Com. v. Frye, A.

• Court: Superior Court of Pennsylvania
• Decided: August 11, 2014
• Docket: 552 WDA 2014
• Status: Unpublished

Opinion

J-S50044-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ALEXANDER LEWIS FRYE,

Appellant No. 552 WDA 2014

Appeal from the Judgment of Sentence entered March 21, 2014, in the Court of Common Pleas of Fayette County, Criminal Division, at No(s): CP-26-CR-0001945-2012 and CP-26-CR-0001946-2012

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.: FILED AUGUST 11, 2014

sentence imposed after he pled guilty to one count of aggravated indecent

assault at Docket No. 1945-2012 and one count of aggravated indecent

assault at Docket No. 1946-2012.1 Relevant to this appeal, the trial court

ordered Appellant to lifetime registration as a sex offender pursuant to the

newly enacted registration requirements of Pennsylvania's Sex Offender

See 42 Pa.C.S.A. §§ 9799.14,

9799.15. Upon review, we affirm.

The pertinent procedural history may be summarized as follows: On

November 14, 2012, the Commonwealth filed an information charging ____________________________________________

1 See 18 Pa.C.S.A. § 3125. J-S50044-14

Appellant at Docket No. 1945-2012 with three counts of aggravated indecent

assault of a child, three counts of sexual assault, three counts of aggravated

indecent assault of a person less than 13 years of age, three counts of

indecent assault of a person less than 13 years of age, three counts of

unlawful contact with a minor, and three counts of corruption of minors.2 At

Docket No. 1946-2012, the Commonwealth charged Appellant with one

count of aggravated indecent assault of a child, intimidation of witnesses or

victims, unlawful contact with a minor, sexual assault, aggravated indecent

assault of a person less than 13 years of age, corruption of minors, and

indecent assault of a person less than 13 years of age.3

On January 6, 2014, Appellant entered guilty pleas to one count of

aggravated indecent assault at Docket No. 1945-2012, and one count of

aggravated indecent assault at Docket No. 1946 -2012. That same day, the

trial court ordered an assessment of Appellant from the Sexual Offender

Assessment Board in accordance with 42 Pa.C.S.A. § 9791.

On March 21, 2014, the trial court conducted a sexual offender

assessment hearing after which it deemed Appellant to be a sexually violent

predator. The trial court proceeded to sentence Appellant to concurrent

____________________________________________

2 18 Pa.C.S.A. §§ 3125(b), 3124.1, 3125(a)(7), 3126(a)(7), 6318(a)(1), and 6301(a)(1)(ii). 3 18 Pa.C.S.A. §§ 3125(b), 4952(a)(1), 6318(a)(1), 3124.1, 3125(a)(7), 6301(a)(1)(ii) and 3126(a)(7).

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sentences of 6½ to 20 years of imprisonment. The trial court also directed

Appellant to comply with a lifetime registration requirement as a Tier III sex

offender pursuant to the new registration requirements of SORNA. Appellant

filed a timely post-sentence motion on March 27, 2014, asserting that his

sentence was excessive, and that the lifetime registration requirement under

March 31, 2014. This appeal followed. Appellant filed a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal, and on June 2, 2014, the trial

Appellant presents two issues for our review:

1. IS IT UNCONSTITUTIONAL TO REQUIRE AN APPELLANT TO REGISTER FOR A LIFETIME FOR A CRIME THAT CARRIES A MAXIMUM PENALTY IN THE INSTANT CASE OF TWENTY YEARS?

2. IS THE ADAM WALSH STATUTE [SORNA] UNCONSTITUTIONAL IN REQUIRING APPELLANT TO REGISTER FOR A LIFETIME FOR SAID CRIME?

Preliminarily, we note that in its Statement in Lieu of Opinion, the trial

because Appellant failed

to raise them during the sexual offender assessment hearing, at sentencing,

or in his post-sentence motion. Our review of the record reveals, however,

that in his written post-

lifetime registration is unconstitutional in requiring this appellant to register

for a lifetime when said registration requirement exceeds the statutory

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-Sentence Motion for

Modification of Sentence, 3/27/14.

preserved for our review.

together. Appellant argues that the lifetime registration requirement of

d by the Pennsylvania and

-

SORNA is unconstitutional comprises three pages of his brief, with no

reference to the precise Constitutional provisions on which he bases his

assertion, or any reference to the applicable statutory section of SORNA

containing the contested registration requirement.

When an appellant challenges the constitutionality of a statute, the appellant presents this Court with a question of law. Our consideration of questions of law is plenary. A statute is presumed to be constitutional and will not be declared unconstitutional unless it clearly, palpably, and plainly violates the constitution. Thus, the party challenging the constitutionality of a statute has a heavy burden of persuasion.

Commonwealth v. Howe, 842 A.2d 436, 441 (Pa. Super. 2004) (citations

omitted).

r

Eighth Amendment of the United States Constitution, and Article 1, Section

13 of the Pennsylvania Constitution. See Commonwealth v. Baker, 24

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A.3d 1006, 1026, n. 20 (Pa. Super. 2011

Pennsylvania Constitution provides no greater protection against cruel and

see also

Commonwealth v. Elia, 83 A.3d 254, 267 (Pa. Super. 2013).

Recently, in Commonwealth v. Perez, --- A.3d ----, 2014 WL

3339161 (Pa. Super. July 9, 2014), we addressed whether SORNA was

state constitutions. We held in Perez that the effects of SORNA were not

Id. at 11; 42 Pa.C.S.A. § 9799.11(b)(2).

Given our determination in Perez that any SORNA constraints are

requirements of SORNA constitute cruel and unusual punishment is without

merit.4

4 See e.g. McCarty v. Roos, 2014 WL 551543 (D. Nev. Feb. 10, 2014) (citations omitted) (explaining that the federal SORNA cannot violate rights implicated by the criminal justice system, such as double jeopardy and cruel and unusual punishment, because it is a civil regulatory scheme); Spiteri v. Russo, 2013 WL 4806960 (E.D.N.Y. Sept. 7, 2013) (sex offender classifications under SORNA could not constitute cruel and unusual punishment for the same reasons that SORNA was found not to violate the Ex Post Facto Clause, i.e. because the registration requirement is not punitive); United States v. Davis, 352 F. App'x 270, 272 (10th Cir. 2009) (Footnote Continued Next Page)

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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/11/2014

_______________________ (Footnote Continued)

(holding that registration of convicted sex offenders under SORNA does not nt's prohibition on cruel and unusual

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