Com. v. Prieto, J. , 206 A.3d 529 ( 2019 )

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2019 Pa. Super. 79
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUAN BERMUDES PRIETO :
:
Appellant : No. 512 MDA 2018
Appeal from the Judgment of Sentence January 8, 2018
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0001356-2017
BEFORE: SHOGAN, J., OTT, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED MARCH 18, 2019
Appellant, Juan Bermudes Prieto, appeals from the judgment of
sentence entered in the Court of Common Pleas of Luzerne County following
his plea of nolo contendere to three counts of possession of child pornography,
18 Pa.C.S.A. § 6312(d). Additionally, Appellant’s counsel has filed a petition
seeking to withdraw his representation, as well as a brief pursuant to Anders
v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), and Commonwealth v.
Santiago, 602 Pa. 159, 978 A.2d 349 (2009) (hereinafter “Anders brief”).
After a careful review, we grant counsel’s petition to withdraw and affirm
Appellant’s judgment of sentence.
The relevant facts and procedural history are as follows: On February
18, 2017, following an incident at Luigi’s Pizza in Mountain Top, Pennsylvania,
the police discovered Appellant in possession of “[t]hree digital images or
videos of a child or children under the age of 18 years old engaging in sexual
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* Former Justice specially assigned to the Superior Court.
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activities or a simulation of sexual activities.” N.T., 10/11/17, at 5.
Accordingly, Appellant was arrested, and the Commonwealth filed a twenty-
two count criminal complaint against Appellant.
On October 11, 2017, Appellant, who was represented by counsel,
proceeded to a hearing before the Honorable David W. Lupas, and he entered
a negotiated plea of nolo contendere to the charges indicated supra. With
regard to the plea agreement, the Commonwealth informed the trial court:
Unless otherwise stated, the parties have not made any
agreement as to sentencing. [Appellant] must pay costs and the
Commonwealth moves to withdraw the remaining charges.
The Commonwealth agrees to a sentence of two to four
years. [Appellant] waives the 90 days for the Sexual Offender’s
Assessment Board [(“SOAB”)] evaluation. [Appellant] must
register pursuant to the Adam Walsh Act [(SORNA)1]. [Appellant]
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1 The Sex Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.A.
§§ 9799.10-9799.41, was enacted on December 20, 2011, and became
effective on December 20, 2012. Effective February 21, 2018, the legislature
enacted Act 10, which added a new subchapter to SORNA, “Continued
Registration of Sexual Offenders.” 42 Pa.C.S.A. §§ 9799.51-9799.75. The
stated purpose of Act 10 was, inter alia, to address Commonwealth v.
Muniz, 640 Pa. 699, 164 A.3d 1189 (2017). Act 29 of 2018 reenacted Act
10, effective June 12, 2018.
In the case sub judice, Appellant committed his crimes, entered his plea,
and was sentenced prior to the 2018 amendments. He has presented no
claims regarding the possible retroactive application of the legislature’s new
amendments, and there is no indication the Pennsylvania State Police have
attempted to classify Appellant under the new legislation. Thus, as the trial
court properly discerned in the first instance, the amended legislation is not
“pertinent to this matter[.]” Trial Court Opinion, filed 10/24/18, at 2 n.1. See
Commonwealth v. Fernandez, 195 A.3d 299 (Pa.Super. 2018) (en banc)
(holding possible retroactive application of legislature’s new amendments to
SORNA was not properly before this Court where there was no indication the
appellants were classified thereunder).
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is to have no contact with the following parties: victims, minors,
schools, school zones, school activities, public parks, pools or
playgrounds. And it should be noted that as indicated on the plea
[agreement] [Appellant] is not a United States Citizen.
Id. at 3 (footnote added).
Defense counsel informed the trial court that Appellant is a citizen of
Mexico2 and “there is an ICE[3] detainer on [Appellant]. [T]he agreed-upon
sentence would be within the standard range of the guidelines.” Id. (footnote
added). The trial court accepted the plea, informed Appellant that he would
face immigration consequences, including deportation, in connection with his
plea, and scheduled sentencing for a separate date. Id. at 3-4. The trial
court ordered a presentence investigation report (“PSI”) and directed
Appellant to undergo a SOAB evaluation. Id. at 8.
On January 8, 2018, Appellant, represented by counsel, appeared for a
sentencing hearing at which the trial court indicated “[Appellant] was
evaluated by [SOAB]. The court is in receipt of their report, which indicates
he is not deemed a sexually violent predator. And there was a PSI completed.”
N.T., 1/8/18, at 2. The trial court then imposed sentence in accordance with
the parties’ plea agreement, thus sentencing Appellant to an aggregate of two
years to four years in prison. Id. at 4-5. The trial court gave Appellant credit
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2 The trial court provided Appellant with an interpreter for all court
proceedings.
3“ICE” refers to the United States Department of Immigration and Customs
Enforcement.
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for time served and directed Appellant to register pursuant to SORNA for
fifteen years. Id. at 5. The Commonwealth advised Appellant that his
conviction was a Tier I offense under SORNA and provided Appellant with a
detailed description of his SORNA reporting requirements. Id. at 5-8.
On January 11, 2018, Appellant filed a timely, counseled post-sentence
motion, which the trial court denied. This timely, counseled appeal followed,
and all Pa.R.A.P. 1925 requirements have been met. On December 10, 2018,
counsel filed in this Court a petition seeking to withdraw his representation,
as well as an Anders brief. Appellant filed no further submissions either pro
se or through privately-retained counsel.
Prior to addressing any issue raised on appeal, we must first resolve
counsel’s petition to withdraw. Commonwealth v. Goodwin, 928 A.2d 287,
290 (Pa.Super. 2007) (en banc). There are procedural and briefing
requirements imposed upon an attorney who seeks to withdraw on appeal
pursuant to which counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the [appellant]; and 3) advise the [appellant] that
he or she has the right to retain private counsel or raise additional
arguments that the [appellant] deems worthy of the court’s
attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en
banc) (citation omitted). In addition, our Supreme Court in Santiago stated
that an Anders brief must:
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(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Santiago, 602 Pa. at 178-79, 978 A.2d at 361. Counsel also must provide
the appellant with a copy of the Anders brief, together with a letter that
advises the appellant of his or her right to “(1) retain new counsel to pursue
the appeal; (2) proceed pro se on appeal; or (3) raise any points that the
appellant deems worthy of the court’s attention in addition to the points raised
by counsel in the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa.Super. 2007) (citation omitted). Substantial compliance with these
requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290
(Pa.Super. 2007).
Herein, counsel contemporaneously filed his petition to withdraw as
counsel and Anders brief. In his petition, counsel states that after a thorough
and conscientious examination of the record he has determined that an appeal
herein is wholly frivolous. Additionally, in accordance with Nischan, counsel
has mailed Appellant a copy of the Anders brief and a letter informing him
that: (1) he has the right to retain new counsel; (2) he may proceed further
with his case pro se; and (3) he may raise any points that he deems worthy
of the this Court’s attention. Counsel attached his conforming correspondence
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to his petition to withdraw. See Commonwealth v. Millisock, 873 A.2d 748
(Pa.Super. 2005).
In the Anders brief, counsel provides a summary of the facts and
procedural history of the case, refers to evidence of record that might arguably
support the issues raised on appeal, provides citations to relevant case law,
and states his reasoning and conclusion that the appeal is wholly frivolous.
Accordingly, counsel has substantially complied with all of the technical
requirements of Anders and Santiago. Therefore, we proceed to examine
the issues counsel identified in the Anders brief and then conduct “a full
examination of all the proceedings, to decide whether the case is wholly
frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa.Super.
2018) (en banc) (quotation omitted).
In the Anders brief, counsel raises the following issues (verbatim):
I. Whether SORNA is unconstitutional.
II. Whether SORNA violates the Separation of Powers clause.
III. Do the requirements under SORNA violate the Eighth
Amendment[?]
IV. Do the registration requirements under SORNA constitute
an illegal sentence[?]
Anders Brief at 1.
At the outset, we note that “in terms of its effect upon a case, a plea of
nolo contendere is treated the same as a guilty plea.” Commonwealth v.
V.G., 9 A.3d 222, 226 (Pa.Super. 2010) (citation omitted). Generally, “upon
entry of a guilty plea, a defendant waives all claims and defenses other than
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those sounding in the jurisdiction of the court, the validity of the plea, and
what has been termed the ‘legality’ of the sentence imposed[.]”
Commonwealth v. Eisenberg, 626 Pa. 512, 98 A.3d 1268, 1275 (2014)
(citation omitted).
In the case sub judice, Appellant’s claims present a challenge to the
legality of his sentence. See Commonwealth v. Dixon, 161 A.3d 949, 951
(Pa.Super. 2017) (“If no statutory authorization exists for a particular
sentence, that sentence is illegal and subject to correction.”) (citation
omitted)). “Issues relating to the legality of a sentence are questions of law.
Our standard of review over such questions is de novo and our scope of review
is plenary.” Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa.Super.
2014) (brackets and ellipses omitted).
In his first issue, Appellant contends SORNA is unconstitutional as
applied to him pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348 (2000), and Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151
(2013). Specifically, he asserts that, in determining his sexually violent
predator (“SVP”) status under SORNA, necessary fact-based determinations
were made by the trial judge rather than a jury without the necessity of
requiring proof beyond a reasonable doubt.
On July 17, 2017, the Pennsylvania Supreme Court held in
Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017), that
SORNA’s registration provisions constitute punishment, and, therefore, the
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retroactive application of those provisions violates the ex post facto clauses of
the federal and Pennsylvania constitutions.4 Thereafter, on October 31, 2017,
a panel of this Court, in Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super.
2017), appeal granted, 190 A.3d 581 (Pa. 2018), recognized that “Muniz was
a sea change in the longstanding law of this Commonwealth as it determined
that the registration requirements under SORNA are not civil in nature but a
criminal punishment.” Id. at 1215. As such, the panel concluded the
statutory mechanism for designating a defendant as a SVP set forth in 42
Pa.C.S.A. § 9799.24(e)(3), which permits a trial court to make the
determination based upon clear and convincing evidence, was “constitutionally
flawed” pursuant to the United States Supreme Court’s decisions in Alleyne,
supra, and Apprendi, supra. Accordingly, the Butler panel held: “[T]rial
courts cannot designate convicted defendants SVPs or hold SVP hearings until
our General Assembly enacts a constitutional designation mechanism.”
Butler, 173 A.3d at 1218. Therefore, the Butler panel vacated the order
designating the defendant as an SVP, and remanded the case to the trial court
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4 We note that Appellant’s sentence is not illegal in light of Muniz, for therein
our Supreme Court held that the retroactive application of SORNA’s
registration provisions to defendants whose crimes occurred prior to SORNA’s
effective date (December 20, 2012) violated the ex post facto clause of the
Pennsylvania Constitution. Here, Appellant’s crimes occurred in 2017, and
there was otherwise no retroactive application of SORNA. See
Commonwealth v. Luciani, ___ A.3d ___, 2018 WL 6729854 (Pa.Super.
filed 12/24/18).
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to determine his proper registration period pursuant to 42 Pa.C.S.A. §§
9799.14 and 9799.15. See id.
In the case sub judice, in rejecting Appellant’s first claim, the trial court
indicated the following:
Here, the SOAB’s assessment of [Appellant] did not lead it
to conclude that [Appellant] should be deemed a [SVP]. [T]hus,
[the] court did not conduct a hearing pursuant to Section
9799.24(e)(3), [Appellant] was not deemed a [SVP], and
[Appellant] did not receive an enhanced sentence based on an
SVP designation. [Rather,] pursuant to Section 9799.14(b),
[Appellant] was classified a Tier I offender related to his
underlying conviction for violating 18 Pa.C.S.A. § 6312(d). As
such, he was subject to a 15 year registration period pursuant to
Section 9799.15(a)(1). [Accordingly,] [Appellant] did not receive
an enhanced sentence based on an SVP designation, but was
instead properly subject to a tier-based registration period.
Trial Court Opinion, filed 10/24/18, at 7 (bold added).
We agree with the trial court’s sound reasoning, conclude Appellant was
properly sentenced in accordance with the applicable SORNA tier-based
registration period, and find no merit to Appellant’s first claim. See
Commonwealth v. Golson, 189 A.3d 994, 1003 (Pa.Super. 2018) (directing
“trial courts to apply only the applicable tier-based registration period, as
those periods apply based on the conviction itself, and not due to any
additional fact not found, under SORNA’s procedures, by the fact-finder”).
In his second issue, Appellant contends SORNA violates the separation
of powers doctrine under the Pennsylvania Constitution since it grants
sentencing authority and administration exclusively to an administrative
agency rather than the courts.
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This Court held that, under Megan’s Law II, “the separation of powers
doctrine remain[ed] intact because the [SOAB] dictate[d] no specific
conclusion to the judiciary.” Commonwealth v. Howe, 842 A.2d 436, 447
(Pa.Super. 2004) (citing Commonwealth v. Kopicz, 840 A.2d 342
(Pa.Super. 2003) (holding Megan’s Law II did not violate the separation of
powers doctrine because the SOAB did not perform an adjudicative function)).
In the case sub judice, Appellant has not cited any legal authority to suggest
that SORNA’s requirements are different from its predecessor in this regard,
and we find there is no merit to his claim.
Appellant intertwines his third and fourth issues. Specifically, Appellant
contends that the requirement he register for a period of fifteen years as a
Tier I offender under SORNA is both an illegal sentence and “cruel and
unusual” punishment since the statutory maximum penalty for the crime to
which he pled nolo contendere is only seven years.5 We find no relief is due.
In Commonwealth v. Strafford, 194 A.3d 168 (Pa.Super. 2018), a
panel of this Court held that our legislature could-and did-create multiple
types of punishment for a given crime. Thus, we held the legislature may
punish sex-offenders by both a statutory-maximum incarceration period and
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5 18 Pa.C.S.A. § 6312(d.1)((2)(i) provides that a conviction under Section
6312(d) is a felony of the third degree. The Crimes Code provides that a
person who has been convicted of a felony of the third degree may be
sentenced to imprisonment, which shall be fixed by the court at no more than
seven years. 18 Pa.C.S.A. § 1103(3).
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a limitless SORNA-registration period thereafter. See id. We held those two
punishments are separate and distinct. See id. Accordingly, sex-offenders’
SORNA registration periods are unrelated to whatever maximum-incarceration
period Chapter 11 of the Crimes Code establishes for their crimes.
Specifically, we recognized the following:
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.[A.] § 9799.14 (“Sexual offenses and tier system”); 42
Pa.C.S.[A.] § 9799.15 (“Period of registration”). SORNA’s
registration provisions are not constrained by [18 Pa.C.S.A. §]
1103. Rather, SORNA’s registration requirements are an
authorized, punitive measure separate and apart from [the]
[a]ppellant’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.
Stafford, 194 A.3d at 173. See Commonwealth v. Bricker, ___ A.3d ___,
2018 WL 5093265 (Pa.Super. filed 10/19/18).
Accordingly, we conclude that Appellant’s fifteen-year registration
requirement authorized by SORNA constitutes neither an illegal sentence nor
cruel and unusual punishment. Accordingly, Appellant is not entitled to relief.
After examining the issues contained in the Anders brief, we concur
with counsel’s assessment that the appeal is wholly frivolous. “Furthermore,
after conducting a full examination of all the proceedings as required pursuant
to Anders, we discern no non-frivolous issues to be raised on appeal.”
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Yorgey, 188 A.3d at 1195. Thus, we grant counsel’s petition to withdraw and
affirm Appellant’s judgment of sentence.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/18/2019
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