Com. v. Fitzgerald, S.

J. S67045/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
SHAUN FITZGERALD, :
:
Appellant : No. 1129 WDA 2014
Appeal from the Judgment of Sentence July 1, 2014
In the Court of Common Pleas of Fayette County
Criminal Division No(s).: CP-26-CR-0001227-2012
BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 11, 2014
Appellant, Shaun Fitzgerald, appeals from the judgment of sentence
entered in the Fayette County Court of Common Pleas following his guilty
plea to rape of a child.1 He avers: (1) the lifetime registration requirement
of the Pennsylvania Sexual Offender Registration and Notification Act 2
(“SORNA”) is unconstitutional because the statutory maximum sentence for
rape of a child is twenty years; and (2) his sentence of six to twenty years’
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3121(c).
2
42 Pa.C.S. §§ 9799.10-9799.41.
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imprisonment was excessive.3 We affirm.
On April 8, 2014, Appellant entered an open guilty plea to rape of a
child, statutory sexual assault, corruption of minors,4 and two counts each of
involuntary deviate sexual intercourse, aggravated indecent assault, and
indecent assault.5 On July 1, 2014, the trial court imposed a sentence of six
to twenty years’ imprisonment for rape of a child. The court found Appellant
was not a sexually violent predator, but ordered him to comply with lifetime
registration under Section 9799.23 of SORNA.
Appellant filed a timely post-sentence motion, arguing his sentence
was “excessive in view of the circumstances surrounding this matter,” “a
lighter sentence would be sufficient for any rehabilitative needs,” and his
“sentence of a life time registration is unconstitutional” because it “exceeds
the statutory maximum penalty for [his] offense.” Appellant’s Post-Sentence
3
The certified record did not include the July 1, 2014 sentencing transcript,
which we deem is necessary for our review of Appellant’s sentencing issues.
Upon informal inquiry by this Court, the trial court provided that transcript
as a supplemental record. We remind Appellant’s counsel, “Our law is
unequivocal that the responsibility rests upon the appellant to ensure that
the record certified on appeal is complete in the sense that it contains all of
the materials necessary for the reviewing court to perform its duty.” See
Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008) (citations
omitted).
4
18 Pa.C.S. §§ 3122.1(a), 6301(a)(1)(ii).
5
18 Pa.C.S. §§ 3123(a)(7), (b), 3125(a)(7), (8), 3126(a)(7), (8). The
victim in this case was eleven years old.
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Mot. for Modification of Sentence, 7/3/14, at ¶¶ 3-5. The court denied the
motion and Appellant took this timely appeal.
Appellant’s first claim is that SORNA is unconstitutional because the
lifetime “registration requirement is beyond the statutory maximum
sentence for the crime that [he] entered his plea.” Appellant’s Brief at 9.
Appellant avers that this “extensive registration period constitutes an
unusual punishment as barred by both the Pennsylvania Constitution and the
United States Constitution.” Id. Appellant also reasons,
It has been suggested that the registration requirements
of SORNA, and previous versions of Megan’s Law, are
actually civil penalties. If that is the case, then the court
should not be imposing the requirements at the time of
sentencing,” because the restrictions “can also result in
criminal penalties . . . if the defendant does not.
Id. Appellant then relies on Commonwealth v. Williams, 832 A.2d 962
(Pa. 2003),6 for the proposition that “penalties for lifetime registration with
potential for lifetime imprisonment were manifestly in excess of what was
needed to ensure compliance.” Appellant’s Brief at 10. We find no relief is
due.
We find the Superior Court’s recent decision in Commonwealth v.
McDonough, 96 A.3d 1067 (Pa. Super. 2014), controls our analysis. The
trial court opinion relies on and extensively cites McDonough in support of
6
While providing the citation for Williams, 832 A.2d 962, Appellant states
the case’s name as “Commonwealth v. Gommer.” Appellant’s Brief at 10.
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its denial of Appellant’s claim. Trial Ct. Op., 6/29/14, at 3-4. We note that
Appellant’s counsel, Deanna Lyn Fahringer, Esq. (“Counsel”), 7 is from the
same office as the defendant/appellant’s attorney in McDonough—the
Fayette County Public Defender’s Office. Counsel now raises issues identical
to those in McDonough—which this Court rejected. Despite the Fayette
County Public Defender Office’s involvement in the McDonough case and
the trial court’s discussion of McDonough, Counsel makes no mention of
that decision in the instant appellate brief. We remind Counsel that the
argument in an appellate brief shall include “discussion and citation of
authorities as are deemed pertinent.”8 See Pa.R.A.P. 2119(a).
We now review the McDonough decision. This Court summarized,
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[.] Section 9799.14 of SORNA establishes a three-
tiered system of specifically enumerated offenses requiring
registration for sexual offenders for differing lengths of
time. Pursuant to section 9799.15(a)(1), a person
convicted of a Tier I offense . . . must register for 15
years. A Tier II offender must register for 25 years, while
a Tier III offender must register for the remainder of his or
her life. 42 Pa.C.S. § 9799.15(a)(2), (a)(3).
7
Counsel represented Appellant at the plea hearing as well.
8
Although the defendant in McDonough sought allowance for appeal with
our Supreme Court on July 31, 2014, a Superior Court “decision remains
binding precedent as long as the decision had not been overturned by our
Supreme Court.” See In re S.T.S., 76 A.3d 24, 44 (Pa. Super. 2013),
appeal denied, 91 A.3d 163 (Pa. 2014).
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McDonough, 96 A.3d at 1070 (some citations omitted).
In McDonough, the defendant, who was not found to be a sexually
violent predator, was convicted of a “Tier I” offense and ordered to register
for fifteen years. Id. at 1068, 1070, 1071. On appeal, he argued “it is
unconstitutional and illegal to require an individual to register as a sex
offender for 15 years for a crime that carries a maximum penalty of only two
years in prison[ and] that the registration requirements of SORNA and its
predecessor statute, Megan’s Law,[ ]
are not civil in nature because they
impose restrictions and requirements which, if violated, can result in
imprisonment.” Id. at 1070. The defendant also relied on Williams, 832
A.2d 962, “to support his argument that requiring an individual to register
for many years longer than the maximum penalty of the crime itself is
excessive and the registration provisions should be struck down as
unconstitutional punishment under the state and federal constitutions.”
McDonough, 96 A.3d at 1070.
This Court disagreed. We first noted,
In Williams, our Supreme Court was asked to decide
whether certain provisions of Megan’s Law II were
constitutional as it applied to sexually violent predators
(SVP’s). The Williams Court specifically held that the
registration, notification, and counseling provisions of
Megan’s Law II, to offenders deemed to be SVP’s, were
non-punitive, regulatory measures supporting a legitimate
governmental purpose. However, the 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.
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McDonough, 96 A.3d at 1070-71 (citations omitted). This Court then
considered the Pennsylvania Supreme Court’s discussion in Commonwealth
v. Gaffney, 733 A.2d 616 (Pa. 1999):
Because we do not view the registration requirements as
punitive but, rather, remedial, we do 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.
McDonough, 96 A.3d at 1071 (quoting Gaffney, 733 A.2d at 622). The
McDonough court also referred to Commonwealth v. Benner, 853 A.2d
1068 (Pa. Super. 2004):
The registration provisions of Megan’s Law do not
constitute criminal punishment. The 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.
* * *
Because the registration requirements under Megan’s Law
impose only collateral consequences of the actual
sentence, their application is not limited by the factors that
control the imposition of sentence. T hus, while a
defendant may be subject to conviction only under
statutes in effect on the date of his acts, and sentence
configuration under the guidelines in effect on that same
date, the application of the registration requirements
under Megan’s Law is not so limited. This is so due to the
collateral nature of the registration requirement.
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McDonough, 96 A.3d at 1071 (quoting Benner, 853 A.2d at 1070-71).
The McDonough Court then held: “While Gaffney and Benner were
decided prior to the effective date of SORNA, the same principles behind the
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.” McDonough, 96 A.3d at
1071. The court thus rejected the defendant’s claim that SORNA was
unconstitutional. Id.
As stated above, Appellant advances identical arguments in the case
sub judice. We agree with the trial court that find McDonough is directly on
point. Accordingly, we find no relief due on this claim.
Appellant’s second claim on appeal is that his sentence of six to twenty
years’ imprisonment was excessive. The sole legal authority cited is as
follows: “The general principle underlying the imposition of sentence calls for
the balancing of public protection, the gravity of the offense and,
particularly, the rehabilitative needs of the defendant. 42 Pa.C.S. §
9721(b); Commonwealth v. Ennis, 574 A.2d 1116 (Pa. Super. 1990).”
Appellant’s Brief at 10. Appellant maintains that he “came forward and
admitted the crimes for which he was charged,” explained to police that the
victim asked him “for a ‘blow-job’ because [the victim] wanted to see what it
felt like,” he performed the sexual act on the victim but stopped when the
victim told him to stop, he immediately felt remorse, and he had no prior
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criminal record. Id. at 10-11. We find no relief is due.
Appellant’s claim goes to the discretionary aspects of his sentence.9
“The right to appeal the discretionary aspects of a sentence is not absolute.”
Shugars, 895 A.2d at 1274. “[I]ssues challenging the discretionary aspects
of a sentence must be raised in a post-sentence motion or by presenting the
claim to the trial court during the sentencing proceedings.” Id. (citation
omitted). In addition,
“[a]n appellant must, pursuant to Pennsylvania Rule of
Appellate Procedure 2119(f), articulate ‘the manner in
which the sentence violates either a specific provision of
the sentencing scheme set forth in the Sentencing Code or
a particular fundamental norm underlying the sentencing
process.’” We examine an appellant’s Rule 2119(f)
statement to determine whether a substantial question
exists.
Id. (citations omitted). Finally, a “claim that the sentencing court
disregarded rehabilitation and the nature and circumstances of the
offense . . . presents a substantial question for our review.”
Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa. Super. 2013), appeal
denied, 91 A.3d 161 (Pa. 2014).
In the case sub judice, Appellant has preserved his claim for appeal, as
9
“[A] guilty plea which includes sentence negotiation ordinarily precludes a
defendant from contesting the validity of his . . . sentence other than to
argue that the sentence is illegal or that the sentencing court did not have
jurisdiction[.]” Commonwealth v. Shugars, 895 A.2d 1270, 1274 n.5 (Pa.
Super. 2006) (citation omitted). However, when a defendant enters an open
plea agreement, he “will not be precluded from appealing the discretionary
aspects of the sentence.” Id. In the instant case, Appellant entered an open
guilty plea with no agreement as to sentence.
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he had argued in his post-sentence motion that his sentence was excessive
and “a lighter sentence would be sufficient for any rehabilitative needs.”
See Appellant’s Post-Sentence Mot. at ¶¶ 3-4. Counsel, however, has not
included a separate Rule 2119(f) statement in the appellate brief.
Nevertheless, because the Commonwealth has not objected to this
deficiency and we may discern the gist of Appellant’s claim, we decline to
find waiver on the lack of a 2119(f) statement.10 See Shugars, 895 A.2d at
1274. Finally, Appellant’s claim, that the court did not properly consider the
circumstances of this case and his rehabilitative needs, presents a
substantial question invoking our review. See Dodge, 77 A.3d at 1273.
“Having concluded that Appellant has posited substantial questions for
our review, we proceed to examine the merits of his sentencing challenges.
‘In reviewing a challenge to the discretionary aspects of sentencing, we
evaluate the court's decision under an abuse of discretion standard.’” Id.
(citation omitted).
At the plea hearing, the Commonwealth alleged that Appellant
“performed oral sex on the child who . . . was 11,” “off of Main Street . . .
under the bridge by the Catholic War Veterans.” N.T. Plea Proceedings,
10
“[W]e disapprove of Appellant's failure to indicate where his sentences fell
in the sentencing guidelines and what provision of the sentencing code was
violated.” Dodge, 77 A.3d at 1271. However, again because the
Commonwealth has not objected to the adequacy of Appellant’s argument,
we decline to find waiver on this defect. See id.
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4/8/14, at 5. Appellant agreed with this recitation. Id. In its opinion, the
trial court stated it
considered, at sentencing, the nature of the offenses, the
number of offenses to which Appellant entered pleas of
guilty, the pre-sentence report prepared . . . Appellant’s
rehabilitative needs and the gravity of the offenses. [It]
also stated on the record that [it] believed that a lesser
sentence would depreciate the seriousness of these crimes
and that Appellant was in need of correctional treatment
that can be provided most effectively by his commitment
to an institution.
Trial Ct. Op. at 5 (citing N.T. Sentencing, 7/1/14, at 6).
A review of the sentencing transcript supports the trial court’s
reasoning. At the sentencing hearing, Attorney Fahringer requested as
sentence in the mitigated range, arguing Appellant had no prior record
score, did not employ force in the underlying offense, “was very cooperative
with [police] and admitted to the alleged offense.” N.T. Sentencing, 7/1/14,
at 2-3. The trial court responded that its sentence, of six to twenty years’
imprisonment, was “at the top of the mitigated range[ but] also the bottom
of the standard range.” Id. at 3. These statements indicate the court’s
awareness and consideration of the factors Appellant now advances on
appeal. Accordingly, we find no relief due on his claim and do not find the
trial court abused its discretion in imposing the sentence of six to twenty
years for Appellant’s rape of a child conviction.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/2014
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