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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.*

MEMORANDUM BY NICHOLS, J.:                                FILED JUNE 21, 2019

        Appellant Kyle Lee Wilson appeals from the judgment of sentence

imposed after he pled guilty to corruption of minors and unlawful contact with

a minor, and nolo contendere to indecent assault.1 Appellant claims that the

twenty-five-year registration requirement under the Sex Offender Registration

and Notification Act (SORNA)2 constitutes an illegal sentence.3 We conclude

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*   Retired Senior Judge assigned to the Superior Court.

118 Pa.C.S. §§ 6301(a)(1)(ii) (third-degree felony); 6318(a)(1) (third-
degree felony); and 3126(a)(1) (second-degree misdemeanor).

2   42 Pa.C.S. §§ 9799.10-9799.41 (subsequently amended Feb. 21, 2018).

3 In Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), our Supreme
Court held that the registration requirements of the former version of SORNA
were punitive. See also Commonwealth v. Butler, 173 A.3d 1212 (Pa.
Super. 2017) (stating that SORNA’s registration requirements are to be
considered part of a defendant’s sentence), appeal granted, 190 A.3d 581 (Pa.
2018).
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that this Court’s recent decision in Commonwealth v. Martin, 205 A.3d 1247

(Pa. Super. 2019), addresses all of Appellant’s arguments and affirm.

      The relevant facts giving rise to this appeal are well known to the

parties, and we need not restate them here. Briefly, we note that on October

17, 2017, Appellant entered his plea based on criminal conduct that occurred

between February 3, 2017 and February 5, 2017. On January 23, 2018, the

trial court sentenced Appellant to an aggregate term of three and a half to

seven years’ incarceration. Appellant was also designated a Tier II offender

under SORNA for unlawful contact with a minor and was ordered to report and

register for twenty-five years.

      On February 1, 2018, Appellant filed a timely motion to modify his

sentence challenging his SORNA registration requirement. On February 22,

2018, the trial court denied Appellant’s motion. Appellant filed a timely notice

of appeal on March 22, 2018. Both Appellant and the trial court subsequently

complied with Pa.R.A.P. 1925.

      Appellant presents the following questions for our review:

         1. Is [Appellant’s] sentence of twenty-five (25) years of
            punishment pursuant to SORNA illegal as SORNA is not a
            sentencing alternative authorized by Section 9721 of the
            Judicial Code and the trial court therefore lacked
            authority to impose such sentence?

         2. Is [Appellant’s] sentence of twenty-five (25) years of
            punishment pursuant to SORNA illegal as the statutory
            maximum for a felony of the third degree as codified at
            Section 1103(2) of the Crimes Code is seven (7) years?

         3. Is [Appellant’s] sentence of twenty-five (25) years of
            punishment pursuant to SORNA a violation of both the

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              Sixth and Fourteenth Amendments to the United States
              Constitution as the penalty imposed was increased
              beyond the prescribed statutory maximum based upon
              the General Assembly’s factual determination that
              [Appellant] “pose[s] a high risk of committing additional
              sexual offenses,” 42 Pa.C.S. § 9799.11(a)(4), a fact that
              was not submitted to the jury nor proven beyond a
              reasonable doubt as required by Apprendi v. New
              Jersey, 530 U.S. 466 (2000)?

Appellant’s Brief at 6.

       In Martin, this Court recently concluded that a fifteen-year SORNA

registration requirement did not constitute an illegal sentence. Martin, 205

A.3d at 1252. Relying on our prior decisions in Commonwealth v. Strafford,

194 A.3d 168 (Pa. Super. 2018),4 and Commonwealth v. Bricker, 198 A.3d

371 (Pa. Super. 2018), we explained that SORNA’s registration requirements

are not governed by the statutory maximum sentences set forth in Chapter

11 of the Crimes Code. Martin, 205 A.3d at 1250. Furthermore, we held that

____________________________________________


4 Although Appellant asserts that this Court’s holding in Strafford was
incorrectly decided, we are bound by existing precedent until such time it is
overturned. See Commonwealth v. Reed, 107 A.3d 137, 143 (Pa. Super.
2014).

Further, we note the Chester County Court of Common Pleas has held that
SORNA was unconstitutional. On July 13, 2018, the Commonwealth filed an
appeal with the Pennsylvania Supreme Court challenging the Chester County
trial court’s decision. See Commonwealth v. Torsilieri, 37 MAP 2018 (Pa.
2018).     On September 10, 2018, our Supreme Court noted probable
jurisdiction, and the parties are currently briefing the matter. Because the
Supreme Court has yet to issue a decision in Torsilieri, and because we are
not bound by decisions from the Court of Common Pleas, we remain obligated
to follow the existing, controlling case law. See Keller v. Mey, 67 A.3d 1, 5
n.6 (Pa. Super. 2013) (stating that the “Superior Court is not bound by
decisions of the Court of Common Pleas and is free to reach contrary holdings”
(citation omitted)); see also Reed, 107 A.3d at 143.

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SORNA independently authorized the registration of sexual offenders, even

though 42 Pa.C.S. § 9721 does not include registration as a sentencing

alternative. Id. at 1251.

      The Martin Court also addressed an argument that the tier-based

registration periods violated Apprendi. The Court reasoned that a conviction

of a sexual offense determined the applicable registration period.     Martin,

205 A.3d at 1252. Therefore, the imposition of a registration period did not

require additional factual findings by a trial court. Id.; see Commonwealth

v. Golson, 189 A.3d 994, 1003 (Pa. Super. 2018) (directing “trial courts to

apply only the applicable tier-based registration period, as those periods apply

based on the conviction itself, and not due to any additional fact not found,

under SORNA’s procedures, by the fact-finder”).       Accordingly, even if the

imposition of a registration period increased the range of punishment faced

by a defendant, SORNA’s procedures did not violate Apprendi. Martin, 205

A.3d at 1252.

      Here, the trial court classified Appellant as a Tier II offender based on

his conviction for unlawful contact with a minor. Pursuant to Martin, the court

was authorized to impose a twenty-five year registration requirement as part

of Appellant’s sentence. See Martin, 205 A.3d at 1251. In so doing, the

court was not limited by the statutory maximum established for the underlying

offense. See id. Lastly, Appellant’s registration requirement was properly

based on his underlying conviction and not an additional fact not found by a

fact-finder. See id. at 1252; Golson, 189 A.3d at 1003.

                                     -4-
J-A06026-19



     Commonwealth’s       Application    for   Post-Submission   Communication

granted. Judgment of sentence affirmed.

     Judge Ott joins in the memorandum.

     Judge Pellegrini files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/21/2019




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