Com. v. Murray, W.

• Court: Superior Court of Pennsylvania
• Decided: February 11, 2015
• Docket: 1694 WDA 2014
• Status: Unpublished

Opinion

J-S09044-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

WILLIAM EARL MURRAY, JR.,

Appellant No. 1694 WDA 2014

Appeals from the Judgment of Sentence entered September 24, 2014, in the Court of Common Pleas of Fayette County, Criminal Division, at No(s): CP-26-CR-0000611-2014

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

MEMORANDUM BY ALLEN, J.: FILED FEBRUARY 11, 2015

William Earl Murray, Jr. (“Appellant”) appeals from the judgment of

sentence imposed after he pleaded guilty to three counts of distribution of

child pornography, five counts of possession of child pornography, and one

count of criminal use of a communication facility.1 We affirm.

The pertinent facts and procedural history may be summarized as

follows: On November 9, 2013, agents from the Pennsylvania Office of the

Attorney General’s Bureau of Criminal Investigations conducted an internet

investigation to identify individuals involved in the sharing of child

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1 18 Pa.C.S.A. §§ 6312(c)(1) and (d)(1), and 7512(a). J-S09044-15

pornography. Affidavit of Probable Cause, 1/14/14. The investigation led

the agents to Appellant’s Internet Protocol (“IP”) address and a search

warrant was subsequently executed at Appellant’s residence. Id. A search

of Appellant’s computer yielded various files containing child pornography.

Appellant was arrested and charged with the aforementioned crimes. Id.

At a hearing commenced on July 2, 2014 and concluded on July 4,

2014, Appellant pleaded guilty and the trial court ordered an assessment by

the Sexual Offender Assessment Board in accordance with the Sex Offender

Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. § 9799.10 et seq.2

On September 24, 2014, the trial court sentenced Appellant at Count 1 to a

term of imprisonment of 1 - 2 years, with no further penalty imposed at the

2 The Pennsylvania General Assembly passed SORNA as Act 111 of 2011, signed December 20, 2011. In so doing, it provided for the expiration of prior registration requirements, commonly referred to as Megan's Law, 42 Pa.C.S. §§ 9791– 9799.9, as of December 20, 2012, and for the effectiveness of SORNA on the same date. The General Assembly set forth its purposes in adopting SORNA, which included bringing Pennsylvania into substantial compliance with the Adam Walsh Act and providing a mechanism for the general public and law enforcement to obtain information concerning sexual offenders. Id. § 9799.10. SORNA also includes legislative findings and a declaration of policy instructing that “[t]he Adam Walsh Child Protection and Safety Act of 2006 provides a mechanism for the Commonwealth to increase its regulation of sexual offenders in a manner which is nonpunitive but offers an increased measure of protection to the citizens of this Commonwealth.” Id. § 9799.11(a)(2)…

In re J.B., --- A.3d ----, 2014 WL 7369785, at 1 (Pa. 2014).

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remaining counts, and ordered Appellant to lifetime registration pursuant to

42 Pa.C.S.A. § 9799.23.

Appellant presents two constitutional issues for our review:

I. IS IT UNCONSTITUTIONAL TO REQUIRE AN APPELLANT TO REGISTER FOR A LIFETIME WHEN SAID REGISTRATION REQUIREMENT EXCEEDS THE STATUTORY MAXIMUM PENALTY FOR APPELLANT’S OFFENSE?

II. IS THE ADAM WALSH STATUTE UNCONSTITUTIONAL IN REQUIRING AN APPELLANT TO REGISTER FOR TWENTY FIVE (25) YEARS?3

Appellant’s Brief at 7. Appellant’s issues are interrelated. Therefore, we

discuss them together.

Appellant argues that SORNA is unconstitutional because the lifetime

registration requirement exceeds the statutory maximum sentence for the

crimes to which he pleaded, and because the lifetime registration

requirement constitutes cruel and unusual punishment. Appellant’s Brief at

11. Preliminarily, we note that the argument portion of Appellant’s brief in

which he asserts that SORNA is unconstitutional consists of less than four

full pages, and does not reference the constitutional provisions upon which

Appellant bases his argument. Nor does Appellant in his brief direct this

Court to the specific provisions of SORNA that he seeks to have declared

unconstitutional. It is Appellant’s responsibility to develop arguments in his ____________________________________________

3 Appellant was subject to lifetime registration requirement pursuant to 42 Pa.C.S.A. § 9799.23, and not twenty-five (25) years of registration he suggests in his statement of questions.

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brief and where he has not done so we will find the claim waived. See

Commonwealth v. Gibbs, 981 A.2d 274, 284 (Pa. Super. 2009), appeal

denied, 3 A.3d 670 (Pa. 2010) (“It is Appellant's obligation to sufficiently

develop arguments in his brief by applying the relevant law to the facts of

the case, persuade this Court that there were errors below, and convince us

relief is due because of those errors [and if] an appellant does not do so, we

may find the argument waived.”). Thus, we find that based upon Appellant’s

failure to sufficiently develop his constitutional argument, the claim is

waived.

Futhermore, even if Appellant had not waived his constitutional claims,

they are devoid of merit. With regard to Appellant’s claim that the lifetime

registration requirement constitutes excessive punishment and is

unconstitutional because it exceeds the statutory maximum sentence, our

Courts have found such claims unavailing. Our Supreme Court has

repeatedly held, under the now-expired provisions of Megan’s Law, that

lifetime registration requirements are not punitive but remedial in nature,

and “[b]ecause we do not view the registration requirements as punitive but,

rather, remedial, we do not perceive mandating compliance by offenders

who have served their maximum term to be improper.” Commonwealth v.

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

832 A.2d 962 (Pa. 2003). See also Commonwealth v. Benner, 853 A.2d

1068 (Pa. Super. 2004).

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In reliance on Gaffney, Williams and Benner, this Court in

Commonwealth v. McDonough, 96 A.3d 1067, 1070-1710 (Pa. Super.

2014) recently explained that “[w]hile Gaffney and Benner were decided

prior to the effective date of SORNA, the same principles behind the

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.” Accordingly, because

SORNA is a non-punitive remedial scheme, and not a punishment, we

concluded in McDonough that the appellant’s claims – that his registration

requirements constituted excessive punishment, and that SORNA was

unconstitutional for requiring an individual to register for many years longer

than the maximum penalty – failed. Id.

In the present case, Appellant advances arguments identical to those

raised in McDonough, in which we declined to find SORNA unconstitutional.

Although McDonough pertained to a 15-year registration requirement, the

rationale in McDonough is equally applicable to the lifetime registration

requirement at issue in the present case. Consonant with McDonough,

Appellant’s constitutional claims fail.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/11/2015

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