Com. v. Serrano, J.

• Court: Superior Court of Pennsylvania
• Decided: September 30, 2016
• Docket: 3785 EDA 2015
• Status: Unpublished

Opinion

J-A19034-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA v.

JUAN ANTHONY SERRANO,

Appellant No. 3785 EDA 2015

Appeal from the Judgment of Sentence November 16, 2015 in the Court of Common Pleas of Monroe County Criminal Division at No(s):CP-45-CR-0001047-2015

BEFORE: FORD ELLIOTT, P.J.E., OTT, and FITZGERALD,* JJ.

JUDGMENT ORDER BY FITZGERALD, J.: FILED SEPTEMBER 30, 2016

Appellant, Juan Anthony Serrano, appeals from judgment of sentence

of the Monroe County Court of Common Pleas ordering him to serve an

aggregate twenty-six to eighty-four months’ imprisonment and classifying

him as a Tier III sexual offender based on his guilty plea to two counts of

possession of child pornography.1 Appellant claims that (1) the sexual

abuse of children enhancement of the Sentencing Guidelines is

unconstitutional, (2) the trial court’s sentence is manifestly unreasonable,

and (3) he should have been classified as a Tier I offender.2 We affirm in

part, reverse in part, and remand this case for the entry of an order

classifying Appellant as a Tier I offender.

* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. § 6312(d). 2 We have reordered the arguments set forth in Appellant’s Brief. J-A19034-16

The Honorable Jonathan Mark thoroughly addressed Appellant’s issues

in his Pa.R.A.P. 1925(a) opinion and found that (1) Appellant’s constitutional

challenge to the sentencing enhancement was waived, (2) Appellant’s

sentencing challenge did not raise a substantial question and in any event,

did not warrant relief, and (3) Appellant’s classification as a Tier III offender

was required by this Court’s decision in Commonwealth v. Merolla, 909

A.2d 337 (Pa. Super. 2006). See Trial Ct. Op., 2/1/16, 5-18. We discern no

error or abuse of discretion in the trial judge’s consideration of Appellant’s

first two challenges and affirm based on the court’s opinion. See id. at 8-10

(discussing waiver of Appellant’s constitutional challenge), 11-18 (discussing

Appellant’s discretionary aspect of sentence challenge).

As to Appellant’s third challenge, in which he contests his classification

as Tier III sexual offender under 42 Pa.C.S. § 9799.14(d)(16), the

Pennsylvania Supreme Court recently decided Commonwealth v. Lutz-

Morrison, ___ A.3d ___, 2016 WL 4273555 (Pa. Aug. 15, 2016), and A.S.

v. Pa. State Police, ___ A.3d ___, 2016 WL 4273568 (Pa. Aug. 15, 2016).

In light of the clarification provided by the Pennsylvania Supreme Court, it is

apparent that Appellant must be classified as a Tier I offender.3 See Lutz-

Morrison, ___ A.3d at ___, 2016 WL 4273555 at *2 (holding a Tier III

classification “requires an act, a conviction, and a subsequent act to trigger

3 The Commonwealth agrees that relief is due in light of Lutz-Morrison.

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lifetime registration for multiple offenses otherwise subject to a fifteen- or

twenty-five-year period of registration”).

Thus, we affirm the conviction, but reverse Appellant’s classification as

a Tier III offender. Appellant shall be classified as a Tier I offender. See 42

Pa.C.S. § 9799.14(b)(9).

Judgment of sentence affirmed in part and reversed in part. Case

remanded for the entry of an order classifying Appellant as a Tier I offender.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/30/2016

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