Com. v. Whitehill, D. ( 2019 )

J-S12031-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DYLAN TAYLOR WHITEHILL, :
:
Appellant : No. 774 MDA 2018
Appeal from the Judgment of Sentence April 23, 2018
in the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0001524-2017
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: APRIL 30, 2019
Dylan Taylor Whitehill (“Whitehill”) appeals from the judgment of
sentence imposed, and his lifetime registration requirement pursuant to the
Sex Offender Registration and Notification Act (“SORNA”),1 following his open
guilty plea to aggravated indecent assault, and his negotiated guilty plea to
indecent assault.2 We affirm in part and vacate in part.
On January 26, 2017, M.H. (“the victim”) disclosed to the Pennsylvania
State Police that he had been sexually assaulted by Whitehill sometime
between January 2006 and December 2008. The victim was between 5 and
7 years old at the time of the assault. Whitehill was between 15 and 17 years
old at the time of the assault, and 26 years old at the time of the victim’s
disclosure. Whitehill was charged with one count of involuntary deviate sexual
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1 See 42 Pa.C.S.A. §§ 9799.10-9799.41.
2 18 Pa.C.S.A. §§ 3125(a)(2), 3126(a)(7).
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intercourse with a child, and two counts each of aggravated indecent assault
and indecent assault.
On April 23, 2018, Whitehill entered an open guilty plea to the charge
of aggravated indecent assault, and a negotiated guilty plea to the charge of
indecent assault. On the charge of aggravated indecent assault, the trial court
sentenced Whitehill to 11½ to 23½ months in prison. On the charge of
indecent assault, Whitehill was sentenced, pursuant to the plea agreement, to
a consecutive term of five years of probation. Additionally, Whitehill was
ordered to comply with SORNA’s registration requirements. Whitehill filed a
timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of matters complained of on appeal.
On appeal, Whitehill raises the following issues for our review:
I. Was the sentence illegal because the imposition of mandatory
lifetime sex offender registration violate[s] due process when
imposed on individuals solely for their childhood conduct?
II. Was the sentence illegal because the imposition of mandatory
lifetime sex offender registration constitutes cruel and unusual
punishment when imposed for offenses committed by a child?
Brief for Appellant at 4.
Initially, we observe that “[w]hen the legality of a sentence is at issue
on appeal, our standard of review is de novo and our scope of review is
plenary.” Commonwealth v. Mendozajr, 71 A.3d 1023, 1027 (Pa. Super.
2013) (citation and quotation marks omitted). “An illegal sentence must be
vacated.” Commonwealth v. Mears, 972 A.2d 1210, 1211 (Pa. Super.
2009) (citation omitted).
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Prior to addressing the issues raised by Whitehill, we sua sponte address
whether our Supreme Court’s holding in Commonwealth v. Muniz, 164 A.3d
1189 (Pa. 2017), renders Whitehill’s sentence illegal, as a violation of
Pennsylvania Constitution’s ex post facto clause. See Commonwealth v.
Butler, 173 A.3d 1212, 1214 (Pa. Super. 2017) (stating that “ a challenge to
the legality of a particular sentence may be reviewed by any court on direct
appeal; it need not be preserved in the lower courts to be reviewable and may
even be raised by an appellate court sua sponte.”) (citation, quotation marks
and brackets omitted).
In Muniz, the defendant was convicted of indecent assault in 2007, at
which time Megan’s Law III was in effect. See Commonwealth v. Muniz,
164 A.3d 1189, 1193 (Pa. 2017). The appellant failed to appear for his
sentencing hearing, and was not apprehended and sentenced until 2014, at
which time SORNA was effective.3 Id. The trial court sentenced the defendant
and ordered him to comply with SORNA. On review, the Pennsylvania
Supreme Court stated that SORNA effectively inflicted greater punishment
than Megan’s Law III, the statute in effect at the time the defendant
committed his crimes. Id. at 1210-18. As a result, the Court held, retroactive
application of SORNA to the appellant, who had committed his crimes prior to
the enactment of SORNA, violated the ex post facto clauses of both the United
States and Pennsylvania Constitutions. Id. at 1218, 1223.
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3 Megan’s Law III was replaced by SORNA on December 20, 2012.
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Here, Whitehill committed his crimes between 2006 and 2008, prior to
the enactment of SORNA. Whitehill pled guilty to the offenses in 2018, after
SORNA became effective in 2012. Similar to the appellant in Muniz, had
Whitehill been sentenced prior to SORNA’s enactment, he would have been
subject to the less burdensome and stringent requirements of Megan’s Law
III. Because SORNA inflicts greater punishment than Megan’s Law III, and
the trial court retroactively applied SORNA to Whitehill, we conclude that
applying SORNA to Whitehill would violate the ex post facto clause of the
United States and Pennsylvania constitutions. See Muniz, supra.
Accordingly, we vacate the trial court’s judgment of sentence to the extent
that it ordered Whitehill to comply with SORNA, and we remand to the trial
court to determine Whitehill’s registration requirements, in accordance with
this Memorandum.4
Judgment of sentence affirmed in part and vacated in part. Remanded
with instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/2019
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4 In light of our disposition, we need not address Whitehill’s issues on appeal.
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