J-S22026-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CONNOR DAVID POWELL :
:
Appellant : No. 1722 MDA 2018
Appeal from the Judgment of Sentence Entered September 4, 2018
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0003140-2017
BEFORE: SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.
MEMORANDUM BY DUBOW, J.: FILED: JULY 25, 2019
Appellant, Connor David Powell, appeals from the Judgment of Sentence
entered in the Cumberland County Court of Common Pleas, after he pleaded
guilty to one count each of Firearms Not to be Carried Without a License,
Simple Assault, and Attempted Indecent Assault.1 Appellant claims that his
25-year registration requirement under the Sex Offender Registration and
Notification Act (“SORNA”)2 is illegal, averring that the trial court could not
order registration in excess of the maximum possible incarceration period of
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118 Pa.C.S. §§ 6106(a)(1); 2701(a)(1); and 3126(a)(2), respectively. The
Commonwealth graded the Attempted Indecent Assault charge to which
Appellant pleaded guilty as a first-degree misdemeanor.
2 42 Pa.C.S. § 9799.10 et seq.
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* Retired Senior Judge assigned to the Superior Court.
J-S22026-19
five years.3 After careful review, we reject Appellant’s claim and affirm his
Judgment of Sentence.
A detailed recitation of the facts and procedural history is not necessary
to our disposition. In sum, following his guilty plea to the above charges, on
September 4, 2018, the trial court sentenced Appellant to a term of six to 23
months’ incarceration followed by 36 months’ probation. The court also
notified Appellant orally and in writing of his 25-year reporting and registration
requirement as a SORNA Tier II sexual offender.
On September 10, 2018, Appellant filed a Motion to Modify Sentence,
seeking to vacate the portion of his sentence imposing the SORNA reporting
and registration requirements. Appellant argued that the reporting and
registration requirements pursuant to SORNA are unconstitutional
punishments under Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017),
and the Sixth and Fourteenth Amendments to the U.S. Constitution. See
Motion to Modify Sentence, 9/10/18, at 1, 4 (unpaginated). Appellant also
argued that this portion of his sentence is illegal because SORNA reporting
and registration is not included in the list of sentencing alternatives offered to
a sentencing court when determining a defendant’s sentence, and the 25-year
registration term exceeds the maximum permissible sentence for a defendant
convicted of Attempted Indecent Assault, graded as a first-degree
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3 See 18 Pa.C.S. § 1104(1) (providing for a maximum sentence of five years
for a conviction for a misdemeanor of the first degree).
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misdemeanor. Id. at 2-3 (unpaginated) (citing 42 Pa.C.S. § 9721; 18 Pa.C.S.
§ 1104(1)).
The Commonwealth filed a Response to Appellant’s Motion to Modify
Sentence on September 12, 2018. The trial court denied Appellant’s Motion
the next day.
This timely appeal followed. Both Appellant and the trial court complied
with Pa.R.A.P 1925.
Appellant raises the following three issues on appeal:
1. Is [Appellant’s] Sentence of 25 years of punishment pursuant
to SORNA illegal since SORNA is not a sentencing alternative
authorized by Section 9721 of the Judicial Code, and the trial
court therefore lacked authority to impose such a sentence?
2. Is [Appellant’s] Sentence of 25 years of punishment pursuant
to SORNA illegal since the statutory maximum for a
misdemeanor of the first degree as codified in Section 1104 of
the Criminal Code is five years?
3. Is [Appellant’s] Sentence of 25 years of punishment pursuant
to SORNA a violation of both the Six and Fourteenth
Amendments to the United States Constitution as the penalty
imposed was increased beyond the prescribed statutory
maximum based upon the General Assembly’s factual
determination that Appellant “pose[s] a high risk of committing
additional sexual offenses,” 42 Pa.C.S. § 9799.11(a)(4), a fact
that was not submitted to a jury nor proven beyond a
reasonable doubt as required by Apprendi v. New Jersey,
530 U.S. 466 (2000)?
Appellant’s Brief at 6 (some capitalization omitted).
As Appellant’s issues are interrelated, we address them together. These
issues present pure questions of law; therefore, this Court’s standard of review
is de novo, and our scope of review is plenary. Muniz, 164 A.3d at 1195.
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In his first issue, Appellant claims that his sentence is illegal because
the sentencing court lacked authority to impose the SORNA registration and
reporting requirements because those requirements are not included as
sentencing alternatives in the Sentencing Code, 42 Pa.C.S. § 9721.
Appellant’s Brief at 10-11. Next, Appellant claims that his sentence is illegal
because it exceeds the statutory maximum sentence of five years for a first-
degree misdemeanor. Id. at 12-14. Last, citing Apprendi, Appellant avers
that his sentence is illegal because “the penalty imposed was increased
beyond the statutory maximum based upon a fact that was not found by a
jury beyond a reasonable doubt.” Appellant’s Brief at 15.
This Court recently addressed claims identical to those Appellant raised
here, and found them meritless. With respect to Appellant’s first two claims,
in Commonwealth v. Martin, 205 A.3d 1247 (Pa. Super. 2019), this Court
held that SORNA’s reporting and registration requirements were not illegal
because the period of registration under SORNA is separate and apart from
Appellant’s incarceration, and not constrained by Chapter 11 of the Crimes
Code. Martin, 205 A.3d at 1250-52 (citing Commonwealth v. Strafford,
194 A.3d 168 (Pa. Super. 2018) (holding SORNA’s registration requirements
are not governed by the statutory maximum sentences set forth in Chapter
11 of the Crimes Code, and that a lifetime registration requirement authorized
by SORNA does not constitute an illegal sentence); Commonwealth v.
Bricker, 198 A.3d 371 (Pa. Super. 2018) (same)).
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With respect to Appellant’s final claim, the Martin Court was
unpersuaded by that defendant’s reliance on Apprendi. It distinguished
Apprendi, noting that, unlike the defendant in Apprendi, because Martin
entered a guilty plea and the sentencing court advised Martin of the resulting
registration and reporting requirements, the sentencing court in Martin did
not make a factual finding that increased the defendant’s sentence. Martin,
205 A.3d at 1252.
Martin is dispositive here and binding authority. We, thus, conclude
that Appellant’s 25-year registration period authorized by SORNA does not
constitute an illegal sentence. Accordingly, Appellant is not entitled to relief.
Judgment of Sentence affirmed.
Judge Shogan joins the memorandum.
Judge Pellegrini concurs in result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2019
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Com. v. Powell, C.
Combined Opinion