Com. v. Okey, P. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PATRICK OKEY
Appellant No. 1157 WDA 2015
Appeal from the Judgment of Sentence July 16, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000601-2015
BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED JULY 31, 2017
Patrick Okey appeals from his judgment of sentence, entered in the
Court of Common Pleas of Erie County, following his conviction for three
counts of failing to register with the Pennsylvania State Police under our
Commonwealth’s version of Megan’s Law/Sexual Offender Registration and
Notification Act.1 Okey’s counsel seeks to withdraw pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). Because we have identified one non-frivolous issue
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*
Former Justice specially assigned to the Superior Court.
1
Megan’s Law previously provided for the registration of sexual offenders
and was codified at 42 Pa.C.S.A. § 9791 et seq. Megan’s Law was replaced
with the Sexual Offender Registration and Notification Act (“SORNA”),
effective December 20, 2012. See 42 Pa.C.S.A. § 9799.10-9799.41. Okey
is now subject to registration under SORNA, even though Megan’s Law was
in effect at the time of his underlying conviction.
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which entitles Okey to sentencing relief, we deny counsel’s petition to
withdraw, affirm Okey’s convictions, vacate his judgment of sentence, and
remand for resentencing.
Okey was required to register as a Tier 1 sex offender under Megan’s
Law following his conviction in 2009 for attempting to lure a child into a
motor vehicle.2 Prior to his release from custody3 at the State Correction
Institute in Albion, Pennsylvania (“SCI Albion”), on January 14, 2015 Okey
meet with Margaret Lucas, an employee in SCI Albion’s records department.
Lucas testified that she met with Okey to review the information necessary
for him to register as a sex offender. Although Okey understood the
registration requirements, he refused to sign any verification relating to the
information the State had about him, or to be photographed or
fingerprinted, due to his believe that his underlying conviction was in error.
Under SORNA, a registrant must provide authorities with the address at
which he will reside upon release. Although Okey did provide an address, he
told Lucas the address was not the one at which he would live, and refused
to provide Lucas with that address.
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2
18 Pa.C.S.A. § 2910(a).
3
Okey has a prior conviction for failure to register under Megan’s
Law/SORNA, also stemming from his underlying conviction for attempted
luring. The instant offenses occurred as he was being released from custody
on that conviction.
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On January 27, 2015, Corporal Mark Weindorf and Trooper Christian
Miller of the Pennsylvania State Police met with Okey at SCI Albion in an
attempt to have Okey complete his registration. Corporal Weindorf testified
that Okey’s previous conviction required Okey to register under SORNA.
Corporal Weindorf stated that Okey had been provided with four
opportunities to register, and on each occasion, Okey refused to comply in
any way. Because of his refusal to register, Okey was charged and arrested.
Okey represented himself at trial after waiving his right to counsel.
Okey’s argument was that the underling conviction for luring a child into a
motor vehicle was baseless and made in error, therefore, he is not subject to
SORNA’s registration requirements. On July 15, 2015, Okey filed a motion
in limine, essentially seeking to relitigate his underlying conviction. The
motion was denied that same day. On July 16, 2015, a jury convicted Okey
of knowingly failing to register as a sex offender with the Pennsylvania State
Police,4 knowingly failing to verify his address or be photographed,5 and
knowingly failing to provide an accurate address.6 On August 27, 2015,
Okey was sentenced to 60 to 120 months’ incarceration pursuant to the
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4
18 Pa.C.S. § 4915.1(a)(1)
5
18 Pa.C.S. § 4915.1(a)(2)
6
18 Pa.C.S. § 4915.1(a)(3)
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mandatory minimum set forth in 42 Pa.C.S.A. § 9718(2)(i). This appeal
followed.7
Okey filed a Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal on December 13, 2016. The trial court filed its Rule 1925(a)
opinion on January 5, 2017. On April 21, 2017, Okey’s counsel filed a
statement of intent to file an Anders brief pursuant to Rule 1925(c)(4).
Counsel has filed a petition to withdraw pursuant to the requirements
set forth in Anders and Santiago. Our Supreme Court in Santiago held:
[I]n the Anders brief that accompanies court[-]appointed
counsel’s petition to withdraw, counsel must: (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 the appeal is frivolous.
Santiago, 978 A.2d at 361. Once counsel has satisfied the procedural
requirements of Santiago, this Court engages in an independent evaluation
of the record to determine if the claims on appeal are wholly frivolous.
Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005).
Counsel’s brief satisfies the necessary procedural requirements. Her
brief provides “a summary of the procedural history and facts, with citations
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7
Okey originally filed his appeal prior to sentencing. However, the appeal is
deemed timely filed pursuant to Pa.R.A.P. 905(a)(5), which provides that “a
notice of appeal filed after the announcement of a determination but before
the entry of an applicable order shall be treated as filed after such entry and
on the day thereof.”
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to the record.” Santiago, 978 A.2d at 361; Brief of Appellant, at 5-6. She
further provides a review of the record, and raises the issues she believes
arguably supports an appeal. Santiago, 978 A.2d at 360; Brief of
Appellant, at 8-10. Counsel’s brief also states her conclusion that the claims
are frivolous, and she provides her reasoning for this conclusion. Santiago,
978 A.2d at 360; Brief of Appellant, at 11-13. Lastly, counsel notified Okey
of her request to withdraw and provided him with a copy of the brief and a
letter explaining his right to retain new counsel or proceed pro se as to any
issues he believes might have merit. Counsel having satisfied the
procedural requirements for withdrawal, we must now examine Okey’s claim
to determine if the appeal is frivolous. Anders, 386 U.S. at 744; Rojas,
874 A.2d at 639.
Okey raises the following issues for our review:
A. Whether the trial court abused its discretion in denying
[Okey’s] [m]otion in [l]imine that sought to limit the testimony
regarding [Okey’s] prior conviction(s).
B. Whether the Commonwealth failed to present sufficient
evidence to find [Okey] guilty beyond a reasonable doubt for
[f]ailure to [register] with the [Pennsylvania State Police].
C. Whether the trial court abused its discretion in sentencing
[Okey] and whether . . . the sentence is manifestly excessive,
clearly unreasonable and inconsistent with the objectives of the
Sentencing Code.
Brief of Appellant, at 4.
Okey first claims that the trial court erred in denying his motion in
limine, in which he sought to present evidence he believed would prove that
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his underlying conviction for attempting to lure a child was in error. Our
standard of review for determining if evidence was properly excluded is as
follows:
The admissibility of evidence is a matter directed to the sound
discretion of the trial court, and an appellate court may reverse
only upon a showing that the trial court abused that discretion.
The threshold inquiry with admission of evidence is whether the
evidence is relevant. Evidence is relevant if it logically tends to
establish a material fact in the case, tends to make a fact at
issue more or less probable, or supports a reasonable inference
or presumption regarding the existence of a material fact.
Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1998) (citations and
quotation marks omitted). In short, Okey must show that the evidence he
wished to present was relevant to a matter at issue in the present case, and
that the trial court’s finding that the evidence was irrelevant was an abuse of
its discretion. Lewis v. Coffing Hoist Div., Duff-Norton Co., 528 A.2d
590, 592 (Pa. 1987).
In this case, Okey was charged with three counts of failure to comply
with registration requirements 18 Pa C.S.A. § 4915.1(a)(1-3). Section 4915
provides, in relevant part:
(a) Offense defined. — An individual who is subject to
registration under 42 Pa.C.S. § 9795.1(a) or (a.1) (relating to
registration) or an individual who is subject to registration under
42 Pa.C.S. § 9795.1(b) or who was subject to registration under
former 42 Pa.C.S § 9793 (relating to registration of certain
offenders for ten years) commits an offense if he knowingly fails
to:
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(1) register with the Pennsylvania State Police as required
under 42 Pa.C.S. § 9795.2 (relating to registration
procedures and applicability);
(2) verify his residence or be photographed as required
under 42 Pa.C.S. § 9796 (relating to verification of
residence); or
(3) provide accurate information when registering under
42 Pa.C.S. § 9795.2 or verifying a residence under 42
Pa.C.S. § 9796.
18 Pa.C.S. § 4915(a)(1-3) (bold in original). Section 9795.2 provides, in
relevant part:
(a) Registration.
(1) Offenders and sexually violent predators shall be
required to register with the Pennsylvania State Police
upon release from incarceration, upon parole from a State
or county correctional institution or upon the
commencement of a sentence of intermediate punishment
or probation. For purposes of registration, offenders and
sexually violent predators shall provide the Pennsylvania
State Police with all current or intended residences, all
information concerning current or intended employment
and all information concerning current or intended
enrollment as a student.
42 Pa.C.S. § 9795.2(a)(1).
The record clearly shows that Okey was previously convicted of a
crime that requires him to register as a sex offender with the Pennsylvania
State Police.8 Trial Court Opinion, 1/5/17, at 2; Brief of Appellant, at 5. The
facts of Okey’s previous conviction, and his attempts to relitigate them, are
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8
42 Pa. C.S.A. § 9795.1
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completely irrelevant to whether Okey failed to meet his registration
obligations under section 4915. As such, the evidence was properly
excluded. See Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008)
(holding that exclusion of out of court statements made by unrelated party
was proper when statements were irrelevant in finding whether
discriminatory intent existed). Moreover, Okey cannot use this appeal to
make a collateral attack on his 2008 conviction. Any collateral attack on an
underlying conviction must be raised in a petition pursuant to the Post
Conviction Relief Act,9 which provides the sole means for obtaining collateral
review of a judgment of sentence. Commonwealth v. Infante, 63 A.3d
358, 365 (Pa. Super. 2013). Accordingly, we find that the trial court did not
abuse its discretion in denying Okey’s motion in limine and Okey’s claim to
be without merit.
Okey next asserts that there was insufficient evidence to support his
conviction. Our standard of review upon a challenge to the sufficiency of the
evidence is well settled:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying [the above] test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
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9
42 Pa.C.S.A. §§ 9541-9546.
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preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001),
quoting Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super.
2000) (citations and quotation marks omitted).
In this case, the jury convicted Okey of three section 4915.1
violations: (1) knowingly failing to register as a sex offender with the
Pennsylvania State Police; (2) knowingly failing to verify his address or be
photographed; and (3) knowingly failing to provide an accurate address. 18
Pa.C.S.A. § 4915.1(a)(1-3). In order to convict Okey of these crimes, the
jury must have determined that Okey was subject to registration, and failed
to comply with section 4915.1(a)(1-3). Additionally, the jury must have
determined that Okey acted knowingly. “Knowingly” is defined in our Crimes
Code as follows:
(2) A person acts knowingly with respect to a material element
of an offense when:
(i) if the element involves the nature of his conduct or the
attendant circumstances, he is aware that his conduct is of
that nature or that such circumstances exist.
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18 Pa.C.S. § 302(b)(2)(i). Our Court has interpreted this provision to mean
that “a person ‘knows’ . . . if he is ‘aware’ of [a] fact.” Commonwealth v.
Robinson, 128 A.3d 261, 265 (Pa. Super. 2015), citing 18 Pa.C.S.A. §
302(b)(2)(i).
Upon review of the record and viewing all evidence in a light most
favorable to the Commonwealth, Distefano, supra, we find that there was
sufficient evidence to support a finding that Okey knowingly failed to comply
with his SORNA requirements. Testimony from Corporal Weindorf indicated
that Okey had been convicted of a crime that required him to comply with
SORNA. Lucas and Corporal Weindorf both testified that Okey was aware of
his SORNA requirements, yet refused to comply with any of them. The only
action Okey took to comply with his obligations was providing Lucas with an
inaccurate address. Accordingly, this claim is meritless.
Finally, Okey argues that the trial court abused its discretion in
imposing his sentence. However, this claim is moot, as our own
independent review of the record reveals that Okey was illegally sentenced
under section 9718.4.10
At the time of Okey’s sentencing, our decision in Commonwealth v.
Pennybaker, 121 A.3d 530, 534 (Pa. Super. 2015), held that application of
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10
While neither the trial court nor the parties have raised this issue, “[a]n
illegal sentence can never be waived and may be reviewed sue sponte by
this Court.” Commonwealth v. Archer, 722 A.2d 203, 209 (Pa. Super.
1998).
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mandatory minimum statutes was constitutional when sentencing for failure
to register under SORNA. However, on allowance of appeal, the Supreme
Court of Pennsylvania vacated and remanded to the trial court for
resentencing without application of the mandatory minimum, in light of its
recent decisions in Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016),
and Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015). See
Commonwealth v. Pennybaker, 145 A.3d 720, (Pa. 2016) (per curiam).
Our recent decision in Commonwealth v. Blakney, 152 A.3d 1053 (Pa.
Super. 2016), held all of section 9718.4 unconstitutional under Alleyne v.
United States, 133 S. Ct. 2151 (2013),11 as violating the right to trial by
jury. Consequently, Okey’s mandatory minimum sentence under section
9718.4 must be vacated. Accordingly, we deny counsel’s petition to
withdraw, and remand for resentencing, without consideration of the
mandatory minimum set forth in section 9718.4. Because this issue involves
a question of law and our review of the record is complete, we decline to
remand for the preparation of an advocate’s brief. See Commonwealth v.
Mitchell, 986 A.2d 1241, 1244 (Pa. Super. 2009) (remanding Anders
appeal for resentencing when court imposed illegal sentence, without first
requiring advocate’s brief).
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11
In Alleyne, the Supreme Court held that “facts that increase mandatory
minimum sentences must be submitted to the jury” and found beyond a
reasonable doubt. Alleyne, 133 S. Ct. at 2163.
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In conclusion, we find Okey’s claims of abuse of discretion by the trial
court and insufficiency of the evidence to be meritless. Because of our
recent decision in Blakney, we find his sentence under section 9718.4 to be
illegal, and remand the case for resentencing. Consequently, counsel’s
Anders motion is denied.
Convictions affirmed. Judgment of sentence vacated. Motion to
withdraw denied. Case remanded for resentencing without consideration of
the mandatory minimum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2017
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