Com. v. Lemanski, B. ( 2019 )

J-A06029-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRETT ANTHONY LEMANSKI :
:
Appellant : No. 92 MDA 2018
Appeal from the Judgment of Sentence September 5, 2017
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0003113-2016
BEFORE: OTT, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED JUNE 21, 2019
Appellant Brett Anthony Lemanski appeals from the judgment of
sentence imposed after he pled guilty to corruption of minors and possession
of child pornography.1 Appellant claims that the fifteen-year registration
requirement under the Sex Offender Registration and Notification Act
(SORNA)2 constitutes an illegal sentence.3 We conclude that this Court’s
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* Retired Senior Judge assigned to the Superior Court.
118 Pa.C.S. §§ 6301(a)(1)(ii) (third-degree felony); and 6312(d) (third-
degree felony).
2 42 Pa.C.S. §§ 9799.10-9799.41 (subsequently amended Feb. 21, 2018).
3 In Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), our Supreme
Court held that the registration requirements of the former version of SORNA
were punitive. See also Commonwealth v. Butler, 173 A.3d 1212 (Pa.
Super. 2017) (stating that SORNA’s registration requirements are to be
considered part of a defendant’s sentence), appeal granted, 190 A.3d 581 (Pa.
2018).
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recent decision in Commonwealth v. Martin, 205 A.3d 1247 (Pa. Super.
2019), addresses all of Appellant’s arguments and affirm.
The relevant facts giving rise to this appeal are well known to the
parties, and we need not restate them here. Briefly, we note that on March
6, 2017, Appellant pled guilty based on criminal conduct that occurred
between July 4, 2015 and April 1, 2016. On September 5, 2017, the trial
court sentenced Appellant to one to two years’ state incarceration and a
concurrent term of two years’ probation. Appellant was also designated a Tier
I offender under SORNA for corruption of minors and was ordered to report
and register for fifteen years.
On September 15, 2017, Appellant filed a timely motion to modify his
sentence challenging his SORNA registration requirement. On December 18,
2017, the trial court denied Appellant’s motion. Appellant filed a timely notice
of appeal on January 11, 2018. Both Appellant and the trial court
subsequently complied with Pa.R.A.P. 1925.
Appellant presents the following questions for our review:
1. Is [Appellant’s] sentence of fifteen (15) years of
punishment pursuant to SORNA illegal as SORNA is not a
sentencing alternative authorized by Section 9721 of the
Judicial Code and the trial court therefore lacked
authority to impose such sentence?
2. Is [Appellant’s] sentence of fifteen (15) years of
punishment pursuant to SORNA illegal as the statutory
maximum for a felony of the third degree as codified at
Section 1103(2) of the Crimes Code is seven (7) years?
3. Is [Appellant’s] sentence of fifteen (15) years of
punishment pursuant to SORNA a violation of both the
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Sixth 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 the jury nor proven beyond a
reasonable doubt as required by Apprendi v. New
Jersey, 530 U.S. 466 (2000)?
Appellant’s Brief at 6.
In Martin, this Court recently concluded that a fifteen-year SORNA
registration requirement did not constitute an illegal sentence. Martin, 205
A.3d at 1252. Relying on our prior decisions in Commonwealth v. Strafford,
194 A.3d 168 (Pa. Super. 2018),4 and Commonwealth v. Bricker, 198 A.3d
371 (Pa. Super. 2018), we explained that SORNA’s registration requirements
are not governed by the statutory maximum sentences set forth in Chapter
11 of the Crimes Code. Martin, 205 A.3d at 1250. Furthermore, we held that
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4 Although Appellant asserts that this Court’s holding in Strafford was
incorrectly decided, we are bound by existing precedent until such time it is
overturned. See Commonwealth v. Reed, 107 A.3d 137, 143 (Pa. Super.
2014).
Further, we note the Chester County Court of Common Pleas has held that
SORNA was unconstitutional. On July 13, 2018, the Commonwealth filed an
appeal with the Pennsylvania Supreme Court challenging the Chester County
trial court’s decision. See Commonwealth v. Torsilieri, 37 MAP 2018 (Pa.
2018). On September 10, 2018, our Supreme Court noted probable
jurisdiction, and the parties are currently briefing the matter. Because the
Supreme Court has yet to issue a decision in Torsilieri, and because we are
not bound by decisions from the Court of Common Pleas, we remain obligated
to follow the existing, controlling case law. See Keller v. Mey, 67 A.3d 1, 5
n.6 (Pa. Super. 2013) (stating that the “Superior Court is not bound by
decisions of the Court of Common Pleas and is free to reach contrary holdings”
(citation omitted)); see also Reed, 107 A.3d at 143.
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SORNA independently authorized the registration of sexual offenders, even
though 42 Pa.C.S. § 9721 does not include registration as a sentencing
alternative. Id. at 1251.
The Martin Court also addressed an argument that the tier-based
registration periods violated Apprendi. The Court reasoned that a conviction
of a sexual offense determined the applicable registration period. Martin,
205 A.3d at 1252. Therefore, the imposition of a registration period did not
require additional factual findings by a trial court. Id.; 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”). Accordingly, even if the
imposition of a registration period increased the range of punishment faced
by a defendant, SORNA’s procedures did not violate Apprendi. Martin, 205
A.3d at 1252.
Here, the trial court classified Appellant as a Tier I offender based on his
conviction for corruption of minors. Pursuant to Martin, the court was
authorized to impose a fifteen-year registration requirement as part of
Appellant’s sentence. See Martin, 205 A.3d at 1251. In so doing, the court
was not limited by the statutory maximum established for the underlying
offense. See id. Lastly, Appellant’s registration requirement was properly
based on his underlying conviction and not an additional fact not found by a
fact-finder. See id. at 1252; Golson, 189 A.3d at 1003.
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Commonwealth’s Application for Post-Submission Communication
granted. Judgment of sentence affirmed.
Judge Ott joins in the memorandum.
Judge Pellegrini files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/21/2019
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