Com. v. Manuszak, A.

• Court: Superior Court of Pennsylvania
• Decided: April 13, 2018
• Docket: 704 EDA 2017
• Status: Unpublished

Opinion

J-A10001-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ANTHONY MANUSZAK : : Appellant : No. 704 EDA 2017

Appeal from the Judgment of Sentence February 3, 2017 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0002397-2015

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and RANSOM*, J.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED APRIL 13, 2018

Appellant, Anthony Manuszak, appeals from the judgment of sentence

entered in the Montgomery County Court of Common Pleas, following his

negotiated guilty plea to two counts of possession of child pornography (18

Pa.C.S.A. § 6312(d)) that Appellant entered on September 22, 2015. On

February 3, 2017, the court imposed the negotiated aggregate sentence of

three (3) to nine (9) years’ imprisonment and determined Appellant is a

sexually violent predator (“SVP”). Appellant timely filed post-sentence

motions on February 13, 2017, which the court denied on February 16, 2017.

Appellant timely filed a notice of appeal on February 23, 2017. On February

27, 2017, the court ordered Appellant to file a concise statement of errors per

Pa.R.A.P. 1925(b). Following an extension, Appellant timely complied on May

25, 2017.

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-A10001-18

On July 28, 2017, Appellant filed an application for relief in this Court

seeking a remand to amend his Rule 1925(b) statement due to our Supreme

Court’s decision in Commonwealth v. Muniz, ___ Pa. ___, 164 A.3d 1189

(2017), cert. denied, ___ U.S. ___, 138 S.Ct. 925, ___ L.Ed.2d ___ (2018).

This Court granted Appellant’s request on August 21, 2017. On September 6,

2017, Appellant filed an amended Rule 1925(b) statement.

On appeal, Appellant challenges the validity of his SVP status in light of

Muniz (holding registration requirements under Sexual Offender Registration

and Notification Act (“SORNA”) constitute criminal punishment) and

Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super. 2017) (holding

provision of SORNA which requires court to decide whether defendant is SVP

by clear and convincing evidence violates federal and state constitutions

because it increases criminal penalty to which defendant is exposed without

fact-finder making necessary factual findings beyond reasonable doubt;

vacating SVP status and remanding to trial court for sole purpose of issuing

appropriate notice under 42 Pa.C.S.A. § 9799.23, governing appellant’s sex

offender registration and reporting requirements). The Commonwealth does

not oppose vacating Appellant’s SVP status and remanding for the limited

purpose of providing Appellant with new notice of his sex offender registration

and reporting requirements under Section 9799.23. See Commonwealth v.

Rizzuto, 566 Pa. 40, 73, 777 A.2d 1069, 1088 (2001) (stating: “Parties may

by stipulation resolve questions of fact or limit the issues, and, if the

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stipulations do not affect the jurisdiction of the court or the due order of the

business and convenience of the court they become the law of the case”);

Commonwealth v. Mathis, 463 A.2d 1167 (Pa.Super. 1983) (supporting

stipulations in criminal cases). Consistent with the parties’ stipulations, we

affirm Appellant’s convictions, vacate his SVP status, and remand to the trial

court to give Appellant new notice of his sex offender registration and

reporting requirements under Section 9799.23.1 We affirm the judgment of

sentence in all other respects.

Judgment of sentence affirmed in part and vacated in part; case

remanded with instructions and hereby stricken from the argument list.

Jurisdiction is relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/13/18

____________________________________________

1SORNA, at 42 Pa.C.S.A. §§ 9799.10-9799.41, went into effect on December 20, 2012, and became the statute governing the registration and supervision of sex offenders. SORNA was recently amended by H.B. 631, 202 Gen. Assem., Reg. Sess. (Pa. 2018), Act 10 of 2018. Upon remand, the court must be cognizant that the prior version of SORNA applies to Appellant.

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