Com. v. Forbes, M.

• Court: Superior Court of Pennsylvania
• Decided: January 19, 2023
• Docket: 1535 EDA 2022
• Status: Unpublished

Opinion

J-S38043-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : MICHAEL R. FORBES : : Appellant : No. 1535 EDA 2022

Appeal from the Judgment of Sentence Entered January 24, 2022, in the Court of Common Pleas of Montgomery County, Criminal Division at No(s): CP-46-CR-0002520-2020.

BEFORE: KUNSELMAN, J., MURRAY, J., and SULLIVAN, J.

JUDGMENT ORDER BY KUNSELMAN, J.: FILED JANUARY 19, 2023

Michael R. Forbes appeals from the judgment of sentence of five to ten

years’ incarceration imposed after Forbes pleaded guilty to failure to register

with the Pennsylvania State Police as a sexual offender.1 Because the parties

agree that his sentence is illegal, we vacate and remand.

Forbes served 35 years in prison for sexual offenses. Afterwards, in

2018, he pleaded guilty to failing to verify his address under SORNA. Forbes

served 23 months’ incarceration for that offense and started parole in March

of 2020. He became homeless. Two months later, he suffered a stroke and

entered the hospital. While there, police arrested him for failing to register as

a sexual offender. Forbes pleaded guilty, and the court sentenced him to the

mandatory minimum stated above. This timely appeal followed.

____________________________________________

1 See 18 Pa.C.S.A. § 4915.1(a),(c)(2). J-S38043-22

Forbes raises one issue on appeal: whether the mandatory-minimum

sentence of five to ten years is illegal, because “such punishment was grossly

disproportional to the conduct being punished” in violation of the Eighth

Amendment to the Constitution of the United States. Forbes’ Brief at 3.

He contends that the sentence, which the sentencing statutes required

the court to impose, is unconstitutional as applied to him. In Forbes’ view,

five to ten years is a cruel and unusual punishment for a man of his age (66

years old), who committed his underlying crimes in the early 1980s, and who

could not register due to homelessness and suffering from physical illness,

including a stroke.

In response, the Commonwealth contends that the issue that Forbes has

framed does not attack the legality of his sentence. Instead, it argues he truly

challenges the discretionary aspects of his sentence, and Forbes waived that

issue for various reasons. See Commonwealth’s Brief at 9-14 (citing Pa.R.A.P.

2119(f)). Nevertheless, the Commonwealth agrees with Forbes that appellate

relief is due, because the mandatory minimum of five to ten rested upon a

SORNA statute that this Court has declared unconstitutional. See 42

Pa.C.S.A. § 9718.4 (held unconstitutional in Commonwealth v. Blakney,

152 A.3d 1053 (Pa. Super. 2016)).

In Blakney, we determined that sentencing someone “to a mandatory

term of five to ten years’ incarceration pursuant to 42 Pa.C.S.A. §

9718.4(a)(2)(i)” violated a defendant’s constitutional rights. Id., 152 A.3d at

1053–54 (Pa. Super. 2016). We stated, “the ‘proof at sentencing’ provision

-2- J-S38043-22

set forth in section 9718.4(b) violates the rule announced in Alleyne [v.]

United States, 570 U.S. 99 (2013)], and that it is not severable from the

remainder of the statute.” Blakney, 152 A.3d at 1056. Hence, this Court

declared the entire statute unconstitutional.

Because the parties agree that Forbes’ sentence is illegal (albeit for

different reasons), they both ask that the sentence be vacated. Thus, we

grant the requested relief.

Judgment of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/19/2023

-3-