J-A06029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRETT ANTHONY LEMANSKI                     :
                                               :
                       Appellant               :   No. 92 MDA 2018

           Appeal from the Judgment of Sentence September 5, 2017
    In the Court of Common Pleas of Cumberland County Criminal Division at
                       No(s): CP-21-CR-0003113-2016


BEFORE: OTT, J., NICHOLS, J., and PELLEGRINI, J.*

DISSENTING MEMORANDUM BY PELLEGRINI, J.:                  FILED JUNE 21, 2019

        While there is no doubt that that Brett Anthony Lemanski (Lemanski)

must comply with the Sex Offender Registration and Notification Act (SORNA),

I would hold that the trial court had no jurisdiction to impose, as part of the

sentence, SORNA registration because those requirements are imposed

independently as a collateral consequence of his conviction of one of the

enumerated crimes. Accordingly, I respectfully dissent.

        Lemanski pled guilty to corruption of minors and possession of child

pornography.1 The trial court, among other things, ordered Wilson “to comply


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*   Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 6301(a)(1)(ii) (third-degree felony); and 6312(d) (third-
degree felony).
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with the 15-year SORNA registration requirement . . and to complete sexual

offender evaluation and comply with all recommendations for treatment.”

Trial Court Sentencing Order. Lemanski then appealed the sentence claiming

that the trial court had no authority to impose SORNA registration making that

portion of the trial court sentencing order illegal and that he did not have to

register.

       The majority properly relies on our recent decision in Commonwealth

v. Martin, 205 A.3d 1247 (Pa. Super. 2019),2 that the trial court’s imposition

of the SORNA registration requirement was not an illegal sentence. In Martin,

we held that even though 42 Pa.C.S. § 9721 does not include registration as

a sentencing alternative, SORNA independently authorized the registration of

sexual offenders. In arriving at that conclusion in Martin, we relied on our

decision in Commonwealth v. Strafford, 194 A.3d 168, 172-73 (Pa. Super.




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2 Martin, as well as numerous other cases challenging SORNA, were the result
of our Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189
(Pa. 2017). In that case, our Supreme Court held that the registration
requirements of the former version of SORNA were punitive for purposes of
the constitutional analysis of the retroactive application of increasing SORNA
registration requirements. However, Muniz does not hold that SORNA is
unconstitutional or invalidate its registration requirements. It holds only that
SORNA violates the ex post facto clause of the Pennsylvania Constitution
because when new harsher provisions are applied retroactively, they are
punitive. See Commonwealth v. Hart, 174 A.3d 660, 667 n.9 (Pa. Super.
2017). Also, when SORNA was reenacted, the General Assembly specifically
stated that it shall not be construed as punitive. 42 Pa.C.S. § 9799.11(b).


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2018), where, recognizing that SORNA registration requirements were not

authorized as a sentencing option, we went on to say:

     However, most sentencing alternatives are not tied to the
     maximum authorized term of incarceration. For example, the
     legislature has authorized courts to include in sentences the
     requirement that a defendant pay a fine or restitution. These
     categories of punishment are not limited by the maximum period
     of incarceration; rather, the legislature set different maximum
     authorized amounts of punishment a court may impose as part of
     its sentence. See, e.g., 18 Pa.C.S. § 1101 (defining maximum
     fines); 18 Pa.C.S. § 1106 (providing statutory scheme for
     restitution for injuries to person or property).

     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. § 9799.14 (“Sexual offenses and tier system”); 42
     Pa.C.S. § 9799.15 (“Period of registration”). SORNA’s registration
     provisions are not constrained by Section 1103. Rather, SORNA’s
     registration requirements are an authorized punitive measure
     separate and apart from Appellant’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.
     (Emphasis added.)

     However, I disagree with Martin and Strafford because the General

Assembly did not authorize courts to order SORNA registration requirements

as part of the sentencing order. Let me explain.

     It is well-settled that, “If no statutory authorization exists for a

particular sentence, that sentence is illegal and subject to correction.      An

illegal sentence must be vacated.” Commonwealth v. Leverette, 911 A.2d

998, 1001–02 (Pa. Super. 2006) (citations omitted). There is no dispute that

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Section 9721(a) of the Sentencing Code, which lists the type of sentences that

can be imposed, does not include any authorization to impose SORNA

requirements.

      Under SORNA, the sole obligation of the sentencing judge is to merely

“inform” the offender of his or her obligation to register and its requirements.

42 Pa.C.S. § 9799.20. Moreover, the court’s failure to do so is irrelevant:

“Failure by the court to provide the information . . . to correctly inform . . . or

to require a sexual offender to register shall not relieve the sexual offender

from the requirements of this subchapter.” 42 Pa.C.S. § 9799.23(b)(1). In

fact, with limited exceptions, a court has “no authority to relieve a sexual

offender from the duty to register . . . or to modify the requirements[.]” 42

Pa.C.S. § 9799.23(b)(2).

      Contrary to the holdings in both Martin and Stafford, SORNA does not

give the trial court any authority to impose SORNA obligations as part of the

sentence but only provides that it is to inform the offender of his or obligation

to register and his obligations under that Act. Even if the sentencing court

does not carry that out obligation, the General Assembly stated that does not

matter, informed or not informed, the offender is still required to register and

comply with SORNA’s provisions.          All of this leads to the inescapable

conclusion that under SORNA, the trial court cannot include that SORNA

registration as part of sentencing because the General Assembly made clear

that offenders convicted of the enumerated crimes have an independent


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mandatory      obligation to     register      under   SORNA as   a   civil   collateral

consequence of his or her crime.3

       Because SORNA requirements cannot be imposed as part of the

sentence and are imposed independently as a collateral consequence of

criminal conviction, the trial court had no sentencing authority to impose

compliance with SORNA as part of its sentencing order. Accordingly, I dissent

because I would vacate that portion of the sentencing order.4




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3 The sentencing court has no role in the enforcement of SORNA registration
and reporting requirements. To enforce its provisions, the General Assembly
created an administrative scheme by imposing an obligation on the offender
to register with the Pennsylvania State Police (PSP) and otherwise comply with
its provisions. See 42 Pa.C.S. § 9799.55; 42 Pa.C.S.A. § 9799.56. Generally,
the PSP is in charge of the overall administration, implementation and
enforcement of SORNA. If an offender fails to register or otherwise provide
the requisite notices (e.g., change of address), the PSP is authorized to bring
charges for failure to do so. See 42 Pa.C.S. § 9799.56(d). An offender can
challenge PSP’s administration or the legality of SORNA requirements. The
PSP has been given standing to appear and contest a filing in a court of this
Commonwealth which seeks to challenge in any way the obligation of an
individual required to register under SORNA. See 42 Pa.C.S. § 9799.74.

4Necessarily, I would reverse Martin and Stafford to the extent that the trial
court can impose SORNA requirements as part of sentencing.

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