Com. v. Frye, A. ( 2014 )

J-S50044-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALEXANDER LEWIS FRYE,
Appellant No. 552 WDA 2014
Appeal from the Judgment of Sentence entered March 21, 2014,
in the Court of Common Pleas of Fayette County,
Criminal Division, at No(s): CP-26-CR-0001945-2012
and CP-26-CR-0001946-2012
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED AUGUST 11, 2014
sentence imposed after he pled guilty to one count of aggravated indecent
assault at Docket No. 1945-2012 and one count of aggravated indecent
assault at Docket No. 1946-2012.1 Relevant to this appeal, the trial court
ordered Appellant to lifetime registration as a sex offender pursuant to the
newly enacted registration requirements of Pennsylvania's Sex Offender
See 42 Pa.C.S.A. §§ 9799.14,
9799.15. Upon review, we affirm.
The pertinent procedural history may be summarized as follows: On
November 14, 2012, the Commonwealth filed an information charging
____________________________________________
1
See 18 Pa.C.S.A. § 3125.
J-S50044-14
Appellant at Docket No. 1945-2012 with three counts of aggravated indecent
assault of a child, three counts of sexual assault, three counts of aggravated
indecent assault of a person less than 13 years of age, three counts of
indecent assault of a person less than 13 years of age, three counts of
unlawful contact with a minor, and three counts of corruption of minors.2 At
Docket No. 1946-2012, the Commonwealth charged Appellant with one
count of aggravated indecent assault of a child, intimidation of witnesses or
victims, unlawful contact with a minor, sexual assault, aggravated indecent
assault of a person less than 13 years of age, corruption of minors, and
indecent assault of a person less than 13 years of age.3
On January 6, 2014, Appellant entered guilty pleas to one count of
aggravated indecent assault at Docket No. 1945-2012, and one count of
aggravated indecent assault at Docket No. 1946 -2012. That same day, the
trial court ordered an assessment of Appellant from the Sexual Offender
Assessment Board in accordance with 42 Pa.C.S.A. § 9791.
On March 21, 2014, the trial court conducted a sexual offender
assessment hearing after which it deemed Appellant to be a sexually violent
predator. The trial court proceeded to sentence Appellant to concurrent
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2
18 Pa.C.S.A. §§ 3125(b), 3124.1, 3125(a)(7), 3126(a)(7), 6318(a)(1),
and 6301(a)(1)(ii).
3
18 Pa.C.S.A. §§ 3125(b), 4952(a)(1), 6318(a)(1), 3124.1, 3125(a)(7),
6301(a)(1)(ii) and 3126(a)(7).
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sentences of 6½ to 20 years of imprisonment. The trial court also directed
Appellant to comply with a lifetime registration requirement as a Tier III sex
offender pursuant to the new registration requirements of SORNA. Appellant
filed a timely post-sentence motion on March 27, 2014, asserting that his
sentence was excessive, and that the lifetime registration requirement under
March 31, 2014. This appeal followed. Appellant filed a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal, and on June 2, 2014, the trial
Appellant presents two issues for our review:
1. IS IT UNCONSTITUTIONAL TO REQUIRE AN APPELLANT TO
REGISTER FOR A LIFETIME FOR A CRIME THAT CARRIES A
MAXIMUM PENALTY IN THE INSTANT CASE OF TWENTY YEARS?
2. IS THE ADAM WALSH STATUTE [SORNA]
UNCONSTITUTIONAL IN REQUIRING APPELLANT TO REGISTER
FOR A LIFETIME FOR SAID CRIME?
Preliminarily, we note that in its Statement in Lieu of Opinion, the trial
because Appellant failed
to raise them during the sexual offender assessment hearing, at sentencing,
or in his post-sentence motion. Our review of the record reveals, however,
that in his written post-
lifetime registration is unconstitutional in requiring this appellant to register
for a lifetime when said registration requirement exceeds the statutory
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J-S50044-14
-Sentence Motion for
Modification of Sentence, 3/27/14.
preserved for our review.
together. Appellant argues that the lifetime registration requirement of
d by the Pennsylvania and
-
SORNA is unconstitutional comprises three pages of his brief, with no
reference to the precise Constitutional provisions on which he bases his
assertion, or any reference to the applicable statutory section of SORNA
containing the contested registration requirement.
When an appellant challenges the constitutionality of a statute,
the appellant presents this Court with a question of law. Our
consideration of questions of law is plenary. A statute is
presumed to be constitutional and will not be declared
unconstitutional unless it clearly, palpably, and plainly violates
the constitution. Thus, the party challenging the
constitutionality of a statute has a heavy burden of persuasion.
Commonwealth v. Howe, 842 A.2d 436, 441 (Pa. Super. 2004) (citations
omitted).
r
Eighth Amendment of the United States Constitution, and Article 1, Section
13 of the Pennsylvania Constitution. See Commonwealth v. Baker, 24
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A.3d 1006, 1026, n. 20 (Pa. Super. 2011
Pennsylvania Constitution provides no greater protection against cruel and
see also
Commonwealth v. Elia, 83 A.3d 254, 267 (Pa. Super. 2013).
Recently, in Commonwealth v. Perez, --- A.3d ----, 2014 WL
3339161 (Pa. Super. July 9, 2014), we addressed whether SORNA was
state constitutions. We held in Perez that the effects of SORNA were not
Id. at 11; 42 Pa.C.S.A. § 9799.11(b)(2).
Given our determination in Perez that any SORNA constraints are
requirements of SORNA constitute cruel and unusual punishment is without
merit.4
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4
See e.g. McCarty v. Roos, 2014 WL 551543 (D. Nev. Feb. 10, 2014)
(citations omitted) (explaining that the federal SORNA cannot violate rights
implicated by the criminal justice system, such as double jeopardy and cruel
and unusual punishment, because it is a civil regulatory scheme); Spiteri v.
Russo, 2013 WL 4806960 (E.D.N.Y. Sept. 7, 2013) (sex offender
classifications under SORNA could not constitute cruel and unusual
punishment for the same reasons that SORNA was found not to violate the
Ex Post Facto Clause, i.e. because the registration requirement is not
punitive); United States v. Davis, 352 F. App'x 270, 272 (10th Cir. 2009)
(Footnote Continued Next Page)
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2014
_______________________
(Footnote Continued)
(holding that registration of convicted sex offenders under SORNA does not
nt's prohibition on cruel and unusual
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