Commonwealth v. LeonardCommonwealth v. Leonard
MaryJean Glick, Public Defender, Lancaster, for appellant.
Janie A. Swinehart, Assistant District Attorney, Lancaster, for Commonwealth, appellee.
BEFORE: DUBOW, RANSOM, and STRASSBURGER, JJ.*
Appellant, Michael Vincent Leonard, appeals from the judgment of sentence of two and one-half to ten years of incarceration, imposed July 21, 2016, following a negotiated guilty plea resulting in his conviction for one count of distribution of child pornography, seven counts of possession of child pornography, and two counts of criminal use of a communication facility.1 Appellant was required to register as a lifetime offender pursuant to the Sexual Offender Registration and Notification Act (SORNA),
* Retired Senior Judge assigned to the Superior Court.
At
SORNA requires that defendants convicted of certain sexual offenses register with the Pennsylvania State Police and contains a three-tiered system for classifying offenses and their corresponding registration periods. See, e.g., Commonwealth v. Lutz-Morrison, 143 A.3d 891, 892 (Pa. 2016) (citing
On August 15, 2016, the Pennsylvania Supreme Court decided A.S., holding that Megan’s Law requires an act, a conviction, and a subsequent act to trigger the lifetime registration for multiple offenses otherwise subject to ten-year registration. See A.S., 143 A.3d at 908. At the same time, the Supreme Court decided Lutz-Morrison, holding that SORNA requires an act, a conviction, and a subsequent act to trigger lifetime registration for multiple offenses otherwise subject to fifteen- or twenty-five-year periods of registration. Lutz-Morrison, 143 A.3d at 895, 898 (holding that defendant’s guilty plea to multiple counts of child pornography at the same time did not trigger lifetime registration).
On August 19, 2016, Appellant timely filed a notice of appeal to this Court. Appellant filed a court-ordered
On appeal, Appellant raises a single issue for our review:
I. Where [Appellant] was convicted on the same date of one count of distribution of child pornography, a violation of
18 Pa.C.S. § 6312(c) , and seven counts of possession of child pornography, violations of18 Pa.C.S. § 6312(d) , and all offenses involved a single course of conduct and were docketed to the same information number, should he have been sentenced to 25 years of sex offender registration pursuant to42 Pa.C.S. §§ 9799.14 and9799.15 , rather than lifetime registration?
Appellant’s Brief at 4.
We note that this is a pure question of law, and therefore, our standard of review is de novo, and our scope of review is plenary. See Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa. Super. 2014), appeal dismissed, 145 A.3d 727 (Pa. 2016).
As discussed above, in Lutz-Morrison, the Pennsylvania Supreme Court clarified that
The Commonwealth, while conceding that Appellant should be reclassified as a Tier II offender with twenty-five-year registration, nevertheless contends that Appellant has erred procedurally by filing his appeal in this Court. See Appellee’s Brief at 5-10. The Commonwealth employs a tortured argument to claim that 1) Appellant is not contesting the statutory construction of SORNA, but is instead arguing he has been incorrectly classified under SORNA; 2) Appellant’s registration requirement is a collateral matter administratively managed by the Pennsylvania State Police; 3) Appellant failed to join the Pennsylvania State Police as an indispensable party; 4) Appellant incorrectly filed the instant appeal in this Court as opposed to the Commonwealth Court of Pennsylvania. See Appellant’s Brief at 5-10. In so arguing, the Commonwealth relies upon Commonwealth v. Demora, 149 A.3d 330 (Pa. Super. 2016), where a prior panel of this Court held that an appellant’s failure to join the Pennsylvania State Police (PSP) as an indispensable party resulted in a lack of jurisdiction in the Court of Common Pleas. Demora, 149 A.3d at 333.
Demora is distinguishable from the instant matter. In Demora, the defendant’s guilty plea to one count of indecent assault subjected him to a ten-year reporting requirement under Megan’s Law I. See Demora, 149 A.3d at 331. After serving his sentence, the defendant began reporting to the PSP under Megan’s Law II. Id. In December 2012, the PSP notified the defendant that pursuant to SORNA he was required to register as a Tier III offender and was subject to the lifetime reporting requirement. Id. The defendant filed a petition seeking a determination that he was not subject to the reporting requirements. Id. The trial court concluded that the defendant had not established that the registration requirement was a material term of his plea and denied the petition. Id.
On appeal, this Court concluded that the trial court lacked jurisdiction to entertain the defendant’s petition, as the PSP had not been named as a defendant. Demora, 149 A.3d at 331. We noted that the defendant was no longer serving any part of his sentence, nor had the District Attorney’s Office taken an action against him. Id. at 332. It was the PSP’s action requiring the defendant to register and report under SORNA to which he objected, and thus, the PSP was an indispensable party. Id. We noted that the appropriate form of action for the relief sought by that defendant was a petition sounding in declaratory and injunctive relief against the PSP.
Initially, we note that Appellant is currently serving a sentence. He timely filed a direct appeal within the appropriate period. He has not yet registered to report to the PSP, as he has not yet been released from custody. Further, Appellant challenges the requirement imposed by the trial court that he register as a sex offender for life based upon the court’s interpretation of SORNA’s requirements. This case is properly before this Court, as was
Therefore, we vacate Appellant’s judgment of sentence in part, as to his classification as a Tier III offender, and remand for the trial court to impose a twenty-five-year registration requirement under Section 9799.15(a)(2). In all other respects, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed in part, and vacated in part. Case remanded for proceedings consistent with this decision. Jurisdiction relinquished.