Court of Common Pleas of Luzerne County Criminal Division at
                      No(s): CP-40-CR-0001356-2017


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

OPINION BY STEVENS, P.J.E.:                         FILED MARCH 18, 2019

      Appellant, Juan Bermudes Prieto, appeals from the judgment of

sentence entered in the Court of Common Pleas of Luzerne County following

his plea of nolo contendere to three counts of possession of child pornography,

18 Pa.C.S.A. § 6312(d). Additionally, Appellant’s counsel has filed a petition

seeking to withdraw his representation, as well as a brief pursuant to Anders

v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), and Commonwealth v.

Santiago, 602 Pa. 159, 978 A.2d 349 (2009) (hereinafter “Anders brief”).

After a careful review, we grant counsel’s petition to withdraw and affirm

Appellant’s judgment of sentence.

      The relevant facts and procedural history are as follows: On February

18, 2017, following an incident at Luigi’s Pizza in Mountain Top, Pennsylvania,

the police discovered Appellant in possession of “[t]hree digital images or

videos of a child or children under the age of 18 years old engaging in sexual

____________________________________
* Former Justice specially assigned to the Superior Court.
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activities or a simulation of sexual activities.” N.T., 10/11/17, at 5.

Accordingly, Appellant was arrested, and the Commonwealth filed a twenty-

two count criminal complaint against Appellant.

       On October 11, 2017, Appellant, who was represented by counsel,

proceeded to a hearing before the Honorable David W. Lupas, and he entered

a negotiated plea of nolo contendere to the charges indicated supra. With

regard to the plea agreement, the Commonwealth informed the trial court:

            Unless otherwise stated, the parties have not made any
       agreement as to sentencing. [Appellant] must pay costs and the
       Commonwealth moves to withdraw the remaining charges.
             The Commonwealth agrees to a sentence of two to four
       years. [Appellant] waives the 90 days for the Sexual Offender’s
       Assessment Board [(“SOAB”)] evaluation.       [Appellant] must
       register pursuant to the Adam Walsh Act [(SORNA)1]. [Appellant]
____________________________________________


1 The Sex Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.A.
§§ 9799.10-9799.41, was enacted on December 20, 2011, and became
effective on December 20, 2012. Effective February 21, 2018, the legislature
enacted Act 10, which added a new subchapter to SORNA, “Continued
Registration of Sexual Offenders.” 42 Pa.C.S.A. §§ 9799.51-9799.75. The
stated purpose of Act 10 was, inter alia, to address Commonwealth v.
Muniz, 640 Pa. 699, 164 A.3d 1189 (2017). Act 29 of 2018 reenacted Act
10, effective June 12, 2018.
       In the case sub judice, Appellant committed his crimes, entered his plea,
and was sentenced prior to the 2018 amendments. He has presented no
claims regarding the possible retroactive application of the legislature’s new
amendments, and there is no indication the Pennsylvania State Police have
attempted to classify Appellant under the new legislation. Thus, as the trial
court properly discerned in the first instance, the amended legislation is not
“pertinent to this matter[.]” Trial Court Opinion, filed 10/24/18, at 2 n.1. See
Commonwealth v. Fernandez, 195 A.3d 299 (Pa.Super. 2018) (en banc)
(holding possible retroactive application of legislature’s new amendments to
SORNA was not properly before this Court where there was no indication the
appellants were classified thereunder).



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       is to have no contact with the following parties: victims, minors,
       schools, school zones, school activities, public parks, pools or
       playgrounds. And it should be noted that as indicated on the plea
       [agreement] [Appellant] is not a United States Citizen.

Id. at 3 (footnote added).

       Defense counsel informed the trial court that Appellant is a citizen of

Mexico2 and “there is an ICE[3] detainer on [Appellant]. [T]he agreed-upon

sentence would be within the standard range of the guidelines.” Id. (footnote

added). The trial court accepted the plea, informed Appellant that he would

face immigration consequences, including deportation, in connection with his

plea, and scheduled sentencing for a separate date. Id. at 3-4. The trial

court ordered a presentence investigation report (“PSI”) and directed

Appellant to undergo a SOAB evaluation. Id. at 8.

       On January 8, 2018, Appellant, represented by counsel, appeared for a

sentencing hearing at which the trial court indicated “[Appellant] was

evaluated by [SOAB]. The court is in receipt of their report, which indicates

he is not deemed a sexually violent predator. And there was a PSI completed.”

N.T., 1/8/18, at 2.     The trial court then imposed sentence in accordance with

the parties’ plea agreement, thus sentencing Appellant to an aggregate of two

years to four years in prison. Id. at 4-5. The trial court gave Appellant credit


____________________________________________


2 The trial court provided Appellant with an interpreter for all court
proceedings.

3“ICE” refers to the United States Department of Immigration and Customs
Enforcement.

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for time served and directed Appellant to register pursuant to SORNA for

fifteen years.   Id. at 5.   The Commonwealth advised Appellant that his

conviction was a Tier I offense under SORNA and provided Appellant with a

detailed description of his SORNA reporting requirements. Id. at 5-8.

      On January 11, 2018, Appellant filed a timely, counseled post-sentence

motion, which the trial court denied. This timely, counseled appeal followed,

and all Pa.R.A.P. 1925 requirements have been met. On December 10, 2018,

counsel filed in this Court a petition seeking to withdraw his representation,

as well as an Anders brief. Appellant filed no further submissions either pro

se or through privately-retained counsel.

      Prior to addressing any issue raised on appeal, we must first resolve

counsel’s petition to withdraw. Commonwealth v. Goodwin, 928 A.2d 287,

290 (Pa.Super. 2007) (en banc). There are procedural and briefing

requirements imposed upon an attorney who seeks to withdraw on appeal

pursuant to which counsel must:

      1) petition the court for leave to withdraw stating that, after
      making a conscientious examination of the record, counsel has
      determined that the appeal would be frivolous; 2) furnish a copy
      of the brief to the [appellant]; and 3) advise the [appellant] that
      he or she has the right to retain private counsel or raise additional
      arguments that the [appellant] deems worthy of the court’s
      attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc) (citation omitted). In addition, our Supreme Court in Santiago stated

that an Anders brief must:


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      (1) provide a summary of the procedural history and facts, with
      citations to the record; (2) refer to anything in the record that
      counsel believes arguably supports the appeal; (3) set forth
      counsel’s conclusion that the appeal is frivolous; and (4) state
      counsel’s reasons for concluding that the appeal is frivolous.
      Counsel should articulate the relevant facts of record, controlling
      case law, and/or statutes on point that have led to the conclusion
      that the appeal is frivolous.

Santiago, 602 Pa. at 178-79, 978 A.2d at 361. Counsel also must provide

the appellant with a copy of the Anders brief, together with a letter that

advises the appellant of his or her right to “(1) retain new counsel to pursue

the appeal; (2) proceed pro se on appeal; or (3) raise any points that the

appellant deems worthy of the court’s attention in addition to the points raised

by counsel in the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,

353 (Pa.Super. 2007) (citation omitted). Substantial compliance with these

requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290

(Pa.Super. 2007).

      Herein, counsel contemporaneously filed his petition to withdraw as

counsel and Anders brief. In his petition, counsel states that after a thorough

and conscientious examination of the record he has determined that an appeal

herein is wholly frivolous. Additionally, in accordance with Nischan, counsel

has mailed Appellant a copy of the Anders brief and a letter informing him

that: (1) he has the right to retain new counsel; (2) he may proceed further

with his case pro se; and (3) he may raise any points that he deems worthy

of the this Court’s attention. Counsel attached his conforming correspondence



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to his petition to withdraw. See Commonwealth v. Millisock, 873 A.2d 748

(Pa.Super. 2005).

      In the Anders brief, counsel provides a summary of the facts and

procedural history of the case, refers to evidence of record that might arguably

support the issues raised on appeal, provides citations to relevant case law,

and states his reasoning and conclusion that the appeal is wholly frivolous.

Accordingly, counsel has substantially complied with all of the technical

requirements of Anders and Santiago. Therefore, we proceed to examine

the issues counsel identified in the Anders brief and then conduct “a full

examination of all the proceedings, to decide whether the case is wholly

frivolous.”   Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa.Super.

2018) (en banc) (quotation omitted).

      In the Anders brief, counsel raises the following issues (verbatim):

      I.      Whether SORNA is unconstitutional.
      II.     Whether SORNA violates the Separation of Powers clause.
      III.    Do the requirements under SORNA violate the Eighth
              Amendment[?]
      IV.     Do the registration requirements under SORNA constitute
              an illegal sentence[?]

Anders Brief at 1.

      At the outset, we note that “in terms of its effect upon a case, a plea of

nolo contendere is treated the same as a guilty plea.” Commonwealth v.

V.G., 9 A.3d 222, 226 (Pa.Super. 2010) (citation omitted). Generally, “upon

entry of a guilty plea, a defendant waives all claims and defenses other than


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those sounding in the jurisdiction of the court, the validity of the plea, and

what    has    been    termed      the   ‘legality’   of   the   sentence   imposed[.]”

Commonwealth v. Eisenberg, 626 Pa. 512, 98 A.3d 1268, 1275 (2014)

(citation omitted).

       In the case sub judice, Appellant’s claims present a challenge to the

legality of his sentence. See Commonwealth v. Dixon, 161 A.3d 949, 951

(Pa.Super. 2017) (“If no statutory authorization exists for a particular

sentence, that sentence is illegal and subject to correction.”) (citation

omitted)). “Issues relating to the 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. Cardwell, 105 A.3d 748, 750 (Pa.Super.

2014) (brackets and ellipses omitted).

       In his first issue, Appellant contends SORNA is unconstitutional as

applied to him pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.

2348 (2000), and Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151

(2013).     Specifically, he asserts that, in determining his sexually violent

predator (“SVP”) status under SORNA, necessary fact-based determinations

were made by the trial judge rather than a jury without the necessity of

requiring proof beyond a reasonable doubt.

       On     July   17,   2017,   the    Pennsylvania      Supreme    Court   held   in

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

SORNA’s registration provisions constitute punishment, and, therefore, the


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retroactive application of those provisions violates the ex post facto clauses of

the federal and Pennsylvania constitutions.4 Thereafter, on October 31, 2017,

a panel of this Court, in Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super.

2017), appeal granted, 190 A.3d 581 (Pa. 2018), recognized that “Muniz was

a sea change in the longstanding law of this Commonwealth as it determined

that the registration requirements under SORNA are not civil in nature but a

criminal punishment.”        Id. at 1215.        As such, the panel concluded the

statutory mechanism for designating a defendant as a SVP set forth in 42

Pa.C.S.A. § 9799.24(e)(3), which permits a trial court to make the

determination based upon clear and convincing evidence, was “constitutionally

flawed” pursuant to the United States Supreme Court’s decisions in Alleyne,

supra, and Apprendi, supra. Accordingly, the Butler panel held: “[T]rial

courts cannot designate convicted defendants SVPs or hold SVP hearings until

our General Assembly enacts a constitutional designation mechanism.”

Butler, 173 A.3d at 1218. Therefore, the Butler panel vacated the order

designating the defendant as an SVP, and remanded the case to the trial court




____________________________________________


4  We note that Appellant’s sentence is not illegal in light of Muniz, for therein
our Supreme Court held that the retroactive application of SORNA’s
registration provisions to defendants whose crimes occurred prior to SORNA’s
effective date (December 20, 2012) violated the ex post facto clause of the
Pennsylvania Constitution. Here, Appellant’s crimes occurred in 2017, and
there was otherwise no retroactive application of SORNA. See
Commonwealth v. Luciani, ___ A.3d ___, 2018 WL 6729854 (Pa.Super.
filed 12/24/18).

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to determine his proper registration period pursuant to 42 Pa.C.S.A. §§

9799.14 and 9799.15. See id.

      In the case sub judice, in rejecting Appellant’s first claim, the trial court

indicated the following:

            Here, the SOAB’s assessment of [Appellant] did not lead it
      to conclude that [Appellant] should be deemed a [SVP]. [T]hus,
      [the] court did not conduct a hearing pursuant to Section
      9799.24(e)(3), [Appellant] was not deemed a [SVP], and
      [Appellant] did not receive an enhanced sentence based on an
      SVP designation. [Rather,] pursuant to Section 9799.14(b),
      [Appellant] was classified a Tier I offender related to his
      underlying conviction for violating 18 Pa.C.S.A. § 6312(d). As
      such, he was subject to a 15 year registration period pursuant to
      Section 9799.15(a)(1). [Accordingly,] [Appellant] did not receive
      an enhanced sentence based on an SVP designation, but was
      instead properly subject to a tier-based registration period.

Trial Court Opinion, filed 10/24/18, at 7 (bold added).

      We agree with the trial court’s sound reasoning, conclude Appellant was

properly sentenced in accordance with the applicable SORNA tier-based

registration period, and find no merit to Appellant’s first claim.            See

Commonwealth v. Golson, 189 A.3d 994, 1003 (Pa.Super. 2018) (directing

“trial courts to apply only the applicable tier-based registration period, as

those periods apply based on the conviction itself, and not due to any

additional fact not found, under SORNA’s procedures, by the fact-finder”).

      In his second issue, Appellant contends SORNA violates the separation

of powers doctrine under the Pennsylvania Constitution since it grants

sentencing authority and administration exclusively to an administrative

agency rather than the courts.

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       This Court held that, under Megan’s Law II, “the separation of powers

doctrine remain[ed] intact because the [SOAB] dictate[d] no specific

conclusion to the judiciary.” Commonwealth v. Howe, 842 A.2d 436, 447

(Pa.Super. 2004) (citing Commonwealth v. Kopicz, 840 A.2d 342

(Pa.Super. 2003) (holding Megan’s Law II did not violate the separation of

powers doctrine because the SOAB did not perform an adjudicative function)).

In the case sub judice, Appellant has not cited any legal authority to suggest

that SORNA’s requirements are different from its predecessor in this regard,

and we find there is no merit to his claim.

       Appellant intertwines his third and fourth issues. Specifically, Appellant

contends that the requirement he register for a period of fifteen years as a

Tier I offender under SORNA is both an illegal sentence and “cruel and

unusual” punishment since the statutory maximum penalty for the crime to

which he pled nolo contendere is only seven years.5     We find no relief is due.

       In Commonwealth v. Strafford, 194 A.3d 168 (Pa.Super. 2018), a

panel of this Court held that our legislature could-and did-create multiple

types of punishment for a given crime. Thus, we held the legislature may

punish sex-offenders by both a statutory-maximum incarceration period and


____________________________________________


5 18 Pa.C.S.A. § 6312(d.1)((2)(i) provides that a conviction under Section
6312(d) is a felony of the third degree. The Crimes Code provides that a
person who has been convicted of a felony of the third degree may be
sentenced to imprisonment, which shall be fixed by the court at no more than
seven years. 18 Pa.C.S.A. § 1103(3).


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a limitless SORNA-registration period thereafter. See id. We held those two

punishments are separate and distinct. See id. Accordingly, sex-offenders’

SORNA registration periods are unrelated to whatever maximum-incarceration

period Chapter 11 of the Crimes Code establishes for their crimes.

Specifically, we recognized the following:

      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.[A.] § 9799.14 (“Sexual offenses and tier system”); 42
      Pa.C.S.[A.] § 9799.15 (“Period of registration”).         SORNA’s
      registration provisions are not constrained by [18 Pa.C.S.A. §]
      1103. Rather, SORNA’s registration requirements are an
      authorized, punitive measure separate and apart from [the]
      [a]ppellant’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 incarceration; in fact, the
      legislature mandated the opposite and required courts to impose
      registration requirements in excess of the maximum allowable
      term of incarceration.

Stafford, 194 A.3d at 173. See Commonwealth v. Bricker, ___ A.3d ___,

2018 WL 5093265 (Pa.Super. filed 10/19/18).

      Accordingly, we conclude that Appellant’s fifteen-year registration

requirement authorized by SORNA constitutes neither an illegal sentence nor

cruel and unusual punishment. Accordingly, Appellant is not entitled to relief.

      After examining the issues contained in the Anders brief, we concur

with counsel’s assessment that the appeal is wholly frivolous. “Furthermore,

after conducting a full examination of all the proceedings as required pursuant

to Anders, we discern no non-frivolous issues to be raised on appeal.”


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Yorgey, 188 A.3d at 1195. Thus, we grant counsel’s petition to withdraw and

affirm Appellant’s judgment of sentence.

     Petition to withdraw as counsel granted.       Judgment of sentence

affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/18/2019




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