Commonwealth v. Luciani ( 2018 )

J-S78033-18
2018 Pa. Super. 355
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY LUCIANI :
:
Appellant : No. 699 EDA 2018
Appeal from the Judgment of Sentence February 9, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0001608-2017,
CP-46-CR-0002243-2017
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED DECEMBER 24, 2018
Appellant Anthony Luciani appeals from the judgment of sentence
entered in the Court of Common Pleas of Montgomery County on February 9,
2018, following his open guilty plea to various violations of criminal statutes
regarding sexual offenses charged at separate docket numbers. Following our
review, we affirm in part, vacate in part, and remand for further proceedings.
The trial court summarized the pertinent facts and procedural history of
this case as follows:
On August 23, 2017, [Appellant] appeared before the
undersigned and entered an open guilty plea of six (6) counts
under docket 2243-2017 and five (5) counts under docket 1608-
2017. These charges are based on violations of criminal statutes
regarding sexual offenses. The bills of information allege that the
offenses under docket 2243-2017 occurred between January 1,
2010 and March 31, 2010 and that the charges under docket
number 1608-2017 occurred from January 17, 2017 through
February 15, 2017.
At the time that he entered his guilty plea, [Appellant]
executed two written colloquies regarding the requirements to
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S78033-18
register as a sex offender, pursuant to the version of 42 Pa.C.S.A.
§ 9799.10, et seq. (SORNA)[1] that was then in effect. These
colloquies informed [Appellant] that his convictions subjected him
to a registration period of twenty-five (25) years under docket
number 1608-2017 and a lifetime registration period under docket
number 2243-2017.
[Appellant] appeared before the undersigned for sentencing
on February 9, 2018. Upon consideration of the arguments of
counsel and review of the record, the undersigned imposed the
following standard range sentences:
On Count 1 of 2243-2017 involuntary deviate sexual
intercourse, not less than five and a half (5.5) nor more than
eleven (11) years' imprisonment.
On Count 2 of 2243-2017, involuntary deviate sexual
intercourse, not less than five and a half (5.5) nor more than
eleven (11) years' imprisonment, to run concurrently with the
sentence imposed on Count 1 of 2243-17.
On Count 3 of 2243-2017, unlawful contact with a minor,
not less than five and a half (5.5) nor more than eleven (11) years'
imprisonment to run concurrently with the sentences imposed on
Count 1 and Count 2 of 2243-2017.
On Count 4 of 2243-2017, statutory sexual assault, not less
than one and half (1.5) nor more than two (2) years'
imprisonment, to run consecutively with Count 1 and Count 2 of
2243-17.
On Count 5 of 2243-2017, criminal use of a communication
facility, seven (7) years' probation to run consecutively to Count
4 of 2243-17.
On Count 6 of 2243-2017, corruption of minors, five (5)
years’ probation to run concurrently with Count 5 of 2243-17.1
On Count 1 of 1608-2017, unlawful contact with a minor,
not less than one (1) nor more than two (2) years’ imprisonment.
____________________________________________
1 The Sex Offender Registration and Notification Act, 42 Pa.C.S.A. §§
9799.10–9799.41. “SORNA was enacted on December 20, 2011, and became
effective on December 20, 2012. SORNA recently was amended on February
21, 2018, by H.B. 631, 202 Gen. Assem., Reg. Sess. (Pa. 2018), Act 10 of
2018.” Commonwealth v. Golson, 189 A.3d 994, 1003 (Pa.Super. 2018).
The Act was further amended on June 12, 2018, by H.B. 1952, 202 Gen.
Assem., Reg. Sess. (Pa. 2018), Act 29 of 2018.
-2-
J-S78033-18
On Count 2 of 1608-2017, unlawful contact with a minor,
not less than one (1) nor more than (2) years' imprisonment, to
run concurrently with Count 1 of 1608-2017.
On Count 3 of 1608-2017, obscene and other sexual
materials and performances, five (5) years' probation, to run
consecutively to Count 2 of 1608-2017.
On Count 4 of 1608-2017, obscene and other sexual
materials and performances, five (5) years’ probation to run
concurrently with Count 3 of 1608-2017.
On Count 5 of 1608-2017, criminal use of a communication
facility, five (5) years’ probation, to run concurrently to Count 3
and Count 4 of 1608-2017.
Finally, the undersigned directed that [Appellant] register as
a tier three sex offender under SORNA for the requisite lifetime
period (N.T. February 9, 2018, p. 81).2
On March 6, 2018, Assistant Public Defender Raymond D.
Roberts, Esquire, filed a timely notice of direct appeal to the
Superior Court of Pennsylvania on [Appellant’s] behalf:[2] By order
dated March 9, 2018, the undersigned directed the filing of a
statement of the errors complained of on appeal, pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b). On March 14,
2018. Mr. Roberts filed [Appellant’s] Rule 1925(b) statement.
In his 1925(b) statement, [Appellant] challenges the legality
of the registration requirements imposed by the convictions under
docket numbers 2243-2017 and 1608-2017. [Appellant] further
____________________________________________
2 We note that Pursuant to Rule 582 (B)(1) of the Pennsylvania Rules of
Criminal Procedure, the Commonwealth provided notice that Criminal
Information No. 1608-2017, and Criminal Information No. 2243-2017, would
be joined for the purpose of trial and in doing so indicated that joinder was
appropriate pursuant to Pa.R.Crim.P. 582 (A)(1)(a). However, Appellant’s
notice of appeal lists both docket numbers, despite the fact they are separate
matters. Although this was a common practice, on June 1, 2018, the
Pennsylvania Supreme Court filed its decision in Commonwealth v. Walker,
___ Pa. ____, 185 A.3d 969 (2018), holding that Pa.R.A.P. 341(a) requires
“that when a single order resolves issues arising on more than one lower court
docket, separate notices of appeal must be filed. The failure to do so will
result in quashal of the appeal.” Id. at 977 (footnote omitted). However, the
Walker Court announced the decision would be applied prospectively only.
See id. Therefore, because the notice of appeal in the present case was filed
before Walker, we need not quash this appeal.
-3-
J-S78033-18
asserts, pursuant to Commonwealth v. Muniz, 164 A.3d 1189
(Pa. 2017), that all of the mandatory registration requirements
exceed the statutory maximum sentence that [Appellant] could
receive on his convictions, thereby illegally punishing [Appellant].
Finally, [Appellant] contends that the registration requirements
implemented under docket number 2243-2017, related to
incidents that occurred between January 1, 2010 and March 31,
2010, cannot be implemented, as the registration requirements
under SORNA cannot be applied retroactively. . . .
____
1 During sentencing, this [c]ourt erroneously referred to Count 6
as a second Count 5. (N.T. February 9, 2018, p. 81).
2 The sentencing sheet under docket number 1608-2017
mistakenly required that [Appellant] register for life under SORNA.
This was an oversight, as the guilty plea colloquy of August 23,
2017 was correct in stating on the record and informing
[Appellant] correctly of the twenty five (25) year registration
requirement under docket 1608-2017 and the lifetime
requirement under 2243-2017. (N.T. August 23, 2017, pp. 11-
12). The sentencing sheet has been corrected to reflect the 25
year registration requirement imposed by SORNA for docket
number 1608-2107.
3 Subsequent to the filing of this Appeal, Attorney Roberts
resigned from his position with the Montgomery County Public
Defender's office.
Trial Court Opinion, filed 7/11/18, at 1-3.
Appellant raises the following Statement of the Questions Involved:
1. Did the [t]rial [c]ourt improperly impose a lifetime
reporting requirement on [Appellant] pursuant to Pennsylvania’s
Sex Offender Registration and Notification Act (“SORNA”), 42
Pa.C.S.A. §§ 9799.10 to 9799.41 for the charges found on bills of
information CP-46-CR-0002243-2017?
2. Did the [t]rial [c]ourt improperly impose a lifetime reporting
requirement on [Appellant] pursuant to Pennsylvania’s Sex
Offender Registration and Notification Act (“SORNA”), 42
Pa.C.S.A. §§ 9799.10 to 9799.41 for the charges found on bills of
information CP-46-CR-0001608-2017?
Brief for Appellant at 2.
-4-
J-S78033-18
Appellant summarizes his arguments on these claims as follows:
SORNA, 42 Pa.C.S. §§ 9791-9799.9, effective December 20,
2012, was declared to be punitive and thus ex post facto
punishment in Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2017). [Appellant] was sentenced pursuant to SORNA. All the
offenses on bills of information 2243-2017 occurred prior to
December 20, 2012. Thus, applying SORNA registration
requirements on [Appellant] pursuant to those counts is ex post
facto punishment.
In response to Muniz and its progeny, the General Assembly
enacted Act 29 of 2018, P.L. 140 (H.B. 1952)(June 12, 2018).
This law replaced SORNA and set up a two-track registration
program- Subchapter H, which is nearly identical to SORNA; and
Subchapter I, which models Megan’s Law II, at least in terms of
the length of registration (“SORNA II”). SORNA II is
unconstitutional as applied to [Appellant] for offenses committed
on bills of information 2243-2017.
The [c]ourt also ordered lifetime registration for the
offenses on bills of information 1608-2017. This is clearly in error.
The offenses for which [Appellant] pleaded guilty on 1608-2017
are Tier II offenses. Thus, twenty-five year registration is
mandated. The sexual offender registration colloquy [Appellant]
signed reflects the appropriate registration length of 25 years.
This illegal sentence of lifetime registration appears to be the
result of a scrivener’s error and needs to be corrected.
Brief of Appellant at 6-7.
Our standard of review following a plea of guilty is well-settled. “A plea
of guilty constitutes a waiver of all nonjurisdictional defects and defenses and
waives the right to challenge anything but the legality of [the] sentence and
the validity of [the] plea.” Commonwealth v. Dixon, 161 A.3d 949, 951 (Pa.
Super. 2017) (citation omitted) (brackets in original). As Appellant’s issues
present challenges to the legality of his sentence, our scope and standard of
review is as follows:
-5-
J-S78033-18
The scope and standard of review applied to determine the legality
of a sentence are well established. If no statutory authorization
exists for a particular sentence, that sentence is illegal and subject
to correction. An illegal sentence must be vacated. In evaluating
a trial court's application of a statute, our standard of review is
plenary and is limited to determining whether the trial court
committed an error of law.
Id. (citation omitted).
Herein, the trial court states that “[u]nder Megan’s Law II, an offender
who was convicted of involuntary deviate sexual intercourse, as in the case of
[Appellant], was subjected to a lifetime registration requirement. As such,
whether under SORNA, Megan’s Law III, or its predecessor, Megan’s Law II,
Appellant would be a lifetime registrant.” Trial Court Opinion, filed 7/11/18,
at 6. The trial court further reasons that “[s]hould it be determined that
SORNA was not to be retroactively applied at the time of [Appellant’s]
sentencing, it would result in harmless error, given that [Appellant] would be
subject to a lifetime registration requirement under both Megan’s Law II and
Megan’s Law III.” Id. For the reasons that follow, such a conclusion is in
error.
In Muniz, our Supreme Court held that SORNA's Subchapter H
registration requirements constitute criminal punishment. Muniz, 640 Pa. at
748, 164 A.3d at 1218. Accordingly, the Court held that retroactive
application of SORNA's Subchapter H requirements to defendants whose
crimes occurred prior to SORNA's effective date (December 20, 2012) violated
the ex post facto clause. Id. at 749, 164 A.3d at 1218. Additionally, Megan’s
-6-
J-S78033-18
Law III also was deemed unconstitutional by our Supreme Court in
Commonwealth v. Neiman, 624 Pa. 53, 61, 84 A.3d 603, 607 (2013), for
violating the single-subject rule of Article III, Section 3 of the Pennsylvania
Constitution. Consequently, Megan’s Law III is no longer a statute under
which registration requirements may be imposed.
In response to our Supreme Court's decision in Muniz and this Court's
decision in Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super. 2017)
(holding trial courts no longer can designate convicted defendants as sexually
violent predators or hold SVP hearings “until our General Assembly enacts a
constitutional designation mechanism[]” Id. at 1217) the Pennsylvania
General Assembly passed Acts 10 and 29 of 2018. The express purpose of
both legislative enactments was to cure SORNA's constitutional defects. See
42 Pa.C.S.A. § 9799.51(b)(4) (“it is the intention of the General Assembly to
address [Muniz and Butler]”). Specifically, our General Assembly modified
Subchapter H's registration requirements for those offenders convicted of
committing offenses that occurred on or after SORNA's effective date, i.e.,
December 20, 2012. Our General Assembly also added Subchapter I to Title
42, Part VII, Chapter 97. Subchapter I sets forth the registration requirements
that apply to all offenders convicted of committing offenses on or after
Megan's Law I's effective date (April 22, 1996), but prior to SORNA's effective
date.
-7-
J-S78033-18
Herein, Appellant pled guilty to charges at two separate docket numbers
for criminal conduct that occurred in 2010 and in 2017. Because SORNA was
enacted in December 2012, the conduct occurring between January 1, 2010,
and March 31, 2010, predated SORNA. Therefore, “application of [SORNA]
would inflict greater punishment on [A]ppellant than the law in effect at the
time he committed his crime” and thus, the statute cannot be applied
retroactively to Appellant without violating the ex post facto clause of the
Pennsylvania constitution. See Muniz, at 706, 164 A.3d at 1192-93, 1196.
In light of the foregoing we are constrained to vacate the trial court’s
February 9, 2018, judgment of sentence to the extent it imposes a Megan’s
Law III registration requirement upon Appellant for bill of information 2243-
17. We remand for the trial court to determine what, if any, registration
requirements apply to Appellant for these crimes under the current law. 3 For
instance, the Commonwealth argues that Act 29, which amended Act 10,
remedied the issues presented in Muniz and, therefore, Appellant would “still
be obligated to register as a sex offender for life based on his underlying
____________________________________________
3 See Act of February 21, 2018, P.L. 27, No. 10 (“commonly referred to as Act
10”). Act 10 amended several existing provisions of SORNA and also added
several new sections found at 42 Pa.C.S.A. §§ 9799.42, 9799.51-9799.75. In
addition, the Governor recently signed new legislation striking the Act 10
amendments and reenacting new SORNA provisions, effective June 12, 2018.
See Act of June 12, 2018, P.L. 1952, No. 29. Accordingly, it is appropriate for
the trial court to discern, in the first instance, what registration provisions
apply in this case.
-8-
J-S78033-18
offense of conviction and the registration statute in effect at the time of his
original plea and sentencing.” Commonwealth’s Brief at 45. On remand, the
Commonwealth may present this argument to the trial court. The trial court
shall then determine whether Act 29 remedied the issues presented in Muniz
and, depending on the resolution of that inquiry, which registration provision
applies in this case. In all other respects, we affirm Appellant’s judgment of
sentence at docket number 2243-2017.
Moreover, the trial court’s imposing registration requirements under
SORNA for the crimes to which Appellant pled guilty that occurred after
December 20, 2012, specifically between January 17, 2017, and February 15,
2017, was legal. Indeed, Appellant acknowledges that the offenses to which
he pled guilty at docket number 1608-2017 constitute Tier II offenses and,
thus, a twenty-five year registration period is mandated. Brief for Appellant
at 15. While Appellant states that the trial court did not address this error in
its Opinion, see Brief for Appellant at 15, the trial court did explain in its Rule
1925(a) Opinion that the sentencing sheet erroneously required Appellant to
register for life for the offenses on 1608-2017. The trial court explains “[t]his
was an oversight, as the guilty plea colloquy of August 23, 2017, was correct
in stating on the record and informing [Appellant] correctly of the twenty five
(25) year registration requirement under docket 1608-2017 and the lifetime
requirement under 2243-2017. (N.T. August 23, 2017, pp. 11-12)[.]” Trial
Court Opinion, filed 7/11/18, at 3 n. 2. The trial court indicates that the
-9-
J-S78033-18
sentencing sheet has been corrected to reflect the twenty-five year
registration requirement imposed for docket number 1608-2017 under
SORNA. Id. Therefore, this issue is moot.
Judgment of sentence vacated in part and affirmed in part. Case
remanded for further proceedings consistent with this Opinion. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2018
- 10 -