Com. v. Mamel, T.

• Court: Superior Court of Pennsylvania
• Decided: February 6, 2015
• Docket: 1263 WDA 2014
• Status: Unpublished

Opinion

J-S76038-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

THEODORE MAMEL,

Appellant No. 1263 WDA 2014

Appeal from the Judgment of Sentence of July 23, 2014 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0000384-2014

BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.

MEMORANDUM BY OLSON, J.: FILED FEBRUARY 06, 2015

Appellant, Theodore Mamel, appeals from the judgment of sentence

entered on July 23, 2014, following his guilty plea convictions of unlawful

contact with a minor – open lewdness, sexual abuse of children -

disseminating photographs of child sex acts, and child pornography.1 We

affirm.

The trial court summarized the facts and procedural history of this

case as follows:

Pursuant to a plea bargain, [Appellant] pled guilty on July 21, 2014 to [the aforementioned charges]. Two other charges were then nolle prossed. The [trial c]ourt sentenced [Appellant] on July 23, 2014 to a term of incarceration of one to two years pursuant to the plea entered to the charge of [u]nlawful contact, and accepted ____________________________________________

1 18 Pa.C.S.A. §§ 6318(a)(2), 6312(c), and 6312(d), respectively. J-S76038-14

the pleas relative to [d]isseminating [p]hotos and [c]hild [p]ornography without the imposition of further penalty.

During his plea, [Appellant] acknowledged viewing pictures of naked female children, whom he knew to be under the age of eighteen years, on his computer and then sending those pictures to other computers owned by other people. He agreed to be sentenced without a pre-sentence report, but was notified that he would need to be assessed by the Sexual Offender Assessment Board. At the time of his sentencing, [Appellant] was informed of his duty to register for twenty-five years, by appearing twice per year at the registration site, and he was ordered to provide his fingerprints, palm prints, DNA sample and a photograph to the state police. He filed no post-sentence motions.

Trial Court Opinion, 8/11/2014, at 1-2. This timely appeal followed.2

On appeal, Appellant raises the following claims for our consideration:

1. Is it unconstitutional to require an appellant to register for a [25-year period]3 when said registration requirement exceeds the statutory maximum penalty for Appellant’s offense?

2. Is the Adam Walsh statute unconstitutional in requiring [] Appellant to register for twenty[-]five (25) years?

Appellant’s Brief at 7 (complete capitalization omitted).

____________________________________________

2 On July 31, 2014, Appellant filed a notice of appeal. On August 5, 2014, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied on August 7, 2014. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on August 11, 2014. 3 As discussed below, Appellant was required to register as a sex offender for 25 years based upon his underlying conviction. At times throughout his brief, however, Appellant claims he was subjected to lifetime registration; thus, we have corrected this error throughout this memorandum.

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Appellant’s issues are inter-related, so we will examine them together.

In his first issue presented, “Appellant avers that the imposition of the

additional [25-year] registration [for sexual offenders] is illegal as it exceeds

the statutory maximum penalty pr[e]scribed for the crime of which he was

convicted [- unlawful contact with a minor].” Appellant’s Brief at 11.

Appellant claims that while previous Pennsylvania decisions have held that

registration requirements are civil penalties, those requirements are imposed

at sentencing, potentially subject the offender to additional criminal

penalties, and, therefore, the imposition of registration requirements is

illegal. Id. Thus, Appellant challenges the constitutionality of the Sexual

Offender Registration and Notification Act (SORNA). Id. at 12. “Appellant

believes that to require [] a registration period [exceeding the statutory

sentencing maximums for the crime upon which he pled guilty] constitutes

an unusual punishment as barred by the Pennsylvania and U.S.

Constitutions[.]” Id. at 12.

Initially, we note that Appellant has presented scant legal argument in

support of his contentions and we could find his issues waived. See

Commonwealth v. Miller, 721 A.2d 1121, 1124 (Pa. Super. 1998) (“When

issues are not properly raised and developed in briefs, when briefs are

wholly inadequate to present specific issues for review, a court will not

consider the merits thereof.”). However, we are cognizant that “[s]o long as

jurisdictional requirements are met, an illegal sentence can never be waived

and may be reviewed sua sponte by this court.” Commonwealth v.

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Edrington, 780 A.2d 721, 723 (Pa. Super. 2001). Thus, we proceed to

examine Appellant’s claims.

Although Appellant initially frames his first issue as a challenge to the

“constitutionality” of SORNA’s 25-year registration requirement, we shall

review this claim as an objection to the legality of Appellant’s sentence since

the thrust of Appellant’s argument is that the registration requirement is

invalid because it exceeds the statutory maximum penalty for Appellant’s

offense. “Issues relating to the legality of a sentence are questions of law.

. . . Our standard of review over such questions is de novo and our scope of

review is plenary.” Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa.

Super. 2014). As this Court has explained:

On December 20, 2011, the legislature replaced Megan’s Law with SORNA, effective December 20, 2012, to strengthen registration requirements for sex offenders and to bring Pennsylvania into compliance with the Adam Walsh Child Protection and Safety Act, 42 U.S.C.A. § 16901 et seq. Section 9799.14 of SORNA establishes a three-tier system of specifically enumerated offenses requiring registration for differing lengths of time.

Commonwealth v. Sampolski, 89 A.3d 1287, 1288 (Pa. Super. 2014).

Unlawful contact with a minor is a Tier II offense and requires a 25-year

period of registration. See 42 Pa.C.S.A. § 9799.14(c)(5); 42 Pa.C.S.A.

§ 9799.15(a)(2).

As to Appellant’s contention that the 25-year registration requirement

is illegal because it exceeds the statutory maximum sentence for unlawful

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contact with a minor, this Court recently rejected a similar challenge,

stating:

In [Commonwealth v. Williams, 832 A.2d 962 (Pa. 2003),] our Supreme Court was asked to decide whether certain provisions of Megan’s Law II were constitutional as it applied to sexually violent predators (SVPs). The Williams Court specifically held that the [application of the] registration, notification, and counseling provisions of Megan’s Law II, to offenders deemed to be SVPs, were non- punitive, regulatory measures supporting a legitimate governmental purpose. Id. at 986. However, [our Supreme] Court did find that the prescribed penalties that attach to SVP’s for failure to register and verify their residence were unconstitutionally punitive and, therefore, invalidated those provisions. Id. . . .

However, [in McDonough, we determined that] [e]ven assuming that [Appellant’s] 15-year registration requirement [wa]s excessive in comparison to his actual sentence of one to two years’ imprisonment, we [could not] ignore our Supreme Court’s pronouncement that:

Because [it] do[es] not view the registration requirements as punitive but, rather, remedial, [it] does not perceive mandating compliance by offenders who have served their maximum term to be improper. Furthermore, the fact that an offender may be held until such information is furnished is no different from confining someone in a civil contempt proceeding. While any imprisonment, of course, has punitive and deterrent effects, it must be viewed as remedial if release is conditioned upon one’s willingness to comply with a particular mandate.

Commonwealth v. Gaffney, 733 A.2d 616, 622 (Pa. 1999).

* * *

While [the cases relied upon] were decided prior to the effective date of SORNA, the same principles behind the

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registration requirements for sexual offenders under Megan’s Law apply to those subject to SORNA. Namely, to effectuate, through remedial legislation, the non-punitive goal of public safety.

Commonwealth v. McDonough, 96 A.3d 1067, 1070–1071 (Pa. Super.

2014) (emphasis removed); see Commonwealth v. Benner, 853 A.2d

1068, 1070 (Pa. Super. 2004) (internal quotation marks, alteration, and

citations omitted) (“The registration provisions of Megan’s Law do not

constitute criminal punishment. . . . [T]he registration requirement is

properly characterized as a collateral consequence of the defendant’s plea,

as it cannot be considered to have a definite, immediate and largely

automatic effect on a defendant’s punishment.”).

Appellant’s challenge in this case focuses upon the registration

requirement itself, not the punishment for a failure to register in accordance

with SORNA’s provisions. See Appellant’s Brief at 11. Under McDonough, a

registration requirement that exceeds the statutory maximum sentence is

not illegal. Although McDonough dealt with a 15-year registration

requirement, its rationale is equally applicable to a 25-year registration

requirement. Therefore, Appellant’s 25-year registration requirement was

not an illegal sentence.

In his second issue, Appellant contends that SORNA is

unconstitutional. Essentially, he alleges that SORNA violates the prohibition

against cruel and unusual punishment found in the Eighth Amendment to the

United States Constitution (as incorporated against the states through the

Fourteenth Amendment) and article I, section 13 of the Pennsylvania

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Constitution. The constitutionality of a statute is a pure question of law,

therefore our standard of review is de novo and our scope of review is

plenary. Robinson Tp., Wash. Cnty. v. Commonwealth, 83 A.3d 901,

943 (Pa. 2013) (citation omitted).

“[T]he Pennsylvania prohibition against cruel and unusual punishment

is coextensive with the Eighth and Fourteenth Amendments to the United

States Constitution, and [] the Pennsylvania Constitution affords no broader

protection against excessive sentences than that provided by the Eighth

Amendment to the United States Constitution.” Commonwealth v. Elia, 83

A.3d 254, 267 (Pa. Super. 2013) (internal quotation marks, alteration, and

citation omitted), appeal denied, 94 A.3d 1007 (Pa. 2014). It is well-settled

that when a statute imposes a disability on a defendant for a reason other

than to punish, it is considered non-penal and outside the confines of the

Eighth Amendment. See Trop v. Dulles, 356 U.S. 86, 96 (1958). As noted

above, in McDonough this Court recently held that SORNA’s goal is “to

effectuate, through remedial legislation, the non-punitive goal of public

safety.” McDonough, 96 A.3d at 1071; see Benner, 853 A.2d at 1070.

We note that our decision in McDonough is congruent with the

decisions of a long list of courts. At least three United States Courts of

Appeals have held that registration requirements under the federal version

of SORNA do not violate the Eighth Amendment. United States v. Under

Seal, 709 F.3d 257, 265 (4th Cir. 2013); United States v. Crews, 496 F.

App’x 896, 901 (11th Cir. 2012); United States v. Davis, 352 F. App’x

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270, 272 (10th Cir. 2009). The Supreme Court of Nevada has likewise held

that Nevada’s version of SORNA does not violate the Eighth Amendment.

Nevada v. Eighth Jud. Dist. Ct. (Logan D.), 306 P.3d 369, 388 n.13

(Nev. 2013). Furthermore, at least five United States Courts of Appeals

have held that the federal version of SORNA is a civil regulatory scheme,

foreclosing the possibility that it violates the Eighth Amendment. United

States v. Roberson, 752 F.3d 517, 524 (1st Cir. 2014); United States v.

Shannon, 511 F. App’x 487, 492 (6th Cir. 2013); United States v. Leach,

639 F.3d 769, 773 (7th Cir.2011); United States v. Young, 585 F.3d 199,

204–205 (5th Cir. 2009); United States v. May, 535 F.3d 912, 920 (8th

Cir. 2008). Courts of last resort in at least two other jurisdictions have

likewise held that their respective versions of SORNA are civil regulatory

schemes. Doe v. Dep't of Pub. Safety & Corr. Servs., 62 A.3d 123, 155–

156 (Md. 2013); Doe I v. Williams, 61 A.3d 718, 730 (Me. 2013) (citation

omitted);

As SORNA is a non-punitive, remedial scheme, it is not punishment for

the purposes of the Eighth Amendment or article 1, section 13 of the

Pennsylvania Constitution. Therefore, SORNA’s 25-year registration

requirement does not violate the prohibition against cruel and unusual

punishment found in the federal and state constitutions.

Judgment of sentence affirmed.

Judge Panella joins the memorandum.

President Judge Emeritus Ford Elliott concurs in the result.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/6/2015

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