Com. v. Colon, J. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE E. COLON :
:
Appellant : No. 704 MDA 2019
Appeal from the Judgment of Sentence Entered July 18, 2017
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0001413-2016
BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY LAZARUS, J.: FILED: OCTOBER 15, 2019
Jose E. Colon appeals from the judgment of sentence entered in the
Court of Common Pleas of Cumberland County. We affirm.
On January 23, 2017, Colon pled guilty to invasion of privacy, 18 Pa.C.S.
§ 7507.1(a)(1), (b), a misdemeanor of the third degree, in connection with
the surreptitious video recording of a female in the bathroom of her residence.
The Honorable M.L. Ebert, Jr., sentenced Colon to six to twelve months’
imprisonment. As a Tier I offender under Pennsylvania’s Sexual Offender
Registration and Notification Act (SORNA), 42 Pa.C.S. § 9799.10 et seq., Colon
was subject to a 15-year period of registration. Id. at 9799.15(a)(1).
Colon filed a timely motion to modify sentence, claiming the 15-year
registration term was an unauthorized punishment under section 9721 of the
Sentencing Code, exceeded the permissible sentence authorized for
misdemeanors of the third degree under 18 Pa.C.S. § 1104(3), and violated
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the rule in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (fact that
increases penalty for crime beyond prescribed statutory maximum must be
submitted to jury and proved beyond reasonable doubt). The trial court, with
agreement by counsel, stayed the SORNA aspect of Colon’s sentence pending
development of appellate case law on these issues.
On April 15, 2019, in light of Commonwealth v. Martin, 205 A.3d 1247(Pa. Super. 2019), the court entered an order lifting the stay and denying
Colon’s motion to modify sentence.1 Colon filed a timely notice of appeal on
April 30, 2019.2 He raises three issues for our review:
1. Is Colon’s sentence of fifteen (15) years of punishment
pursuant to SORNA illegal as SORNA is not a sentencing
alternative authorized by [s]ection 9721 of the Judicial Code
and the trial court therefore lacked authority to impose such
sentence?
2. Is Colon’s sentence of fifteen (15) years of punishment
pursuant to SORNA illegal as the statutory maximum for a
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1 The court’s order reads:
It is ordered: 1) the defendant’s motion to modify sentence is
denied, 2) the Commonwealth’s Renewed Motion to Resume
Defendant’s SORNA Registration Requirements and Lift Stay is
granted, 3) the stay issued on 09/28/17 is lifted, 4) Defendant’s
15-year [registration] as a Tier l offender shall remain in full force,
and 5) this order is entered with the understanding the
defendant’s counsel will be filing an appeal.
Order, 4/15/19.
2 See Commonwealth v. Chamberlain, 658 A.2d 395 (Pa. Super. 1995)
(order denying post-sentence motions acts to finalize judgment of sentence
for purposes of appeal).
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misdemeanor of the third degree as codified at [s]ection
1104(3) of the Crimes Code is one (1) year?
3. Is Colon’s sentence of fifteen (15) years of punishment
pursuant to SORNA a violation of the Sixth and Fourteenth
Amendments to the United States Constitution as the
penalty imposed was increased beyond the prescribed
statutory maximum based upon the General Assembly’s
factual determination that Defendant “poses[s] a high risk
of committing additional sexual offenses,” 42 Pa.C.S. §
9799.11(a)(4), a fact that was not submitted to the jury nor
proven beyond a reasonable doubt as required by Apprendi
v. New Jersey, 530 U.S. 466 (2000)?
Appellant’s Brief, at 5.
Martin, supra, controls this case. There, Martin pled guilty to one
count of indecent assault, graded as a misdemeanor of the second degree,
which carries a maximum term of imprisonment of two years. 18 Pa.C.S. §
1104(2). Martin argued that the imposition of a 15-year registration
requirement was illegal because: (1) it is not an authorized punishment under
section 9721 of the Sentencing Code;3 (2) it exceeded the statutory maximum
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3 § 9721. Sentencing generally
(a) General rule.—In determining the sentences to be imposed the
court shall, except as provided in subsection (a.1), consider and
select one or more of the following alternatives, and may imposed
them consecutively or concurrently:
(1) An order of probation.
(2) A determination of guilt without further penalty.
(3) Partial confinement.
(4) Total confinement.
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sentence of imprisonment of two years, 18 Pa.C.S. § 1104(2); and (3) it
violated the rule in Apprendi. This Court found Martin’s claims meritless,
concluding this Court’s decisions in Commonwealth v. Bricker, 198 A.3d
371 (Pa. Super. 2018), and Commonwealth v. Strafford, 194 A.3d 168 (Pa.
Super. 2018), were dispositive.
Quoting at length from Strafford, we stated:
Our General Assembly has authorized courts to impose specific
punishments when fashioning a sentence, and specified maximum
terms and amounts of those punishments. These categories of
punishment include (1) partial or total confinement, (2) probation,
(3) state or county intermediate punishment, (4) a determination
of guilt without further penalty, and (5) a fine. 42 Pa.C.S. § 9721.
With respect to the punishment of incarceration, 18 Pa.C.S. §
1103 governs the maximum authorized sentence of imprisonment
for felony convictions. By a separate statute, these maximum
allowable terms also apply to probationary sentences, a different
category of punishment authorized by the General Assembly. In
42 Pa.C.S. § 9754(a), the legislature directed that “[i]n imposing
an order of probation the court shall specify at the time of
sentencing the length of any term during which the defendant is
to be supervised, which term may not exceed the maximum term
for which the defendant could be confined, and the authority that
shall conduct the supervision.” Id. (emphasis added). Thus, the
legislature explicitly connected the authorized punishments of
incarceration and probation by statute.
However, most sentencing alternatives are not tied to the
maximum authorized term of incarceration. For example, the
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(5) A fine.
(6) County Intermediate punishment.
(7) State Intermediate punishment.
42 Pa.C.S. § 9721(a).
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legislature has authorized courts to include in sentences the
requirement that a defendant pay a fine or restitution. These
categories of punishment are not limited by the maximum period
of incarceration; rather, the legislature set different maximum
authorized amounts of punishment a court may impose as part of
its sentence. See, e.g., 18 Pa.C.S. § 1101 (defining maximum
fines); 18 Pa.C.S. § 1106 (providing statutory scheme for
restitution for injuries to person or property).
In SORNA the legislature authorized courts to include
periods of registration as part of a sentence. Similar to the
treatment of the payment of fines or restitution, the
legislature did not tie the period of registration to the
length of incarceration. See 42 Pa.C.S. § 9799.14 (“Sexual
offenses and tier system”); 42 Pa.C.S. § 9799.15 (“Period of
registration”). SORNA’s registration provisions are not
constrained by Section 1103. Rather, SORNA’s registration
requirements are an authorized punitive measure separate
and apart from Appellant’s term of incarceration. The
legislature did not limit the authority of a court to impose
registration requirements only within the maximum
allowable term of incarceration; in fact, the legislature
mandated the opposite and required courts to impose
registration requirements in excess of the maximum
allowable term of incarceration.
Strafford, 194 A.3d at 172-73 (emphasis added). See also Bricker, 198
A.3d at 376-77 (requirement that defendant register as sexual offender for 25
years pursuant to SORNA, imposed on defendant convicted of unlawful contact
with minor, not illegal notwithstanding argument that sentence exceeded
statutory maximum penalty of 7 years’ imprisonment for felony offenses;
SORNA’s registration requirements not governed by statutory maximum
penalties).
Additionally, in Martin we held that the registration requirement
imposed upon Martin pursuant to SORNA did not violate the rule in Apprendi.
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Martin, 205 A.3d at 1252. We stated: “Unlike the defendant in Apprendi,
[Martin] pled guilty to a single count of [i]ndecent [a]ssault and was advised
of the resulting registration and reporting requirements under SORNA. The
trial court at no time made a factual finding that increased [Martin’s]
sentence[,] which was the result of his guilty plea to the qualifying crime. As
such, this claim also lacks merit.” Id.Here, like in Martin, the facts are distinguishable from those in
Apprendi. Unlike the defendant in Apprendi, Colon pled guilty to a single
count of invasion of privacy, and he was advised of and acknowledged the
resulting registration and reporting requirements under SORNA. See
Acknowledgement of Notification Pursuant to 42 Pa.C.S. § 9799.23, 7/19/17.
The trial court at no time made a factual finding that increased Colon’s
sentence that was the result of his guilty plea to the qualifying crime. This
claim, therefore, also lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2019
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