J-S45023-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA


                    v.

CALEB DANIEL FOX

                          Appellant                   No. 1364 MDA 2014


             Appeal from the Judgment of Sentence July 1, 2014
              In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0002759-2013


BEFORE: BOWES, WECHT AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                            FILED JANUARY 06, 2017

     This matter is again before this Court upon remand from the Supreme

Court. We vacate Appellant’s judgment of sentence in part, and remand for

imposition of a fifteen-year reporting requirement under the Sex Offender

Registration and Notification Act (“SORNA”), 42 Pa.C.S. § 9799.10 et seq.,

consistent   with   the   dictates    of   our   Supreme   Court’s   decision   in

Commonwealth v. Lutz-Morrison, 143 A.3d 891 (Pa. 2016).

     The trial court previously set forth the following facts:

     On or about June 4, 2013, [Appellant’s] computer was identified
     by Special Agent Nicole Laudeman of the Pennsylvania Attorney
     General’s Office as having potential download candidate (source)
     for at least seventeen (17) files of investigative interest with
     child pornographic content. On this same day, Special Agent
     Laudeman was able to make direct contact to [Appellant’s]
     computer . . . to download five (5) video files which each depict
     children under the age of eighteen (18) years engaged in sexual

* Former Justice specially assigned to the Superior Court.
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      acts and/or poses and is defined as child pornography in
      violation of the Pennsylvania Crimes Code Section 6312 – Sexual
      Abuse of Children.

Trial Court Opinion, 1/13/15, at 1. Based on the foregoing, Appellant was

charged with seventeen counts of child pornography pursuant to 42 Pa.C.S.

§ 6312(d), and one count of criminal use of a communication facility.

Appellant pled guilty to seven counts of child pornography and the single

count of criminal use of a communications facility. Subsequently, the court

imposed an aggregate sentence of twenty-four to thirty-two months

incarceration and two years probation.      In addition, the court classified

Appellant as a Tier III offender on the basis that he pled guilty to multiple

Tier I offenses under SORNA, thus subjecting him to lifetime reporting

requirements.

      Following his judgment of sentence, Appellant filed a timely motion to

modify his sentence, which the court denied, and a timely notice of appeal to

this court.   On appeal, we vacated Appellant’s judgment of sentence and

remanded to the trial court to award a single day of credit for time served.

Commonwealth v. Fox, 134 A.3d 102 (Pa.Super. 2015) (unpublished

memorandum). However, relying on then-binding Superior Court precedent,

we found the trial court did not err in subjecting Appellant to lifetime

registration under SORNA based on his guilty plea to multiple Tier I offenses.

Id. at 12.




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        Upon remand, the trial court resentenced Appellant with credit for one

day time served, and again classified him as a Tier III offender. Appellant

appealed to this Court raising another challenge to his Tier III classification.

Before this Court could decide Appellant’s second appeal, the Pennsylvania

Supreme Court permitted Appellant to file a petition for allowance of appeal

from our first decision nunc pro tunc. On October 20, 2016, the High Court

vacated that decision, and remanded this matter for proceedings consistent

with Lutz-Morrison, supra.

        In    Lutz-Morrison,   the   Supreme    Court   considered   the   proper

construction of language triggering the lifetime registration requirement

contained in section 9799.14 of SORNA.          That section reads, in relevant

part:

        (a)    Tier system established.—Sexual offenses shall be
               classified in a three-tiered system composed of Tier I
               sexual offenses, Tier II sexual offenses and Tier III sexual
               offenses.

        (b)    Tier I sexual offenses.—The following offenses shall be
               classified as Tier I sexual offenses:

        ...

               (9) 18 Pa.C.S. § 6312(d) (relating to sexual abuse of
               children).

        ...

        (d)    Tier III sexual offenses.—The following offenses shall be
               classified as Tier III sexual offenses:

        ...

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            (16) Two or more convictions of offenses listed as Tier I or
            Tier II sexual offenses.

42 Pa.C.S. § 9799.14(a)-(d).      Specifically, the High Court construed the

phrase “two or more convictions,” as stated in section 9799.14(d)(16), as

requiring “an act, a conviction, and a subsequent act to trigger lifetime

registration for multiple offenses subject to a fifteen- or twenty-five-year

period of registration.”   Lutz-Morrison, supra at 895 (relying on A.S. v.

Pa. State Police, 143 A.3d 896 (Pa.Super. 2016).

      Here, Appellant was charged in a single information arising from the

same criminal episode. Appellant was a first-time offender and pled guilty to

seven Tier I offenses. Appellant was not determined to be a sexually violent

predator. As Appellant’s conduct amounted to one act and one conviction

under Lutz-Morrison, the trial court erred in classifying him a Tier III

offender subject to lifetime reporting requirements.       Thus, we vacate

Appellant’s classification as a Tier III offender, and remand for resentencing

to classify Appellant as a Tier I offender subject to a fifteen-year reporting

requirement under SORNA.




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        Judgment of sentence affirmed in part and reversed in part.        Case

remanded for resentencing. Jurisdiction relinquished.

        Judge Wecht did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2017




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