Com. v. Elattar, N.

• Court: Superior Court of Pennsylvania
• Decided: June 10, 2019
• Docket: 1579 WDA 2018
• Status: Unpublished

Opinion

J-S27033-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NABIL ELATTAR, JR. : : Appellant : No. 1579 WDA 2018

Appeal from the Judgment of Sentence Entered April 30, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0010272-2017

BEFORE: OLSON, J., OTT, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.: FILED JUNE 10, 2019

Appellant, Nabil Elattar, Jr., appeals from the judgment of sentence

following his guilty plea to Possession of Child Pornography.1 Specifically,

Appellant challenges the 15-year period of sex offender registration imposed

upon him as a result of his conviction pursuant to the Sex Offender

Registration and Notification Act (SORNA).2 We affirm.

The following factual background appears in the affidavit of probable

cause in the criminal complaint, which Appellant stipulated to as the factual

predicate of his guilty plea. On September 6, 2016, a Skype user with the

username “luvyungboysngirls” uploaded an image of child pornography, which

Skype reported to the National Center for Missing and Exploited Children’s

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1 18 Pa.C.S. § 6312(d). 2 42 Pa.C.S. §§ 9799.10-9799.42.

* Retired Senior Judge assigned to the Superior Court. J-S27033-19

(NCMEC) cyber tip line. This tip was directed to Detective Lynn Havelka of

the Allegheny County District Attorney Investigations Unit who was assigned

to the Federal Bureau of Investigation’s Violent Crimes Against Children Task

Force. Detective Havelka determined that Verizon Fios was the internet

service provider for the internet protocol address associated with the

September 6, 2016 image upload. On October, 14, 2016, Detective Havelka

obtained a court order for the subscriber information; Verizon Fios responded

on October 20, 2016 with the subscriber information as Mr. El Attar at an

address in Ingram, Pennsylvania.

On November 23, 2016, Detective Havelka and agents working with the

Task Force executed a search warrant for the Ingram address, where

Appellant resided with his father and brother. Appellant agreed to speak with

the agents and admitted that he had been looking at images of child

pornography for the previous year. Appellant further admitted that he

uploaded images of child pornography on Skype using the “luvyungboysngirls”

username, including the image that Skype had reported to the NCMEC cyber

tip line, and that he communicated with underage boys online. Appellant also

informed the agents who executed the search warrant that he saved images

of child pornography on his computer hard drive. A forensic examination of

the hard drive revealed 487 images of child pornography, 16 of which were

determined to be of known, identified victims.

On June 19, 2017, Appellant was charged with one count of Possession

of Child Pornography and one count of Criminal Use of Communication

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Facility.3 On February 5, 2018, Appellant pleaded guilty to the Possession of

Child Pornography, and the Commonwealth withdrew the Criminal Use of

Communication Facility count. N.T., 2/5/18, at 2-9. On April 30, 2018, the

trial court sentenced Appellant to five years of probation and informed him of

his responsibility to register under SORNA for 15 years as a Tier I sex offender.

Sentencing Order, 4/30/18; N.T., 4/30/18, at 12-16. Appellant filed a post-

sentence motion on May 9, 2018, which was denied by operation of law on

October 1, 2018 pursuant to Pa.R.Crim.P. 720(B)(3)(a). Appellant thereafter

filed a timely notice of appeal.4

Appellant presents the following question for our review:

Did the court err in imposing the registration, notification and counseling requirements under SORNA for a period of fifteen years, which exceeds the statutory maximum penalty for Possessing Child Pornography, a Felony 3 offense under 18 Pa.C.S. §6312(D)?

Appellant’s Brief at 4 (suggested answer and duplicative question omitted).

Appellant argues that his 15-year SORNA registration requirement,

which was determined to constitute direct criminal punishment in

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), exceeds the lawful

statutory maximum of 7 years for the third-degree felony for which he was

3 18 Pa.C.S. §§ 6312(d) and 7512(a), respectively. 4Appellant filed his statement of errors complained of on appeal on November 21, 2018. The trial court entered its opinion on December 4, 2018.

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convicted.5 See 18 Pa.C.S. § 1103(3) (maximum term of imprisonment of 7

years for conviction of felony of third degree); 18 Pa.C.S. § 6312(d.1)(2)(i)

(except in circumstances not applicable here, a first offense under 18 Pa.C.S.

§ 6312(d) is a felony of the third degree); Sentencing Order, 4/30/18. This

argument is a challenge to the legality of his sentence. See Commonwealth

v. Succi, 173 A.3d 269, 285 (Pa. Super. 2017) (“Legality of sentence issues

occur…when the sentence imposed is patently inconsistent with the sentencing

parameter set forth by the General Assembly.”). “When reviewing the legality

of a sentence, our standard of review is de novo and our scope of review is

plenary.” Commonwealth v. Seskey, 170 A.3d 1105, 1107 (Pa. Super.

2017). Where a sentence is found to be illegal, it must be vacated.

Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super. 2014).

This Court recently addressed this issue in Commonwealth v.

Strafford, 194 A.3d 168 (Pa. Super. 2018). In Strafford, the appellant was

subjected to lifetime registration as a Tier III offender under SORNA, and the

appellant argued on appeal that the lifetime period of registration exceeded

the statutory maximum sentences applicable to his convictions. Id. at 171-

72. This Court began its analysis by observing that, under Muniz, SORNA

5 We note that, while Appellant correctly stated in his statement of questions presented that he was convicted of a third-degree felony carrying a maximum statutory punishment of seven years, he also erroneously asserts in his brief that he was convicted of a second-degree misdemeanor as to which the greatest possible punishment would be two years. See Appellant’s Brief at 8; 18 Pa.C.S. § 1104(2).

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registration requirements are deemed to be punitive and the general principle

that the General Assembly “has the exclusive power to pronounce which acts

are crimes, to define crimes, and to fix punishment for all crimes.” Id. at 172

(quoting Commonwealth v. Eisenberg, 98 A.2d 1268, 1283 (Pa. 2014)).

We further noted that the maximum authorized sentence of imprisonment for

a felony is set forth in Section 1103 of the Crimes Code and by separate

statute, the legislature had fixed the maximum sentence of probation not to

exceed the maximum term for which a defendant could be confined. Id.

(citing 18 Pa.C.S. § 1103 and 42 Pa.C.S. § 9754(a)).

However, we further noted in Strafford that not all “categories of

punishment are…limited by the maximum period of incarceration,” and the

legislature set forth different statutory limits with respect to fines or restitution

that may be imposed at sentencing. Id. at 172-73. With respect to SORNA’s

punishment scheme, we stated:

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 [a defendant]’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.

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Id. at 173. We accordingly concluded that the lifetime registration

requirement imposed on the appellant in Strafford did not constitute an illegal

sentence. Id.; see also Commonwealth v. Prieto, ___ A.3d ___, 2019 PA

Super 79, *10-*11 (filed March 18, 2019); Commonwealth v. Martin, ___

A.3d ___, 2019 PA Super 69, *6-*11 (filed March 7, 2019); Commonwealth

v. Bricker, 198 A.3d 371, 376-77 (Pa. Super. 2018).

The analysis and holding of Strafford are equally applicable here.

Though Appellant was convicted of a third-degree felony with a maximum

statutory sentence of seven years for imprisonment and probation, Appellant’s

15-year SORNA registration period is “an authorized punitive measure

separate and apart from” the term of probation imposed upon Appellant, and

not limited by the maximum allowable term of incarceration for a third-degree

felony under Section 1103. 194 A.3d at 173.

Appellant further argues that the trial court lacked authority to impose

a 15-year registration period because SORNA, even after 2018 amendments

to address the Muniz decision,6 provides that the statute “shall not be ____________________________________________

6 Act of February 21, 2018, P.L. 27, No. 10 (“Act 10”). With Act 10, and the subsequent enactment of Act 29 of 2018, Act of June 12, 2018, P.L. 140, No. 29, the General Assembly sought, in part, to address the Muniz decision by modifying the provisions of SORNA, contained in Subchapter H of the Sentencing Code, to make them applicable only to offenses committed after SORNA’s effective date of December 20, 2012. 42 Pa.C.S. § 9799.11(c). In addition, the General Assembly added Subchapter I to the Sentencing Code, 42 Pa.C.S. §§ 9799.51-9799.75, setting forth the registration requirements applicable to offenders convicted of sex offenses after Megan’s Law I went into effect on April 22, 1996 but prior to the effective date of SORNA. 42 Pa.C.S.

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construed as punitive.” 42 Pa.C.S. § 9799.11(b)(2). Appellant contends that,

in addition to the lack of authorization in SORNA, the trial court also lacks

authority to impose a sex offender registration period under other provisions

in the Sentencing Code or in the Crimes Code. Appellant additionally argues

that any attempt by the legislature to impose a punishment of mandatory

registration through SORNA encroaches on the judicial power in violation of

separation of powers principles inherent in the Pennsylvania Constitution.

Appellant asserts that the 15-year registration period was thus an illegal

sentence because the trial court had no statutory authority to mandate

registration and the legislature was not permitted to impose such a

punishment unilaterally.

Appellant’s arguments lack merit. Initially, we observe that the fact that

the current version of SORNA states that it was enacted for a non-punitive

purpose has no bearing on whether the statute is in fact punitive; Muniz held

that SORNA was punitive in spite of this statutory language, applying the

constitutional framework of Kennedy v. Mendoza-Martinez, 372 U.S. 144

(1963). Muniz, 164 A.3d at 1208-18 (Opinion Announcing Judgment of the

§ 9799.52; see also Bricker, 198 A.3d at 375-76 (describing amendments). Appellant admits the criminal offense that he committed occurred after December 20, 2012, and therefore his registration requirements are governed by Subchapter H. Appellant’s Brief at 9. Furthermore, Appellant does not contest that he was properly subjected to a 15-year registration and reporting requirement under Subchapter H. See 42 Pa.C.S. § 9799.14(b)(9) (stating that 18 Pa.C.S. § 6312(d) is a Tier I offense); 42 Pa.C.S. § 9799.15(a)(1) (providing for 15 year registration period for Tier I sexual offenses).

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Court); see also id., 164 A.3d at 1232-33 (Wecht, J., concurring).

Furthermore, as this Court explained in Strafford, “SORNA’s registration

requirements are an authorized punitive measure separate and apart from

[the] term of incarceration” authorized in Chapter 11 of the Crimes Code. 194

A.3d at 173; see also Prieto, 2019 PA Super 79, *11; Martin, 2019 PA Super

69, *7; Bricker, 198 A.3d. at 377. Therefore, no other statutory

authorization was required for the imposition of SORNA registration

requirements on Appellant beyond SORNA itself.

Finally, with respect to Appellant’s separation of powers argument, in

Commonwealth v. Rhoads, 836 A.2d 159 (Pa. Super. 2003), this Court held

that Megan’s Law II did not usurp the Supreme Court’s authority under Article

V of the Pennsylvania Constitution to prescribe general rules governing the

practice, procedure and conduct of the courts because Megan’s Law II was

“substantive law and it does not set forth rules governing court practice or

procedure.” Id. at 163. Though Rhoads was decided with regard to an earlier

sex offender registration statute, the holding of Rhoads applies equally to

SORNA. Appellant has not demonstrated that SORNA exceeds the legislature’s

exclusive authority “to fix the punishment for all crimes,” Strafford, 194 A.3d

at 172, or that SORNA “deputize[s] judicial employees to perform duties more

properly reserved to another of the co-equal branches of government.”

Commonwealth v. Mockaitis, 834 A.2d 488, 500 (Pa.2003).

Based on the foregoing, Appellant is not entitled to relief.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/10/2019

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