J. S67045/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                            Appellee        :
                                            :
                    v.                      :
                                            :
                                            :
SHAUN FITZGERALD,                           :
                                            :
                            Appellant       :     No. 1129 WDA 2014


               Appeal from the Judgment of Sentence July 1, 2014
                 In the Court of Common Pleas of Fayette County
                Criminal Division No(s).: CP-26-CR-0001227-2012

BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 11, 2014

        Appellant, Shaun Fitzgerald, appeals from the judgment of sentence

entered in the Fayette County Court of Common Pleas following his guilty

plea to rape of a child.1 He avers: (1) the lifetime registration requirement

of the Pennsylvania Sexual Offender Registration and Notification Act 2

(“SORNA”) is unconstitutional because the statutory maximum sentence for

rape of a child is twenty years; and (2) his sentence of six to twenty years’




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3121(c).
2
    42 Pa.C.S. §§ 9799.10-9799.41.
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imprisonment was excessive.3 We affirm.

        On April 8, 2014, Appellant entered an open guilty plea to rape of a

child, statutory sexual assault, corruption of minors,4 and two counts each of

involuntary deviate sexual intercourse, aggravated indecent assault, and

indecent assault.5 On July 1, 2014, the trial court imposed a sentence of six

to twenty years’ imprisonment for rape of a child. The court found Appellant

was not a sexually violent predator, but ordered him to comply with lifetime

registration under Section 9799.23 of SORNA.

        Appellant filed a timely post-sentence motion, arguing his sentence

was “excessive in view of the circumstances surrounding this matter,” “a

lighter sentence would be sufficient for any rehabilitative needs,” and his

“sentence of a life time registration is unconstitutional” because it “exceeds

the statutory maximum penalty for [his] offense.” Appellant’s Post-Sentence




3
  The certified record did not include the July 1, 2014 sentencing transcript,
which we deem is necessary for our review of Appellant’s sentencing issues.
Upon informal inquiry by this Court, the trial court provided that transcript
as a supplemental record. We remind Appellant’s counsel, “Our law is
unequivocal that the responsibility rests upon the appellant to ensure that
the record certified on appeal is complete in the sense that it contains all of
the materials necessary for the reviewing court to perform its duty.” See
Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008) (citations
omitted).
4
    18 Pa.C.S. §§ 3122.1(a), 6301(a)(1)(ii).
5
  18 Pa.C.S. §§ 3123(a)(7), (b), 3125(a)(7), (8), 3126(a)(7), (8).         The
victim in this case was eleven years old.



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Mot. for Modification of Sentence, 7/3/14, at ¶¶ 3-5. The court denied the

motion and Appellant took this timely appeal.

       Appellant’s first claim is that SORNA is unconstitutional because the

lifetime   “registration   requirement    is   beyond   the    statutory   maximum

sentence for the crime that [he] entered his plea.”           Appellant’s Brief at 9.

Appellant avers that this “extensive registration period constitutes an

unusual punishment as barred by both the Pennsylvania Constitution and the

United States Constitution.” Id. Appellant also reasons,

           It has been suggested that the registration requirements
           of SORNA, and previous versions of Megan’s Law, are
           actually civil penalties. If that is the case, then the court
           should not be imposing the requirements at the time of
           sentencing,” because the restrictions “can also result in
           criminal penalties . . . if the defendant does not.

Id. Appellant then relies on Commonwealth v. Williams, 832 A.2d 962

(Pa. 2003),6 for the proposition that “penalties for lifetime registration with

potential for lifetime imprisonment were manifestly in excess of what was

needed to ensure compliance.” Appellant’s Brief at 10. We find no relief is

due.

       We find the Superior Court’s recent decision in Commonwealth v.

McDonough, 96 A.3d 1067 (Pa. Super. 2014), controls our analysis. The

trial court opinion relies on and extensively cites McDonough in support of


6
  While providing the citation for Williams, 832 A.2d 962, Appellant states
the case’s name as “Commonwealth v. Gommer.” Appellant’s Brief at 10.




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its denial of Appellant’s claim. Trial Ct. Op., 6/29/14, at 3-4. We note that

Appellant’s counsel, Deanna Lyn Fahringer, Esq. (“Counsel”), 7 is from the

same office as the defendant/appellant’s attorney in McDonough—the

Fayette County Public Defender’s Office. Counsel now raises issues identical

to those in McDonough—which this Court rejected.            Despite the Fayette

County Public Defender Office’s involvement in the McDonough case and

the trial court’s discussion of McDonough, Counsel makes no mention of

that decision in the instant appellate brief.     We remind Counsel that the

argument in an appellate brief shall include “discussion and citation of

authorities as are deemed pertinent.”8 See Pa.R.A.P. 2119(a).

        We now review the McDonough decision. This Court summarized,

               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[.] Section 9799.14 of SORNA establishes a three-
           tiered system of specifically enumerated offenses requiring
           registration for sexual offenders for differing lengths of
           time.     Pursuant to section 9799.15(a)(1), a person
           convicted of a Tier I offense . . . must register for 15
           years. A Tier II offender must register for 25 years, while
           a Tier III offender must register for the remainder of his or
           her life. 42 Pa.C.S. § 9799.15(a)(2), (a)(3).

7
    Counsel represented Appellant at the plea hearing as well.
8
  Although the defendant in McDonough sought allowance for appeal with
our Supreme Court on July 31, 2014, a Superior Court “decision remains
binding precedent as long as the decision had not been overturned by our
Supreme Court.” See In re S.T.S., 76 A.3d 24, 44 (Pa. Super. 2013),
appeal denied, 91 A.3d 163 (Pa. 2014).



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McDonough, 96 A.3d at 1070 (some citations omitted).

      In McDonough, the defendant, who was not found to be a sexually

violent predator, was convicted of a “Tier I” offense and ordered to register

for fifteen years.   Id. at 1068, 1070, 1071.    On appeal, he argued “it is

unconstitutional and illegal to require an individual to register as a sex

offender for 15 years for a crime that carries a maximum penalty of only two

years in prison[ and] that the registration requirements of SORNA and its

predecessor statute, Megan’s Law,[   ]
                                         are not civil in nature because they

impose restrictions and requirements which, if violated, can result in

imprisonment.” Id. at 1070. The defendant also relied on Williams, 832

A.2d 962, “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.”

McDonough, 96 A.3d at 1070.

      This Court disagreed. We first noted,

         In Williams, our Supreme Court was asked to decide
         whether certain provisions of Megan’s Law II were
         constitutional as it applied to sexually violent predators
         (SVP’s). The Williams Court specifically held that the
         registration, notification, and counseling provisions of
         Megan’s Law II, to offenders deemed to be SVP’s, were
         non-punitive, regulatory measures supporting a legitimate
         governmental purpose. However, the Court did find that
         the prescribed penalties that attach to SVP’s for failure to
         register and verify their residence were unconstitutionally
         punitive and, therefore, invalidated those provisions.


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McDonough, 96 A.3d at 1070-71 (citations omitted).           This Court then

considered the Pennsylvania Supreme Court’s discussion in Commonwealth

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

        Because we do not view the registration requirements as
        punitive but, rather, remedial, we do 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.

McDonough, 96 A.3d at 1071 (quoting Gaffney, 733 A.2d at 622).           The

McDonough court also referred to Commonwealth v. Benner, 853 A.2d

1068 (Pa. Super. 2004):

        The registration provisions of Megan’s Law do not
        constitute criminal punishment.         The 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.

                                 *    *    *

        Because the registration requirements under Megan’s Law
        impose only collateral consequences of the actual
        sentence, their application is not limited by the factors that
        control the imposition of sentence. T hus, while a
        defendant may be subject to conviction only under
        statutes in effect on the date of his acts, and sentence
        configuration under the guidelines in effect on that same
        date, the application of the registration requirements
        under Megan’s Law is not so limited. This is so due to the
        collateral nature of the registration requirement.



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McDonough, 96 A.3d at 1071 (quoting Benner, 853 A.2d at 1070-71).

The McDonough Court then held: “While Gaffney and Benner 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.” McDonough, 96 A.3d at

1071.     The court thus rejected the defendant’s claim that SORNA was

unconstitutional. Id.

        As stated above, Appellant advances identical arguments in the case

sub judice. We agree with the trial court that find McDonough is directly on

point. Accordingly, we find no relief due on this claim.

        Appellant’s second claim on appeal is that his sentence of six to twenty

years’ imprisonment was excessive.        The sole legal authority cited is as

follows: “The general principle underlying the imposition of sentence calls for

the balancing of public protection, the gravity of the offense and,

particularly, the rehabilitative needs of the defendant.         42 Pa.C.S. §

9721(b); Commonwealth v. Ennis, 574 A.2d 1116 (Pa. Super. 1990).”

Appellant’s Brief at 10.     Appellant maintains that he “came forward and

admitted the crimes for which he was charged,” explained to police that the

victim asked him “for a ‘blow-job’ because [the victim] wanted to see what it

felt like,” he performed the sexual act on the victim but stopped when the

victim told him to stop, he immediately felt remorse, and he had no prior



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criminal record. Id. at 10-11. We find no relief is due.

      Appellant’s claim goes to the discretionary aspects of his sentence.9

“The right to appeal the discretionary aspects of a sentence is not absolute.”

Shugars, 895 A.2d at 1274. “[I]ssues challenging the discretionary aspects

of a sentence must be raised in a post-sentence motion or by presenting the

claim to the trial court during the sentencing proceedings.”              Id. (citation

omitted). In addition,

          “[a]n appellant must, pursuant to Pennsylvania Rule of
          Appellate Procedure 2119(f), articulate ‘the manner in
          which the sentence violates either a specific provision of
          the sentencing scheme set forth in the Sentencing Code or
          a particular fundamental norm underlying the sentencing
          process.’”    We examine an appellant’s Rule 2119(f)
          statement to determine whether a substantial question
          exists.

Id. (citations omitted).           Finally, a “claim that the sentencing court

disregarded       rehabilitation   and   the   nature    and   circumstances    of   the

offense   .   .     .   presents    a    substantial    question   for   our   review.”

Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa. Super. 2013), appeal

denied, 91 A.3d 161 (Pa. 2014).

      In the case sub judice, Appellant has preserved his claim for appeal, as

9
  “[A] guilty plea which includes sentence negotiation ordinarily precludes a
defendant from contesting the validity of his . . . sentence other than to
argue that the sentence is illegal or that the sentencing court did not have
jurisdiction[.]” Commonwealth v. Shugars, 895 A.2d 1270, 1274 n.5 (Pa.
Super. 2006) (citation omitted). However, when a defendant enters an open
plea agreement, he “will not be precluded from appealing the discretionary
aspects of the sentence.” Id. In the instant case, Appellant entered an open
guilty plea with no agreement as to sentence.



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he had argued in his post-sentence motion that his sentence was excessive

and “a lighter sentence would be sufficient for any rehabilitative needs.”

See Appellant’s Post-Sentence Mot. at ¶¶ 3-4. Counsel, however, has not

included a separate       Rule   2119(f) statement     in    the    appellate      brief.

Nevertheless,   because    the   Commonwealth    has        not    objected   to    this

deficiency and we may discern the gist of Appellant’s claim, we decline to

find waiver on the lack of a 2119(f) statement.10 See Shugars, 895 A.2d at

1274. Finally, Appellant’s claim, that the court did not properly consider the

circumstances of this case and his rehabilitative needs, presents a

substantial question invoking our review. See Dodge, 77 A.3d at 1273.

      “Having concluded that Appellant has posited substantial questions for

our review, we proceed to examine the merits of his sentencing challenges.

‘In reviewing a challenge to the discretionary aspects of sentencing, we

evaluate the court's decision under an abuse of discretion standard.’”               Id.

(citation omitted).

      At the plea hearing, the Commonwealth alleged that Appellant

“performed oral sex on the child who . . . was 11,” “off of Main Street . . .

under the bridge by the Catholic War Veterans.”             N.T. Plea Proceedings,



10
   “[W]e disapprove of Appellant's failure to indicate where his sentences fell
in the sentencing guidelines and what provision of the sentencing code was
violated.”   Dodge, 77 A.3d at 1271.            However, again because the
Commonwealth has not objected to the adequacy of Appellant’s argument,
we decline to find waiver on this defect. See id.



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4/8/14, at 5. Appellant agreed with this recitation. Id. In its opinion, the

trial court stated it

          considered, at sentencing, the nature of the offenses, the
          number of offenses to which Appellant entered pleas of
          guilty, the pre-sentence report prepared . . . Appellant’s
          rehabilitative needs and the gravity of the offenses. [It]
          also stated on the record that [it] believed that a lesser
          sentence would depreciate the seriousness of these crimes
          and that Appellant was in need of correctional treatment
          that can be provided most effectively by his commitment
          to an institution.

Trial Ct. Op. at 5 (citing N.T. Sentencing, 7/1/14, at 6).

      A review of the sentencing transcript supports the trial court’s

reasoning.    At the sentencing hearing, Attorney Fahringer requested as

sentence in the mitigated range, arguing Appellant had no prior record

score, did not employ force in the underlying offense, “was very cooperative

with [police] and admitted to the alleged offense.” N.T. Sentencing, 7/1/14,

at 2-3. The trial court responded that its sentence, of six to twenty years’

imprisonment, was “at the top of the mitigated range[ but] also the bottom

of the standard range.”    Id. at 3.   These statements indicate the court’s

awareness and consideration of the factors Appellant now advances on

appeal. Accordingly, we find no relief due on his claim and do not find the

trial court abused its discretion in imposing the sentence of six to twenty

years for Appellant’s rape of a child conviction.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/11/2014




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