J-S28035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL ALLEN BOWER, JR.,                  :
                                               :
                       Appellant               :       No. 381 MDA 2017

            Appeal from the Judgment of Sentence January 31, 2017
             in the Court of Common Pleas of Cumberland County,
              Criminal Division at No(s): CP-21-CR-0000524-2016

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                               FILED JULY 23, 2018

        Michael Allen Bower, Jr. (“Bower”), appeals from the judgment of

sentence imposed following his negotiated guilty plea to two counts of

corruption of minors and one count of indecent assault.1 We affirm.

        The trial court set forth the factual and procedural history underlying

this appeal as follows:

        In October 2015, [Bower] had indecent contact with MB, a minor,
        which included the touching of MB’s genitals. Pursuant to the
        negotiated guilty plea, two counts of Aggravated Indecent Assault




____________________________________________


1   See 18 Pa.C.S.A. §§ 6301(a)(1)(i) and (a)(1)(ii), 3126(a)(8).
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       and one count of Indecent Assault[2] were dismissed when [Bower]
       pled guilty to … [the above-mentioned offenses].[FN 1] On January
       31, 2017, [Bower] was sentenced to a total of eleven and a half
       to twenty-three and a half months in county prison, along with
       three years of probation, fines, restitution, and a 25-year SORNA
       registration requirement.

          [FN 1][Bower] is over the age of eighteen and is between
          four and eight years older than the victim.

          What followed after sentencing is a convoluted procedural web.
       On March 2, 2017, defense counsel filed a Notice of Appeal to the
       Superior Court of Pennsylvania. In response, on March 8, 2017,
       th[e trial c]ourt directed counsel to file a [Pa.R.A.P. 1925(b)]
       concise statement of matters complained of on appeal within
       twenty-one days. On April 11, 2017, 34 days after the Order of
       March 2, 2017, defense counsel filed the [c]oncise [s]tatement,
       raising the issue of SORNA’s constitutionality for the very first
       time.

          On April 13, 2017, this [c]ourt filed its [Pa.R.A.P.] 1925
       [O]pinion, setting forth its inability to address the constitutionality
       issue as it had never before been raised.[FN 2] On June [1]2, 2017,
       [Bower] filed an Application for Remand with the Superior Court[,
       asserting ineffectiveness by defense counsel for failing to file post-
       sentence motions and a timely Rule 1925(b) concise statement].
       On June 30, 2017, the Pennsylvania Superior Court issued an
       Order directing th[e trial c]ourt to hold a hearing within thirty (30)
       days of its Order to address [Bower’s] requests to file a post-
       sentence motion and a concise statement[,] nunc pro tunc.
       Having not received that Order in time to have a hearing within
       the Superior Court’s deadline, th[e trial c]ourt submitted findings
       of fact to the Superior Court, and a determination that would
____________________________________________


2  See 18 Pa.C.S.A. §§ 3125(a)(1) and (a)(8), 3126(a)(1). Notably to the
instant appeal, a conviction of either of the two counts of aggravated indecent
assault charged in this case requires a defendant to register for his or her
lifetime as a sexual offender pursuant to the Sexual Offenders Notification and
Registration Act (“SORNA”). See 42 Pa.C.S.A. § 9799.14(d)(7). Additionally,
we note that SORNA, which became effective on December 20, 2012, was
recently amended, on February 21, 2018, by H.B. 631, 202 Gen. Assem., Reg.
Sess. (Pa. 2018), Act 10 of 2018, and as further amended, on June 12, 2018,
by H.B. 1952, 202 Gen. Assem., Reg. Sess. (Pa. 2018), Act 29 of 2018.

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       permit [Bower] to file a post-sentence motion[,] nunc pro tunc.
       [On July 17, 2017, Bower filed his Post-sentence Motion, nunc pro
       tunc.]

                In that [O]pinion, th[e trial c]ourt also noted that
           [FN 2]

           [Bower’s] [C]oncise [S]tatement was filed significantly
           beyond the 21-day deadline.

              On July 21, 2017, the Commonwealth filed with the Superior
       Court an “Objection to the trial court’s ‘findings of fact and order’
       granting nunc pro tunc relief[” (hereinafter the “nunc pro tunc
       Objection”),3 in response] to which [Bower] filed an Application to
       Strike on August 4, 2017. The Commonwealth did not respond to
       the Application to Strike, and the Superior Court entered an Order
       on September 13, 2017[,] directing th[e trial c]ourt to hold a
       hearing within thirty (30) days to address the [P]ost-sentence
       [M]otion[,] nunc pro tunc.[FN 3] That hearing was held before th[e
       trial c]ourt on October 10, 2017 ….

                In that Order, the Superior Court directed counsel as
           [FN 3]

           to how to proceed depending on whether th[e trial c]ourt
           granted or denied the [P]ost-sentence [M]otion[,] nunc
           pro tunc.

Trial Court Opinion and Order, 10/27/17, at 1-3 (some footnotes added, two

footnotes in original, footnote omitted).

       By an Order entered on October 27, 2017, the trial court denied Bower’s

Post-sentence Motion, nunc pro tunc.           Bower then filed a timely Notice of

Appeal.

       Bower now presents the following issues for our review:

       A. Did the trial court err with its October 2[7], 2017 Order when
          it determined that nunc pro tunc relief should be denied, as
          [Bower] states a claim regarding the constitutionality[,] and
          thus, the legality of his criminal sentence?
____________________________________________


3By an Order entered on August 2, 2017, this Court deferred decision on the
nunc pro tunc Objection to the merits panel.

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      B. Did the trial court err when it determined that the criminal
         penalty provisions for both corruption of minors and indecent
         assault did not violate the constitutional protections of the
         Equal Protection Clauses of the State and Federal
         Constitutions “as applied” to [Bower]?

Brief for Appellant at 10 (capitalization omitted).

      Preliminarily, we must address the Commonwealth’s nunc pro tunc

Objection and the propriety of the trial court’s granting Bower permission to

file a Post-sentence Motion, nunc pro tunc. The Commonwealth asserts that

      [Bower] is not entitled to nunc pro tunc relief because his failure
      to satisfy the jurisdictional time requirements was not a result of
      extraordinary circumstances such as fraud, a breakdown in the
      court’s operations or non-negligent circumstances. Criss v.
      Wise, 781 A.2d 1156[, 1159] (Pa. 2001) [(setting forth the
      principles governing appeals nunc pro tunc, and stating that an
      appellate court may grant a party an appeal nunc pro tunc, in
      “certain extraordinary,” “non-negligent circumstances”)].

                                  ***

      While this case does not involve an untimely appeal, but rather an
      untimely [P]ost-sentence [M]otion and [Rule] 1925 [S]tatement,
      given this dual waiver, and in light of the negotiated plea
      agreement and [Bower’s] failure to challenge the validity of his
      plea, it does not appear a lesser nunc pro tunc standard applies.
      Here, [Bower] has not alleged any basis for filing his post-
      sentence motions[,] nunc pro tunc.

Nunc pro tunc Objection, 7/21/17, ¶¶ 12, 14-15 (paragraph break omitted).

      Initially, nothing in the Criss decision indicates that it is applicable to

nunc pro tunc relief insofar as post-sentence motions are concerned.




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Moreover, the trial court exercised its discretion4 in determining that Bower

had presented sufficient cause to excuse his late filing of his Post-sentence

Motion and Rule 1925(b) Concise Statement,5 namely, defense counsel’s

admission of her ineffectiveness. We discern no abuse of the court’s discretion

in this regard. Finally, in its brief, the Commonwealth concedes that even if

this panel were to rule that the trial court improperly permitted Bower to file

a Post-sentence Motion and Concise Statement, nunc pro tunc, “it is likely the

underlying issue would be eventually addressed by the Court within the realm

of the Post Conviction Relief Act [(“PCRA”)].” Commonwealth’s Brief at 12

n.4.6 Therefore, we deny the Commonwealth’s nunc pro tunc Objection.




____________________________________________


4  See Commonwealth v. Moore, 978 A.2d 988, 991 (Pa. Super.
2009) (stating that “[t]o be entitled to file a post-sentence motion[,] nunc pro
tunc, a defendant must, within 30 days after the imposition of sentence,
demonstrate sufficient cause, i.e., reasons that excuse the late filing. When
the defendant has met this burden and has shown sufficient cause, the trial
court must then exercise its discretion in deciding whether to permit the
defendant to file the post-sentence motion[,] nunc pro tunc.” (citation, ellipses
and emphasis omitted)).

5  Rule 1925(b) provides, in relevant part, that, “[i]n extraordinary
circumstances, the judge may allow for the filing of a Statement or amended
or supplemental Statement nunc pro tunc.” Pa.R.A.P. 1925(b)(2); see also
Commonwealth v. Burton, 973 A.2d 428, 431 (Pa. Super. 2009) (en banc)
(stating that under subsection 1925(c)(3), governing remand, “the remedy
now for failure to file a 1925 concise statement is remand to allow nunc pro
tunc filing of the statement.”).

6Given defense counsel’s admission of her ineffectiveness, Bower would be
entitled to collateral relief if he filed a timely PCRA petition asserting this
matter, which would only serve to waste valuable judicial and legal resources.

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      In his first issue, Bower argues that the trial court erred in denying his

Post-sentence Motion, nunc pro tunc, where the punitive sexual offender

registration requirement of his sentence was rendered illegal by recent case

law. See Brief for Appellant at 17-18. Namely, Bower cites the Pennsylvania

Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa.

2017) (holding that application of SORNA’s longer registration periods relative

to convictions which occurred in the pre-SORNA timeframe violates the Ex

Post Facto Clause of the Pennsylvania Constitution).

      Initially, we note that Bower did not reference Muniz in his Post-

sentence Motion, nunc pro tunc. See Pa.R.A.P. 302(a) (stating that a claim

cannot be raised for the first time on appeal).     Nevertheless, contrary to

Bower’s assertion, Muniz is simply inapplicable. SORNA became effective on

December 20, 2012. Bower was not convicted until January 31, 2017, and

was therefore always subject to SORNA’s registration provisions.        See 42

Pa.C.S.A. § 9799.15.      Thus, Muniz, which concerns only the retroactive

application of the SORNA registration provisions, does not apply, and Bower’s

first issue thus fails.

      In his second issue, Bower contends that he

      is entitled to relief from both the 15[-]year and the 25[-]year
      registration requirements [under SORNA] for corruption of minors
      and indecent assault, because to require [Bower] to register based
      upon a conviction of such crimes violates the Equal Protection
      [C]lauses of the state and federal constitutions “as applied” to
      [Bower].




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Brief for Appellant at 19 (footnote and internal citations omitted); see also

id. at 21 (pointing out that “[e]ven if a statute is determined by a court that

a facial attack to the constitutionality of a statute has failed, the U.S. Supreme

Court has nevertheless … acknowledged that litigants under different

circumstances may bring cases attacking the same statute as applied to

them.”) (citing, inter alia, Washington v. Glucksberg, 521 U.S. 702, 735

n.24 (1997)).

      Specifically, Bower asserts that SORNA is unconstitutional, as applied to

him, insofar as there is an unlawful disparity in the registration periods

applicable to different sex offenses. Id. at 24-25 (pointing out that statutory

sexual assault requires no period of registration, whereas the above-

mentioned offenses of which Bower was convicted do).

      In connection with this claim, the trial court concisely set forth the

relevant SORNA registration provisions and offenses as follows:

      On the basis of the same conduct, [Bower] pled guilty to indecent
      assault, … under 18 Pa.C.S. § [3]126(a)(8)[,] which provides, in
      relevant part, “[a] person is guilty of indecent assault if the person
      has indecent contact with the complainant … and the complainant
      is less than 16 years of age and the person is four or more years
      older than the complainant….” Indecent assault under
      [subsection] 3126(a)(8) is a misdemeanor of the second degree.
      18 Pa.C.S. § 3126(b)(1). Under SORNA, indecent assault[,] under




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        18 Pa.C.S. § 3126(a)(8)[,] is a Tier II sexual offense,[7] requiring
        registration for 25 years. 42 Pa.C.S. § 9799.14(c)(1.3); 42
        Pa.C.S. § 9799.15(2). However, statutory sexual assault, which
        is a felony of the second degree, is committed, in relevant part,
        “when that person engages in sexual intercourse with a
        complainant to whom the person is not married who is under the
        age of 16 years and that person is … four years older but less than
        eight years older than the complainant.”               18 Pa.C.S.
        § 3122.1(a)(1). [Bower] now argues that the more serious crime
        of statutory sexual assault requires no registration, while the
        “lesser” crime of indecent assault, to which he pled guilty, requires
        registration for 25 years.

Trial Court Opinion and Order, 10/27/17, at 3-4 (footnote added).

        Preliminarily, we note that “settled Pennsylvania law provides a

restraining principle that counsels against reaching a constitutional question

if a non-constitutional ground for the decision is available.” Commonwealth

v. Farabaugh, 136 A.3d 995, 1001 (Pa. Super. 2016) (citations, quotation

marks and brackets omitted); see also id. (where a convicted sex offender

raised     constitutional     challenges       to   SORNA’s   registration/reporting

requirements, declining to address such challenges where the matter could be




____________________________________________


7   As our Supreme Court explained,

      SORNA added crimes to the list defined as sexually violent offenses,
      and established a three-tiered system for classifying such offenses
      and their corresponding registration periods. Tier I offenses require
      registration for 15 years; Tier II offenses mandate 25 years of
      registration; and Tier III offenses obligate an offender to register for
      his or her lifetime, respectively.

Commonwealth v. Martinez, 147 A.3d 517, 522 (Pa. 2016) (citations and
quotation marks omitted).

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resolved   under   state   contract   law   concerning   enforceability   of   plea

agreements).

      In the instant case, Bower’s sentence and periods of sex offender

registration were the product of a plea bargain. Concerning plea bargains,

this Court has observed as follows:

             The reality of the criminal justice system is that nearly all
      criminal cases are disposed of by plea bargains: [N]inety-seven
      percent of federal convictions and ninety-four percent of state
      convictions are the result of guilty pleas. Plea bargaining is not
      some adjunct to the criminal justice system; it is the criminal
      justice system. Accordingly, it is critical that plea agreements are
      enforced, to avoid any possible perversion of the plea bargaining
      system.     The disposition of criminal charges by agreement
      between the prosecutor and the accused, is an essential
      component of the administration of justice.                 Properly
      administered, it is to be encouraged. …

            Assuming the plea agreement is legally possible to fulfill,
      when the parties enter the plea agreement and the court accepts
      and approves the plea, then the parties and the court must abide
      by the terms of the agreement. Specific enforcement of valid plea
      bargains is a matter of fundamental fairness. The terms of plea
      agreements are not limited to the withdrawal of charges, or the
      length of a sentence.       Parties may agree to—and seek
      enforcement of—terms that fall outside these areas.

Id. (citations, quotation marks, and ellipses omitted).

      Here, the trial court cogently addressed Bower’s instant claim as follows:

              As noted above, [Bower] was initially charged with two
      counts of Aggravated Indecent Assault, under 18 Pa.C.S.
      § 3125(a)(1) and 18 Pa.C.S. § 3125(a)(8). Under the dictates of
      SORNA, both of these crimes constitute a “Tier III” violation,
      resulting in a lifetime registration requirement.        42 Pa.C.S.
      § 9799.14(d)(7); 42 Pa.C.S. § 9799.15(a)(3). According to the
      testimony from the Assistant District Attorney (“ADA”) at the
      hearing on the [P]ost-sentence [M]otion[, nunc pro tunc], she had
      initially offered a plea to the defense of a county prison sentence

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     with a lifetime registration requirement. In response, defense
     counsel requested a plea resulting in a 25-year registration
     requirement, and an agreement for work release. The ADA
     refused this counter-offer, although [she] ultimately was
     agreeable to [Bower] pleading guilty to the charges only requiring
     25-year (as opposed to lifetime) registration, thus implicitly
     accepting at least that part of the counter-offer.

                                  ***

           What [Bower] fails to address, [i.e., concerning his above-
     mentioned claim of an Equal Protection Clause violation in
     SORNA], is the fact that he was not charged with Statutory Sexual
     Assault, but was instead charged with two different subsections of
     Aggravated Indecent Assault, both of which mandate lifetime
     registration under SORNA. It was only as a result of his negotiated
     guilty plea that the two more serious felony charges were
     dismissed, resulting in not only a less significant sentencing
     guideline range, but also a greatly reduced period of registration.
     While [Bower] attempts to argue a constitutional violation of his
     rights, he does so regarding an offense with which he was not
     charged, and which is irrelevant to his specific circumstances.
     Furthermore, as applied to him, a 25-year statutorily required
     registration requirement is not unconstitutional. While there
     appears to be an inconsistency between the registration
     requirements for statutory sexual assault and indecent assault,
     when reviewing statutes, it is axiomatic that “[e]very statute shall
     be construed, if possible, to give effect to all its provisions.” 1
     Pa.C.S. § 1921(a). Furthermore, it is also accepted that “the
     General Assembly does not intend to violate the Constitution of
     the United States or of this Commonwealth.” 1 Pa.C.S. § 1922(2).
     Without evidence of contrary legislative intent, it is therefore
     presumed that the disparity between the registration
     requirements for these two statutes was done with legislative
     intent and is constitutional.

            While the question of the statute’s constitutionality[,] vis-a-
     vis the disparity between the registration requirements for
     statutory sexual assault and indecent assault[,] may be applicable
     and capable of being addressed in a case in which a defendant is
     charged with both statutory sexual assault and indecent assault,
     this is not the circumstance in the instant case. As “a court cannot
     invalidate a statute simply because it might be unconstitutionally
     applied,” [Bower’s] argument must fail. Golden Triangle News,

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     Inc. v. Corbett, 689 A.2d 974, 985 [(Pa. Cmwlth. 1997)
     (emphasis in original).]

Trial Court Opinion and Order, 10/27/17, at 3-5 (emphasis omitted).       We

agree with the trial court’s sound rationale and reach the same conclusion.

Bower is bound by his plea agreement, and his constitutional challenge is not

properly before us. See Farabaugh, supra.

     Accordingly, the trial court did not err in denying Bower’s Post-sentence

Motion, nunc pro tunc, and we affirm his judgment of sentence.

     Judgment of sentence affirmed; Commonwealth’s nunc pro tunc

Objection denied.

     Judge Olson concurs in the result.

     Judge Kunselman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/23/2018




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