Com. v. Mamel, T.

J-S76038-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THEODORE MAMEL,
Appellant No. 1263 WDA 2014
Appeal from the Judgment of Sentence of July 23, 2014
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000384-2014
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 06, 2015
Appellant, Theodore Mamel, appeals from the judgment of sentence
entered on July 23, 2014, following his guilty plea convictions of unlawful
contact with a minor – open lewdness, sexual abuse of children -
disseminating photographs of child sex acts, and child pornography.1 We
affirm.
The trial court summarized the facts and procedural history of this
case as follows:
Pursuant to a plea bargain, [Appellant] pled guilty on
July 21, 2014 to [the aforementioned charges]. Two other
charges were then nolle prossed. The [trial c]ourt
sentenced [Appellant] on July 23, 2014 to a term of
incarceration of one to two years pursuant to the plea
entered to the charge of [u]nlawful contact, and accepted
____________________________________________
1
18 Pa.C.S.A. §§ 6318(a)(2), 6312(c), and 6312(d), respectively.
J-S76038-14
the pleas relative to [d]isseminating [p]hotos and [c]hild
[p]ornography without the imposition of further penalty.
During his plea, [Appellant] acknowledged viewing
pictures of naked female children, whom he knew to be
under the age of eighteen years, on his computer and then
sending those pictures to other computers owned by other
people. He agreed to be sentenced without a pre-sentence
report, but was notified that he would need to be assessed
by the Sexual Offender Assessment Board. At the time of
his sentencing, [Appellant] was informed of his duty to
register for twenty-five years, by appearing twice per year
at the registration site, and he was ordered to provide his
fingerprints, palm prints, DNA sample and a photograph to
the state police. He filed no post-sentence motions.
Trial Court Opinion, 8/11/2014, at 1-2. This timely appeal followed.2
On appeal, Appellant raises the following claims for our consideration:
1. Is it unconstitutional to require an appellant to register
for a [25-year period]3 when said registration
requirement exceeds the statutory maximum penalty for
Appellant’s offense?
2. Is the Adam Walsh statute unconstitutional in requiring
[] Appellant to register for twenty[-]five (25) years?
Appellant’s Brief at 7 (complete capitalization omitted).
____________________________________________
2
On July 31, 2014, Appellant filed a notice of appeal. On August 5, 2014,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
on August 7, 2014. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on August 11, 2014.
3
As discussed below, Appellant was required to register as a sex offender
for 25 years based upon his underlying conviction. At times throughout his
brief, however, Appellant claims he was subjected to lifetime registration;
thus, we have corrected this error throughout this memorandum.
-2-
J-S76038-14
Appellant’s issues are inter-related, so we will examine them together.
In his first issue presented, “Appellant avers that the imposition of the
additional [25-year] registration [for sexual offenders] is illegal as it exceeds
the statutory maximum penalty pr[e]scribed for the crime of which he was
convicted [- unlawful contact with a minor].” Appellant’s Brief at 11.
Appellant claims that while previous Pennsylvania decisions have held that
registration requirements are civil penalties, those requirements are imposed
at sentencing, potentially subject the offender to additional criminal
penalties, and, therefore, the imposition of registration requirements is
illegal. Id. Thus, Appellant challenges the constitutionality of the Sexual
Offender Registration and Notification Act (SORNA). Id. at 12. “Appellant
believes that to require [] a registration period [exceeding the statutory
sentencing maximums for the crime upon which he pled guilty] constitutes
an unusual punishment as barred by the Pennsylvania and U.S.
Constitutions[.]” Id. at 12.
Initially, we note that Appellant has presented scant legal argument in
support of his contentions and we could find his issues waived. See
Commonwealth v. Miller, 721 A.2d 1121, 1124 (Pa. Super. 1998) (“When
issues are not properly raised and developed in briefs, when briefs are
wholly inadequate to present specific issues for review, a court will not
consider the merits thereof.”). However, we are cognizant that “[s]o long as
jurisdictional requirements are met, an illegal sentence can never be waived
and may be reviewed sua sponte by this court.” Commonwealth v.
-3-
J-S76038-14
Edrington, 780 A.2d 721, 723 (Pa. Super. 2001). Thus, we proceed to
examine Appellant’s claims.
Although Appellant initially frames his first issue as a challenge to the
“constitutionality” of SORNA’s 25-year registration requirement, we shall
review this claim as an objection to the legality of Appellant’s sentence since
the thrust of Appellant’s argument is that the registration requirement is
invalid because it exceeds the statutory maximum penalty for Appellant’s
offense. “Issues relating to the legality of a sentence are questions of law.
. . . Our standard of review over such questions is de novo and our scope of
review is plenary.” Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa.
Super. 2014). As this Court has explained:
On December 20, 2011, the legislature replaced Megan’s
Law with SORNA, effective December 20, 2012, to
strengthen registration requirements for sex offenders and
to bring Pennsylvania into compliance with the Adam Walsh
Child Protection and Safety Act, 42 U.S.C.A. § 16901 et seq.
Section 9799.14 of SORNA establishes a three-tier system
of specifically enumerated offenses requiring registration for
differing lengths of time.
Commonwealth v. Sampolski, 89 A.3d 1287, 1288 (Pa. Super. 2014).
Unlawful contact with a minor is a Tier II offense and requires a 25-year
period of registration. See 42 Pa.C.S.A. § 9799.14(c)(5); 42 Pa.C.S.A.
§ 9799.15(a)(2).
As to Appellant’s contention that the 25-year registration requirement
is illegal because it exceeds the statutory maximum sentence for unlawful
-4-
J-S76038-14
contact with a minor, this Court recently rejected a similar challenge,
stating:
In [Commonwealth v. Williams, 832 A.2d 962 (Pa.
2003),] our Supreme Court was asked to decide whether
certain provisions of Megan’s Law II were constitutional as it
applied to sexually violent predators (SVPs). The Williams
Court specifically held that the [application of the]
registration, notification, and counseling provisions of
Megan’s Law II, to offenders deemed to be SVPs, were non-
punitive, regulatory measures supporting a legitimate
governmental purpose. Id. at 986. However, [our
Supreme] Court did find that the prescribed penalties that
attach to SVP’s for failure to register and verify their
residence were unconstitutionally punitive and, therefore,
invalidated those provisions. Id. . . .
However, [in McDonough, we determined that] [e]ven
assuming that [Appellant’s] 15-year registration
requirement [wa]s excessive in comparison to his actual
sentence of one to two years’ imprisonment, we [could not]
ignore our Supreme Court’s pronouncement that:
Because [it] do[es] not view the registration
requirements as punitive but, rather, remedial, [it]
does not perceive mandating compliance by
offenders who have served their maximum term to
be improper. Furthermore, the fact that an offender
may be held until such information is furnished is no
different from confining someone in a civil contempt
proceeding. While any imprisonment, of course, has
punitive and deterrent effects, it must be viewed as
remedial if release is conditioned upon one’s
willingness to comply with a particular mandate.
Commonwealth v. Gaffney, 733 A.2d 616, 622 (Pa.
1999).
* * *
While [the cases relied upon] were decided prior to the
effective date of SORNA, the same principles behind the
-5-
J-S76038-14
registration requirements for sexual offenders under
Megan’s Law apply to those subject to SORNA. Namely, to
effectuate, through remedial legislation, the non-punitive
goal of public safety.
Commonwealth v. McDonough, 96 A.3d 1067, 1070–1071 (Pa. Super.
2014) (emphasis removed); see Commonwealth v. Benner, 853 A.2d
1068, 1070 (Pa. Super. 2004) (internal quotation marks, alteration, and
citations omitted) (“The registration provisions of Megan’s Law do not
constitute criminal punishment. . . . [T]he registration requirement is
properly characterized as a collateral consequence of the defendant’s plea,
as it cannot be considered to have a definite, immediate and largely
automatic effect on a defendant’s punishment.”).
Appellant’s challenge in this case focuses upon the registration
requirement itself, not the punishment for a failure to register in accordance
with SORNA’s provisions. See Appellant’s Brief at 11. Under McDonough, a
registration requirement that exceeds the statutory maximum sentence is
not illegal. Although McDonough dealt with a 15-year registration
requirement, its rationale is equally applicable to a 25-year registration
requirement. Therefore, Appellant’s 25-year registration requirement was
not an illegal sentence.
In his second issue, Appellant contends that SORNA is
unconstitutional. Essentially, he alleges that SORNA violates the prohibition
against cruel and unusual punishment found in the Eighth Amendment to the
United States Constitution (as incorporated against the states through the
Fourteenth Amendment) and article I, section 13 of the Pennsylvania
-6-
J-S76038-14
Constitution. The constitutionality of a statute is a pure question of law,
therefore our standard of review is de novo and our scope of review is
plenary. Robinson Tp., Wash. Cnty. v. Commonwealth, 83 A.3d 901,
943 (Pa. 2013) (citation omitted).
“[T]he Pennsylvania prohibition against cruel and unusual punishment
is coextensive with the Eighth and Fourteenth Amendments to the United
States Constitution, and [] the Pennsylvania Constitution affords no broader
protection against excessive sentences than that provided by the Eighth
Amendment to the United States Constitution.” Commonwealth v. Elia, 83
A.3d 254, 267 (Pa. Super. 2013) (internal quotation marks, alteration, and
citation omitted), appeal denied, 94 A.3d 1007 (Pa. 2014). It is well-settled
that when a statute imposes a disability on a defendant for a reason other
than to punish, it is considered non-penal and outside the confines of the
Eighth Amendment. See Trop v. Dulles, 356 U.S. 86, 96 (1958). As noted
above, in McDonough this Court recently held that SORNA’s goal is “to
effectuate, through remedial legislation, the non-punitive goal of public
safety.” McDonough, 96 A.3d at 1071; see Benner, 853 A.2d at 1070.
We note that our decision in McDonough is congruent with the
decisions of a long list of courts. At least three United States Courts of
Appeals have held that registration requirements under the federal version
of SORNA do not violate the Eighth Amendment. United States v. Under
Seal, 709 F.3d 257, 265 (4th Cir. 2013); United States v. Crews, 496 F.
App’x 896, 901 (11th Cir. 2012); United States v. Davis, 352 F. App’x
-7-
J-S76038-14
270, 272 (10th Cir. 2009). The Supreme Court of Nevada has likewise held
that Nevada’s version of SORNA does not violate the Eighth Amendment.
Nevada v. Eighth Jud. Dist. Ct. (Logan D.), 306 P.3d 369, 388 n.13
(Nev. 2013). Furthermore, at least five United States Courts of Appeals
have held that the federal version of SORNA is a civil regulatory scheme,
foreclosing the possibility that it violates the Eighth Amendment. United
States v. Roberson, 752 F.3d 517, 524 (1st Cir. 2014); United States v.
Shannon, 511 F. App’x 487, 492 (6th Cir. 2013); United States v. Leach,
639 F.3d 769, 773 (7th Cir.2011); United States v. Young, 585 F.3d 199,
204–205 (5th Cir. 2009); United States v. May, 535 F.3d 912, 920 (8th
Cir. 2008). Courts of last resort in at least two other jurisdictions have
likewise held that their respective versions of SORNA are civil regulatory
schemes. Doe v. Dep't of Pub. Safety & Corr. Servs., 62 A.3d 123, 155–
156 (Md. 2013); Doe I v. Williams, 61 A.3d 718, 730 (Me. 2013) (citation
omitted);
As SORNA is a non-punitive, remedial scheme, it is not punishment for
the purposes of the Eighth Amendment or article 1, section 13 of the
Pennsylvania Constitution. Therefore, SORNA’s 25-year registration
requirement does not violate the prohibition against cruel and unusual
punishment found in the federal and state constitutions.
Judgment of sentence affirmed.
Judge Panella joins the memorandum.
President Judge Emeritus Ford Elliott concurs in the result.
-8-
J-S76038-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/2015
-9-