Com. v. Shields, E.

• Court: Superior Court of Pennsylvania
• Decided: July 13, 2018
• Docket: 1065 MDA 2017
• Status: Unpublished

Opinion

J-S28005-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERIC LEE SHIELDS : : Appellant : No. 1065 MDA 2017

Appeal from the Judgment of Sentence Entered June 2, 2017 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0001987-2016

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.: FILED JULY 13, 2018

Appellant, Eric Lee Shields, appeals from the judgment of sentence

entered on June 2, 2017, as made final by the denial of his post-sentence

motion on June 22, 2017. We are constrained to affirm.

As our resolution is based on the procedural posture of this case, we

decline to set forth the factual background. On February 21, 2017, Appellant

pled guilty to two counts of failure to comply with sexual offender registration

requirements.1 On June 2, 2017, the trial court sentenced Appellant to an

aggregate term of four to ten years’ imprisonment. The trial court denied

Appellant’s timely post-sentence motion on June 22, 2017. This timely appeal

followed.

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1 18 Pa.C.S.A. § 4915(a)(1). J-S28005-18

The trial court ordered Appellant to file a concise statement of errors

complained of on appeal (“concise statement”). See Pa.R.A.P. 1925(b).

Appellant filed a concise statement listing only one issue challenging the

discretionary aspects of his sentence. Appellant did not include a challenge

to the penal provisions of the Sexual Offender Registration and Notification

Act in his concise statement.

While this appeal was pending, Appellant sought vacatur of the briefing

schedule and permission to address the applicability of Commonwealth v.

Muniz, 164 A.3d 1189 (Pa. 2017) in his brief before this Court. Appellant did

not seek a remand to the trial court so that he could file an amended concise

statement. This Court granted Appellant’s application, vacated the briefing

schedule, and stated that Appellant could address the applicability of Muniz

in his brief. This Court did not remand the case for the filing of an amended

concise statement.

Appellant presents one issue for our review:

Whether Appellant’s convictions under the Sexual Offender Registration and Notification Act violate the ex post facto clause of the Pennsylvania and United States constitutions?

Appellant’s Brief at 1 (certain capitalization omitted).

Prior to addressing the merits of Appellant’s lone issue, we first address

whether he has preserved the issue. Pennsylvania Rule of Appellate Procedure

1925 provides that “[i]ssues not included in the [concise s]tatement and/or

not raised in accordance with the provisions of this paragraph (b)(4) are

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waived.” Pa.R.A.P. 1925(b)(4)(vii). Except in very limited circumstances not

present in the case sub judice, this finding of waiver is mandatory. See

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998); see also

Commonwealth v. Lawrence, 99 A.3d 116, 124 (Pa. Super. 2014)

(defendant can waive ex post facto challenge to a statute); Commonwealth

v. Watley, 81 A.3d 108, 117 (Pa. Super. 2013) (en banc), appeal denied, 95

A.3d 277 (Pa. 2014) (“The constitutionality of a statute can be waived.”). As

noted above, Appellant did not raise his ex post facto challenge in his concise

statement. Hence, he has waived his lone appellate issue and we are

constrained to affirm the judgment of sentence.2

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/13/18

2We note that nothing in this decision precludes Appellant from pursuing relief under the Post-Conviction Relief Act, if appropriate.

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