Com. v. Fenstermaker, R. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RANDY LEE FENSTERMAKER, JR., :
:
Appellant : No. 263 WDA 2018
Appeal from the Judgment of Sentence, February 8, 2018,
in the Court of Common Pleas of Butler County,
Criminal Division at No(s): CP-10-CR-0000592-2017.
BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.
MEMORANDIUM BY KUNSELMAN, J.: FILED DECEMBER 18, 2018
Randy Lee Fenstermaker, Jr. appeals his judgment of sentence, claiming
that his lifetime sentence of registration under the Sex Offender Registration
and Notification Act (SORNA)1 is illegal. He claims that the trial court could
not order registration in excess of the maximum possible incarceration periods
for his crimes – here, 14 years. This Court has recently rejected that legal
theory; thus, we affirm.
According to the Commonwealth’s affidavit of probable cause, on the
morning of February 27, 2017, Fenstermaker molested his roommate’s four-
year-old daughter. She immediately reported the assault to her father, who
called the police. Two days later, they arrested Fenstermaker. After receiving
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1 42 Pa.C.S.A. § 9799.10 et seq.
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his constitutional warnings under Miranda v. Arizona, 384 U.S. 436 (1966),
he confessed.
In October of 2017, Fenstermaker pleaded guilty to indecent assault2
and corruption of minors.3 The trial court accepted his negotiated guilty plea,
which called for an aggregate sentence of two to four years’ imprisonment.
The court also informed Fenstermaker that he was a Tier III offender
under SORNA and ordered him to comply with its registration requirements
for the rest of his life. Thereafter, he filed a post-sentence motion, claiming
that a lifetime registration requirement constituted an illegal sentence,
because the SORNA registration was for a longer period than the maximum
sentences for the crimes to which he pleaded guilty. The court of common
pleas rejected that contention.
This timely appeal followed.
Fenstermaker raises one issue on appeal. He argues that, because the
case of Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), held SORNA’s
registrations requirements to be criminal punishment, the common pleas court
“erred in sentencing him to an illegal sentence,4 as he was sentenced to a
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2 18 Pa.C.S.A. § 3126(a)(7).
3 18 Pa.C.S.A. § 6301(a)(1)(ii).
4 “We review the legality of a sentence de novo, and our scope of review is
plenary.” Commonwealth v. Butler, 173 A.3d 1212, 1215 (Pa. Super.
2017).
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lifetime registration under SORNA where the statutory maximum sentence is
fourteen years.” Fenstermaker’s Brief at 20.
The Commonwealth does not directly address Fenstermaker’s
argument. Instead, it replies that the version of SORNA, under which he was
sentenced, “no longer exists.”5 Commonwealth’s Brief at 1. It points out the
General Assembly, on February 21, 2018, amended SORNA via Act 10 (and,
later, via Act 29) “to specifically address Muniz, as well as Commonwealth
v. Butler, 173 A.3d 1212 (Pa. Super. 2017).” Id. Thus, the Commonwealth
thinks that Act 10 of 2018 (and, presumably, now Act 29) has reformed
SORNA from criminal punishment into a non-punitive, “collateral
consequence” of an underlying crime. Id.We need not address the Commonwealth’s claim that Acts 10 – and by
extension, Act 29 – have reverted sex-registration in Pennsylvania to a civil,
collateral consequence, rather than criminal punishment, to resolve this
appeal. Even if the General Assembly has failed in its attempt to render
SORNA’s registration requirements non-punitive, Fenstermaker would still
lose his appeal under Commonwealth v. Strafford, 194 A.3d 168 (Pa.
Super. 2018).
There, a panel of this Court held that our legislature could – and did –
create multiple types of punishment for a given crime. Thus, the legislature
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5 The Commonwealth is correct that the legislature has repealed and replaced
the original SORNA since Fenstermaker’s guilty plea and sentence. The first,
now-repealed-and-replaced rendition of SORNA was the General Assembly’s
fourth edition of Megan’s Law, which also suffered constitutional infirmities.
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may punish sex-offenders by both a statutory-maximum incarceration period
and a limitless SORNA-registration period thereafter. We found those two
punishments are separate and distinct. Thus, sex-offenders’ SORNA
registration periods are unrelated to whatever maximum-incarceration period
Chapter 11 of the Crimes Code establishes for their crimes.
We explained:
that the General Assembly “has the exclusive power to
pronounce which acts are crimes, to define crimes, and to
fix the punishment for all crimes. The legislature also has
the sole power to classify crimes[.]” Commonwealth v.
Eisenberg, 626 Pa. 512, 98 A.3d 1268, 1283 (2014)
(citation and quotation omitted).
Our General Assembly has authorized courts to impose
specific punishments when fashioning a sentence, and
specified maximum terms and amounts of those
punishments. These categories of punishment include (1)
partial or total confinement, (2) probation, (3) state or
county intermediate punishment, (4) a determination of
guilt without further penalty, and (5) a fine. 42 Pa.C.S. §
9721.
With respect to the punishment of incarceration, 18
Pa.C.S. § 1103 governs the maximum authorized sentence
of imprisonment for felony convictions. By a separate
statute, these maximum allowable terms also apply to
probationary sentences, a different category of punishment
authorized by the General Assembly. In 42 Pa.C.S. §
9754(a), the legislature directed that “[i]n imposing an
order of probation, the court shall specify at the time of
sentencing the length of any term during which the
defendant is to be supervised, which term may not exceed
the maximum term for which the defendant could be
confined, and the authority that shall conduct the
supervision.” Id. (emphasis added). Thus, the legislature
explicitly connected the authorized punishments of
incarceration and probation by statute.
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However, most sentencing alternatives are not tied to the
maximum authorized term of incarceration. For example,
the legislature has authorized courts to include in sentences
the requirement that a defendant pay a fine or restitution.
These categories of punishment are not limited by the
maximum period of incarceration; rather, the legislature set
different maximum authorized amounts of punishment a
court may impose as part of its sentence. See, e.g., 18
Pa.C.S. § 1101 (defining maximum fines); 18 Pa.C.S. §
1106 (providing statutory scheme for restitution for injuries
to person or property).
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. § 9799.14 (“Sexual
offenses and tier system”); 42 Pa.C.S. § 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 Appellant’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.
Accordingly, we conclude that Appellant’s lifetime
registration requirement authorized by SORNA does not
constitute an illegal sentence. Appellant is not entitled to
relief.
Strafford, 194 A.3d at 172–73. See also Commonwealth v. Bricker, ___
A.3d ___, 2018 WL 5093265 (Pa. Super. 2018) (accord).
Based on our decision in Stafford, supra, Fenstermaker’s argument on
appeal fails.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2018
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