J-S58013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NICHOLAS C. FEITL                          :
                                               :
                       Appellant               :   No. 152 WDA 2018

            Appeal from the Judgment of Sentence January 5, 2018
      In the Court of Common Pleas of Butler County Criminal Division at
                       No(s): CP-10-CR-0002389-2016


BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                            FILED DECEMBER 19, 2018

       Appellant, Nicholas C. Feitl, appeals from the judgment of sentence

entered on January 5, 2018, following his guilty plea for statutory sexual

assault and indecent assault.1           Upon review, we vacate the portion of

Appellant’s sentence for statutory sexual assault that required him to register

pursuant to the Sex Offender Registration and Notification Act (SORNA), 42

Pa.C.S.A. §§ 9799.10–9799.41. We affirm Appellant’s judgment of sentence

in all other respects.

       We briefly summarize the relevant facts and procedural history of this

case as follows.      In August 2016, Appellant, who was 29 years old at the

time, engaged in sexual misconduct with a fourteen-year-old female. On

October 20, 2017, Appellant pled guilty to the aforementioned charges. On

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1   18 Pa.C.S.A. §§ 3122.1(a)(1) and 3126(a)(3), respectively.
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December 28, 2017, the trial court sentenced Appellant to 18 to 42 months

of incarceration followed by a year of probation for statutory sexual assault

with a consecutive term of 12 months of probation for indecent assault. On

January 5, 2018, the trial court sua sponte entered an order correcting the

original sentencing order to reflect the proper statutory section for statutory

sexual assault as pled by Appellant.           On January 5, 2018, the trial court

notified Appellant that he was required to register pursuant to Tier II 2 of

SORNA for both of his sex offenses. This timely appeal resulted.3

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2 For purposes of sex offender registration, SORNA classifies sexual offenders
into the following three tiers:

       Those convicted of Tier I offenses are subject to registration for a
       period of fifteen years and are required to verify their registration
       information and be photographed, in person at an approved
       registration site, annually. 42 Pa.C.S.[A.] § 9799.15(a)(1), (e)(1).
       Those convicted of Tier II offenses are subject to registration for
       a period of twenty-five years and are required to verify their
       registration information and be photographed, in person at an
       approved registration site, semi-annually. 42 Pa.C.S.[A.]
       § 9799.15(a)(2), (e)(2).

       Those convicted of Tier III offenses are subject to lifetime
       registration and are required to verify their registration
       information and be photographed, in person at an approved
       registration site, quarterly. 42 Pa.C.S.[A.] § 9799.15(a)(3),
       (e)(3).

Commonwealth v. Muniz, 164 A.3d 1189, 1206-1207 (Pa. 2017).

3 Appellant filed a notice of appeal on January 23, 2018. On February 12,
2018, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on February 13, 2018. The trial court issued an opinion pursuant to



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       On appeal, Appellant presents the following issues for our review:

       I.     Whether the trial court erred, as a matter of law, by
              sentencing Appellant to a SORNA registration period in
              excess of the statutory maximum for the qualifying offense?

       II.    Whether the trial court erred, as a matter of law, by
              indicating on the record that [Appellant] would be subject
              to SORNA registration for an offense not included therein?

Appellant’s Brief at 18.

       For ease of disposition, we will examine Appellant’s second issue first.

In his second issue presented, Appellant contends that the trial court erred as

a matter of law by ordering him to register as a Tier II offender under SORNA

for statutory sexual assault, because there is no statutory authority for

registration for that offense. Appellant’s Brief at 45-46. The Commonwealth

concedes this point. See Commonwealth’s Brief at 12. Upon our review, 18

Pa.C.S.A. § 3122.1(a)(1), the crime to which Appellant pled guilty, is not one

of the enumerated crimes constituting a Tier II offense. See 42 Pa.C.S.A.

§ 9799.14 (sexual offenses and tier system). As such, we vacate the portion

of Appellant’s sentence requiring him to register as a Tier II offender for

statutory sexual assault. “If this Court determines that a sentence must be

corrected, we are empowered to either amend the sentence directly or to

remand the case to the trial court for resentencing.”     Commonwealth v.

Benchoff, 700 A.2d 1289, 1294 (Pa. Super. 1997).          Because there is no
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Pa.R.A.P. 1925(a) on March 2, 2018, requesting “that the judgment of
sentence be vacated and that the case be remanded for reconsideration of the
convictions in light of the holding[] in Commonwealth v. Muniz, 164 A.3d
1189 (Pa. 2017).” Trial Court Opinion, 3/2/2018, at *1 (unpaginated).

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additional action necessary by the trial court, we amend Appellant’s sentence

for statutory sexual assault directly and conclude resentencing is unwarranted

on this issue.

       In his first issue presented, relying principally upon our Supreme Court’s

decision in Muniz, Appellant argues:

       [R]egistration pursuant to SORNA should be declared
       unconstitutional as the statutorily prescribed periods of
       registration therein exceed the maximum sentences annexed to
       the corresponding crimes.          More specifically, as applied to
       Appellant, 25 years registration under SORNA constitutes an
       illegal sentence as it inflicts punishment in excess of his maximum
       sentence under 18 Pa.C.S.A. § 3126(a)(3)[(indecent assault)].[4]
       As such, Appellant respectfully requests that this Court vacate the
       25[-]year registration portion of his sentence.

Appellant’s Brief at 45. As previously mentioned, in its Rule 1925(a) opinion,

the trial court requests that we vacate Appellant’s judgment of sentence and

remand for reconsideration in light of Muniz. Trial Court Opinion, 3/2/2018,

at *1 (unpaginated).         However, this Court recently rejected the precise

argument Appellant currently advances. See Commonwealth v. Strafford,

194 A.3d 168, 173 (Pa. Super. 2018) (SORNA’s registration requirements are

authorized punitive measures separate and apart from a defendant’s term of

incarceration, the legislature did not limit the authority of the court to impose

registration requirements only within the maximum allowable term of


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4 Our amendment of Appellant’s sentence striking his registration requirement
for statutory sexual assault does not render this issue moot. Even after
amendment, Appellant retains a 25-year, Tier II registration requirement for
his indecent assault conviction.

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incarceration, and, in fact, the legislature requires courts to impose

registration requirements in excess of the maximum allowable term of

incarceration). Accordingly, Appellant is not entitled to relief on his first issue

presented.

      Judgment of sentence vacated and amended in part and affirmed in all

other respects. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2018




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