Com. v. Wilson, K.

J-A06026-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KYLE LEE WILSON :
:
Appellant : No. 491 MDA 2018
Appeal from the Judgment of Sentence January 23, 2018
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0000795-2017
BEFORE: OTT, J., NICHOLS, J., and PELLEGRINI, J.*
DISSENTING MEMORANDUM BY PELLEGRINI, J.: FILED JUNE 21, 2019
While there is no doubt that that Kyle Lee Wilson (Wilson) must comply
with the Sex Offender Registration and Notification Act (SORNA), I would hold
that the trial court had no jurisdiction to impose, as part of the sentence,
SORNA registration because those requirements are imposed independently
as a collateral consequence of his conviction of one of the enumerated crimes.
Accordingly, I respectfully dissent.
On October 17, 2017, Wilson pled guilty to criminal conduct that
occurred between February 3, 2017, and February 5, 2017. On January 23,
2018, the trial court sentenced Wilson to an aggregate term of three-and-a-
half to seven years’ incarceration. Among other things, the trial court stated
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A06026-19
that Wilson is “ordered to comply with the twenty-five year registration
requirements, and to obtain a Sexual Offender Evaluation, and to comply with
any and all treatment recommendations.” Trial Court Opinion. Wilson then
appealed the sentence claiming that the trial court had no authority to impose
SORNA registration making that portion of the trial court sentencing order
illegal and that he did not have to register.
The majority properly relies on our recent decision in Commonwealth
v. Martin, 205 A.3d 1247 (Pa. Super. 2019),1 that the trial court’s imposition
of the SORNA registration requirement was not an illegal sentence. In Martin,
we held that even though 42 Pa.C.S. § 9721 does not include registration as
a sentencing alternative, SORNA independently authorized the registration of
sexual offenders. In arriving at that conclusion in Martin, we relied on our
decision in Commonwealth v. Strafford, 194 A.3d 168, 172-73 (Pa. Super.
____________________________________________
1 Martin, as well as numerous other cases challenging SORNA, were the result
of our Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189(Pa. 2017). In that case, our Supreme Court held that the registration
requirements of the former version of SORNA were punitive for purposes of
the constitutional analysis of whether retroactive application of increasing
SORNA registration requirements. However, Muniz does not hold that SORNA
is unconstitutional or invalidate its registration requirements. It holds only
that SORNA violates the ex post facto clause of the Pennsylvania Constitution
because when new harsher provisions are applied retroactively, they are
punitive. See Commonwealth v. Hart, 174 A.3d 660, 667 n.9 (Pa. Super.
2017). Also, when SORNA was reenacted, the General Assembly specifically
stated that it shall not be construed as punitive. See 42 Pa.C.S. § 9799.11(b).
-2-
J-A06026-19
2018), where, recognizing that SORNA registration requirements were not
authorized as a sentencing option, we went on to say:
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 Section 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.
(Emphasis added.)
However, I disagree with Martin and Strafford because the General
Assembly did not authorize courts to order SORNA registration requirements
as part of the sentencing order. Let me explain.
It is well-settled that, “If no statutory authorization exists for a
particular sentence, that sentence is illegal and subject to correction. An
illegal sentence must be vacated.” Commonwealth v. Leverette, 911 A.2d
998, 1001–02 (Pa. Super. 2006) (citations omitted). There is no dispute that
-3-
J-A06026-19
Section 9721(a) of the Sentencing Code, which lists the type of sentences that
can be imposed, does not include any authorization to impose SORNA
requirements.
Under SORNA, the sole obligation of the sentencing judge is to merely
“inform” the offender of his or her obligation to register and its requirements.
42 Pa.C.S. § 9799.20. Moreover, the court’s failure to do so is irrelevant:
“Failure by the court to provide the information . . . to correctly inform . . . or
to require a sexual offender to register shall not relieve the sexual offender
from the requirements of this subchapter.” 42 Pa.C.S. § 9799.23(b)(1). In
fact, with limited exceptions, a court has “no authority to relieve a sexual
offender from the duty to register . . . or to modify the requirements[.]” 42
Pa.C.S. § 9799.23(b)(2).
Contrary to the holdings in both Martin and Stafford, SORNA does not
give the trial court any authority to impose SORNA obligations as part of the
sentence but only provides that it is to inform the offender of his or obligation
to register and his obligations under that Act. Even if the sentencing court
does not carry that out obligation, the General Assembly stated that does not
matter, informed or not informed, the offender is still required to register and
comply with SORNA’s provisions. All of this leads to the inescapable
conclusion that under SORNA, the trial court cannot include that SORNA
registration as part of sentencing because the General Assembly made clear
that offenders convicted of the enumerated crimes have an independent
-4-
J-A06026-19
mandatory obligation to register under SORNA as a civil collateral
consequence of his or her crime.2
Because SORNA requirements cannot be imposed as part of the
sentence and are imposed independently as a collateral consequence of
criminal conviction, the trial court had no sentencing authority to impose
compliance with SORNA as part of its sentencing order. Accordingly, I dissent
because I would vacate that portion of the sentencing order.3
____________________________________________
2 The sentencing court has no role in the enforcement of SORNA registration
and reporting requirements. To enforce its provisions, the General Assembly
created an administrative scheme by imposing an obligation on the offender
to register with the Pennsylvania State Police (PSP) and otherwise comply with
its provisions. See 42 Pa.C.S. § 9799.55; 42 Pa.C.S.A. § 9799.56. Generally,
the PSP is in charge of the overall administration, implementation and
enforcement of SORNA. If an offender fails to register or otherwise provide
the requisite notices (e.g., change of address), the PSP is authorized to bring
charges for failure to do so. See 42 Pa.C.S. § 9799.56(d). An offender can
challenge PSP’s administration or the legality of SORNA requirements. The
PSP has been given standing to appear and contest a filing in a court of this
Commonwealth which seeks to challenge in any way the obligation of an
individual required to register under SORNA. See 42 Pa.C.S. § 9799.74.
3Necessarily, I would reverse Martin and Stafford to the extent that the trial
court can impose SORNA requirements as part of sentencing.
-5-