J-S55021-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT WILLIAM KEECH : : Appellant : No. 371 WDA 2019
Appeal from the Judgment of Sentence Entered November 19, 2018 In the Court of Common Pleas of Elk County Criminal Division at No(s): CP-24-CR-0000216-2017
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 06, 2020
Robert William Keech appeals from the judgment of sentence imposed
following his guilty pleas to corruption of minors and indecent assault. 1 Keech
argues the court erred in notifying him he would be required to register as a
Tier III sexual offender under the Sex Offender Registration and Notification
Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10-9799.75. We vacate Keech’s
judgment of sentence in part and remand for resentencing.
A criminal information alleged Keech had inappropriate sexual contact
with his granddaughter on five occasions between January and March of 2017.
See N.T. (guilty plea), 7/12/18, at 3-4, 7-8. Keech entered open guilty pleas
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 6301(a)(1)(ii) and 3126(a)((8), respectively. J-S55021-19
to one count of corruption of minors, as a third-degree felony, and one count
of indecent assault, as a second-degree misdemeanor. Id. at 13, 17-18.
The court sentenced Keech to an aggregate of six months to 2 years of
incarceration, followed by six years of probation. The court also notified Keech
of his registration requirements under SORNA. The court found that the
offense of corruption of minors was classified as a Tier I sexual offense, and
the offense of indecent assault was classified as a Tier II sexual offense. See
Trial Court Opinion, filed 3/9/19, at 1-2 (citing 42 Pa.C.S.A. §§ 9799.14(b)(8),
(c)(1.3)). The court notified Keech that because of these two convictions, he
would be required to register as a Tier III sexual offender under 42 Pa.C.S.A.
§ 9799.14(d)(16). See id. at 2; N.T. (sentencing), 11/15/18, at 4. This
section provides that “[t]wo or more convictions of offenses listed as Tier I or
Tier II sexual offenses” shall be classified as a Tier III sexual offense. 42
Pa.C.S.A. § 9799.14(d)(16).
Keech filed a motion for reconsideration, which the court denied. Keech
appealed, and raises the following:
Did the trial court err and/or abuse its discretion when it found [Keech] to be a Tier III SORNA Registrant where [Keech] did not meet the statutory criteria of a “sexually violent predator”, where the Indecent Assault charge to which [Keech] pled is a Tier II offense and where the Corruption of Minors charge to which [Keech] pled is a Tier I offense which both arouse out of the same incident and involved the same victim?
Keech’s Br. at 4.
-2- J-S55021-19
Keech argues that his guilty pleas to indecent assault and corruption of
minors do not constitute “two or more convictions” of Tier I/Tier II sexual
offenses under 42 Pa.C.S.A. § 9799.14(d)(16). Keech relies on
Commonwealth v. Lutz-Morrison, 143 A.3d 891 (Pa. 2016), which he
claims established that Section 9799.14(d)(16) “requires an act, a conviction,
and a subsequent act to trigger lifetime registration for multiple offenses.”
Keech’s Br. at 12 (quoting Lutz-Morrison, 143 A.3d at 895) (Keech’s
emphasis omitted). Keech argues that here, his convictions arose out of the
same incident, and did not qualify as a conviction and a subsequent act. Id.
at 15.
In its opinion, the trial court asserts Keech waived this issue by not
raising it at any time before the appeal, and presenting it for the first time in
his statement of errors complained of on appeal.2 Tr. Ct. Op. at 2. Keech does
not address waiver in his brief. The Commonwealth did not submit a brief, but
filed a letter directing this Court to the trial court’s opinion.
The issue is not waived. Keech alleges the trial court erroneously
increased his registration requirement under SORNA. Precedents have
determined that these requirements are punitive in nature and affect the
legality of a sentence, which is a non-waivable issue. See Commonwealth
v. Butler, 173 A.3d 1212, 1215 (Pa.Super. 2017); Commonwealth v.
Sauers, 159 A.3d 1, 16 (Pa.Super. 2017). We therefore review the issue,
2 See Pa.R.A.P. 1925(b).
-3- J-S55021-19
utilizing a plenary scope of review and a de novo standard of review. Butler,
173 A.3d at 1215.
We conclude Lutz-Morrison controls the outcome of this case. In Lutz-
Morrison, the defendant plead guilty to multiple counts of sexual abuse of
children (possession of child pornography),3 a Tier I sexual offense, after the
police seized four computers at his home. 143 A.3d at 893. The trial court
notified the defendant he would be subject to lifetime registration as a Tier III
offender under Section 9799.14(d)(16). Id. at 894.
The Supreme Court held that the trial court erred in considering the
defendant’s immediate offenses as “two or more convictions” for purposes of
Section 9799.14(d)(16). Id. The Court noted the defendant “was charged in
a single information arising from the search of his property; he entered court
as a first-time offender on those charges and pled guilty to three counts—all
Tier I offenses; and there were no direct victims of his crimes, much less
multiple direct victims.” Id. at 895. While the Court acknowledged that each
conviction constituted a separate, independent crime, the Court found that
registration under SORNA is “controlled by the recidivist philosophy animating
[the] tiered scheme.” Id. at 895 n.4. The Court therefore concluded that
application of Section 9799.14(d)(16) “requires an act, a conviction, and a
subsequent act to trigger lifetime registration for multiple offenses otherwise
subject to a fifteen- or twenty-five-year period of registration.” Id. at 895.
3 18 Pa.C.S.A. § 6312(d).
-4- J-S55021-19
The Court stated its analysis was controlled by, and further explained
in, a companion case decided the same day, A.S. v. Pennsylvania State
Police, 143 A.3d 896, 897 (Pa. 2016). Id. at 892, 894-95. In A.S., the
defendant challenged application of the analogous section of Megan’s Law II,
the sex offender registration statute that preceded SORNA. The defendant had
“entered an open guilty plea to single counts of sexual abuse of children and
unlawful contact with a minor—each of which was an enumerated offense for
purposes of Megan’s Law II reporting under [42 Pa.C.S.A. §] 9795.1(a).” A.S.,
143 A.3d at 899. The Supreme Court explained that as the statute “sets forth
a graduated scheme of registration” and “encompasses a recidivist
philosophy,” it was not designed to apply to first-time offenders, even those
convicted of multiple counts. Id. at 897, 905. The Court explained the statute
was designed “to afford first-time offenders (or offenders convicted of less
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J-S55021-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT WILLIAM KEECH : : Appellant : No. 371 WDA 2019
Appeal from the Judgment of Sentence Entered November 19, 2018 In the Court of Common Pleas of Elk County Criminal Division at No(s): CP-24-CR-0000216-2017
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 06, 2020
Robert William Keech appeals from the judgment of sentence imposed
following his guilty pleas to corruption of minors and indecent assault. 1 Keech
argues the court erred in notifying him he would be required to register as a
Tier III sexual offender under the Sex Offender Registration and Notification
Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10-9799.75. We vacate Keech’s
judgment of sentence in part and remand for resentencing.
A criminal information alleged Keech had inappropriate sexual contact
with his granddaughter on five occasions between January and March of 2017.
See N.T. (guilty plea), 7/12/18, at 3-4, 7-8. Keech entered open guilty pleas
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 6301(a)(1)(ii) and 3126(a)((8), respectively. J-S55021-19
to one count of corruption of minors, as a third-degree felony, and one count
of indecent assault, as a second-degree misdemeanor. Id. at 13, 17-18.
The court sentenced Keech to an aggregate of six months to 2 years of
incarceration, followed by six years of probation. The court also notified Keech
of his registration requirements under SORNA. The court found that the
offense of corruption of minors was classified as a Tier I sexual offense, and
the offense of indecent assault was classified as a Tier II sexual offense. See
Trial Court Opinion, filed 3/9/19, at 1-2 (citing 42 Pa.C.S.A. §§ 9799.14(b)(8),
(c)(1.3)). The court notified Keech that because of these two convictions, he
would be required to register as a Tier III sexual offender under 42 Pa.C.S.A.
§ 9799.14(d)(16). See id. at 2; N.T. (sentencing), 11/15/18, at 4. This
section provides that “[t]wo or more convictions of offenses listed as Tier I or
Tier II sexual offenses” shall be classified as a Tier III sexual offense. 42
Pa.C.S.A. § 9799.14(d)(16).
Keech filed a motion for reconsideration, which the court denied. Keech
appealed, and raises the following:
Did the trial court err and/or abuse its discretion when it found [Keech] to be a Tier III SORNA Registrant where [Keech] did not meet the statutory criteria of a “sexually violent predator”, where the Indecent Assault charge to which [Keech] pled is a Tier II offense and where the Corruption of Minors charge to which [Keech] pled is a Tier I offense which both arouse out of the same incident and involved the same victim?
Keech’s Br. at 4.
-2- J-S55021-19
Keech argues that his guilty pleas to indecent assault and corruption of
minors do not constitute “two or more convictions” of Tier I/Tier II sexual
offenses under 42 Pa.C.S.A. § 9799.14(d)(16). Keech relies on
Commonwealth v. Lutz-Morrison, 143 A.3d 891 (Pa. 2016), which he
claims established that Section 9799.14(d)(16) “requires an act, a conviction,
and a subsequent act to trigger lifetime registration for multiple offenses.”
Keech’s Br. at 12 (quoting Lutz-Morrison, 143 A.3d at 895) (Keech’s
emphasis omitted). Keech argues that here, his convictions arose out of the
same incident, and did not qualify as a conviction and a subsequent act. Id.
at 15.
In its opinion, the trial court asserts Keech waived this issue by not
raising it at any time before the appeal, and presenting it for the first time in
his statement of errors complained of on appeal.2 Tr. Ct. Op. at 2. Keech does
not address waiver in his brief. The Commonwealth did not submit a brief, but
filed a letter directing this Court to the trial court’s opinion.
The issue is not waived. Keech alleges the trial court erroneously
increased his registration requirement under SORNA. Precedents have
determined that these requirements are punitive in nature and affect the
legality of a sentence, which is a non-waivable issue. See Commonwealth
v. Butler, 173 A.3d 1212, 1215 (Pa.Super. 2017); Commonwealth v.
Sauers, 159 A.3d 1, 16 (Pa.Super. 2017). We therefore review the issue,
2 See Pa.R.A.P. 1925(b).
-3- J-S55021-19
utilizing a plenary scope of review and a de novo standard of review. Butler,
173 A.3d at 1215.
We conclude Lutz-Morrison controls the outcome of this case. In Lutz-
Morrison, the defendant plead guilty to multiple counts of sexual abuse of
children (possession of child pornography),3 a Tier I sexual offense, after the
police seized four computers at his home. 143 A.3d at 893. The trial court
notified the defendant he would be subject to lifetime registration as a Tier III
offender under Section 9799.14(d)(16). Id. at 894.
The Supreme Court held that the trial court erred in considering the
defendant’s immediate offenses as “two or more convictions” for purposes of
Section 9799.14(d)(16). Id. The Court noted the defendant “was charged in
a single information arising from the search of his property; he entered court
as a first-time offender on those charges and pled guilty to three counts—all
Tier I offenses; and there were no direct victims of his crimes, much less
multiple direct victims.” Id. at 895. While the Court acknowledged that each
conviction constituted a separate, independent crime, the Court found that
registration under SORNA is “controlled by the recidivist philosophy animating
[the] tiered scheme.” Id. at 895 n.4. The Court therefore concluded that
application of Section 9799.14(d)(16) “requires an act, a conviction, and a
subsequent act to trigger lifetime registration for multiple offenses otherwise
subject to a fifteen- or twenty-five-year period of registration.” Id. at 895.
3 18 Pa.C.S.A. § 6312(d).
-4- J-S55021-19
The Court stated its analysis was controlled by, and further explained
in, a companion case decided the same day, A.S. v. Pennsylvania State
Police, 143 A.3d 896, 897 (Pa. 2016). Id. at 892, 894-95. In A.S., the
defendant challenged application of the analogous section of Megan’s Law II,
the sex offender registration statute that preceded SORNA. The defendant had
“entered an open guilty plea to single counts of sexual abuse of children and
unlawful contact with a minor—each of which was an enumerated offense for
purposes of Megan’s Law II reporting under [42 Pa.C.S.A. §] 9795.1(a).” A.S.,
143 A.3d at 899. The Supreme Court explained that as the statute “sets forth
a graduated scheme of registration” and “encompasses a recidivist
philosophy,” it was not designed to apply to first-time offenders, even those
convicted of multiple counts. Id. at 897, 905. The Court explained the statute
was designed “to afford first-time offenders (or offenders convicted of less
serious offenses) some amount of time within which to modify their behavior
away from criminality. Should they fail to take advantage of the opportunity,
and transgress a second time or more, the ‘next’ sentence will be more
severe.” Id. at 898 n.2 (quoting Commonwealth v. Gehris, 54 A.3d 862,
875 (Pa. 2012) (opinion in support of reversal by Castille, C.J., joined by
Saylor and Baer, JJ.)).
Here, Keech pleaded guilty to two separate offenses: corruption of
minors and indecent assault. Accordingly, he received a sentence for each
crime. However, these convictions arose from criminal conduct alleged in a
single criminal information, resulting in a single criminal case. More
-5- J-S55021-19
importantly, as Keech had not been convicted of any other Tier I or Tier II
offense before he pleaded guilty in this case, there was no conviction in
between Keech’s criminal acts at issue here such that application of Section
9799.14(d)(16) was proper. Lutz-Morrison, 143 A.3d at 895. We therefore
vacate Keech’s judgment of sentence as to his classification as a Tier III
offender, and remand for new notification of Keech’s registration
requirements. See Commonwealth v. Leonard, 172 A.3d 628, 632
(Pa.Super. 2017); Sauers, 159 A.3d at 16.
Judgment of sentence vacated in part. Case remanded with instructions.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 1/6/2020
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