Commonwealth v. Horning

• Decision Date: 11 July 2018
• Docket Number: No. 1442 MDA 2017,1442 MDA 2017
• Citation: 193 A.3d 411
• Parties: COMMONWEALTH of Pennsylvania v. Jay Edwin HORNING, Appellant
• Court: Pennsylvania Superior Court

193 A.3d 411

COMMONWEALTH of Pennsylvania

v.Jay Edwin HORNING, Appellant

No. 1442 MDA 2017

Superior Court of Pennsylvania.

Submitted June 4, 2018

Filed July 11, 2018

Reargument Denied September 11, 2018

Christopher M. Patterson, Lancaster, for appellant.

Craig W. Stedman, Assistant District Attorney, and Janie A. Swinehart, Assistant District Attorney, Lancaster, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

OPINION BY MURRAY, J.:

Jay Edwin Horning (Appellant) appeals from the judgment of sentence imposed following his guilty plea at Criminal Information 0778–2016 and 0777–2016 to multiple counts of involuntary deviate sexual intercourse (IDSI) by forcible compulsion, IDSI of a person less than 16 years of age, rape by forcible compulsion, rape of a child, and unlawful contact with a minor.¹ For the reasons that follow, we affirm in part and vacate in part Appellant's judgment of sentence.

The trial court summarized the relevant facts and procedural history of this case as follows:

[O]n January 5, 2016, [Appellant] (DOB 08/23/88) was charged, at Criminal Information No. 0778–2016, with the crimes of involuntary deviate sexual intercourse (IDSI) by forcible compulsion, IDSI of a person less than 16 years of age, rape by forcible compulsion, rape of a child, and unlawful contact with a minor. These charges relate to a series of sexual assaults that occurred between 2002 and 2004, when the victim, A.M.G. (DOB 01/09/98), was between four and six years of age. [Appellant] was between 14 and 16 years of age at the time of the assaults. The victim did not reveal this abuse until December 14, 2015, when he was interviewed at the Lancaster County Children's Alliance. During a police interview on December 22, 2015, [Appellant] admitted to sexually assaulting and hurting "people in the past," including A.M.G. when A.M.G. was a child and in the care of [Appellant]'s mother.

On January 15, 2016, [Appellant] was charged at Criminal Information No. 0777–2016 with the same crimes of IDSI by forcible compulsion, IDSI of a person less than 16 years of age, rape by forcible compulsion, rape of a child, and unlawful contact with a minor. These charges relate to sexual assaults that occurred during the same time frame, 2002 to 2004, when the second victim, C.B. (DOB 04/09/99), was between four and six years of age. The victim revealed this abuse for the first time during an interview at the Children's Alliance on January 13, 2016. At the time [Appellant] was charged with these crimes involving C.B. and A.M.G.[,] he was over the age of 21.

On March 1, 2017, [Appellant] tendered an open or straight guilty plea for all charged offenses. After the submission of a written colloquy and an on-the-record colloquy, the plea was accepted as voluntary, knowing and intelligent. [Appellant]'s sentencing was deferred to allow for the completion of a presentence investigation.

At the time of the plea, [Appellant] indicated that he had reviewed SORNA's "Notification of Registration and Verification Requirements under Title 42; Section 9799.10," and acknowledged that he would be subject to lifetime registration as a Tier III offender. Defense counsel made a verbal motion at that time to exclude [Appellant] from registration. Counsel were asked to submit memoranda of law on the applicability of SORNA for the [c]ourt's consideration prior to sentencing.

On July 12, 2017, [Appellant] appeared for sentencing on both dockets. At Information No. 0777–2016, this [c]ourt imposed concurrent sentences of four to eight years [of] incarceration for all offenses. Restitution in the amount of $1,206.76 was imposed, as well as fees and costs.

At Information No. 0778–2016, [Appellant] received concurrent sentences of four to eight years [of] incarceration for all charges. These concurrent sentences were made consecutive to the sentences at No. 0777–2016, for an aggregate sentence of 8 to 16 years [of] incarceration. [Appellant] was further ordered to pay restitution in the amount of $125.00, plus fees and costs.

[Appellant] was deemed ineligible for a Recidivism Risk Reduction Incentive (RRRI) sentence due to his current convictions for IDSI and rape, and his ineligibility was not waived by the Commonwealth. Finally, [Appellant] was advised at sentencing of his lifetime registration obligations pursuant to SORNA as a Tier III sexual offender.

On July 21, 2017, [Appellant] filed a post-sentence motion challenging (1) the applicability of SORNA, and (2) the aggregate minimum sentence as manifestly excessive, an abuse of discretion, and cruel and unusual punishment. The Commonwealth filed a response on August 17, 2017. By Order dated September 8, 2017, [Appellant]'s post-sentence motion was denied.

On September 18, 2017, [Appellant] filed a timely notice of appeal to the Superior Court of Pennsylvania from his judgment of sentence. See 1442 MDA 2017. Pursuant to this [c]ourt's directive, [Appellant] filed a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Trial Court Opinion, 11/17/17, at 1–4 (footnotes and record citations omitted).

Appellant presents the following issues for review:

A. Whether the lower court erred in ordering [Appellant] to comply with the registration and notification requirements of SORNA when the criminal acts occurred between 2002 and 2004 when [Appellant] was 16 years of age or younger?

B. Whether the imposition of consecutive sentences resulting in an aggregate sentence of not less than eight nor more than sixteen years was clearly unreasonable and manifestly excessive?

Appellant's Brief at 7.

First, Appellant argues that he should not be subject to SORNA's registration requirements, which became effective in December 2012 and were not in effect at the time he committed his crimes between 2002 and 2004. Although Appellant acknowledges that SORNA was in effect when he pled guilty to those crimes, he asserts that application of SORNA to his case violates the ex post facto clause of the Pennsylvania Constitution under Commonwealth v. Muniz , 164 A.3d 1189 (Pa. 2017). Because this issue presents a question of law, our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Lee , 594 Pa. 266, 935 A.2d 865, 876 (2007).

Pennsylvania's Sex Offender Registration and Notification Act (SORNA), 42 Pa.C.S.A. §§ 9799.10 – 9799.42, establishes a statewide registry of sexual offenders. 42 Pa.C.S.A. § 9799.16(a). On December 20, 2012, SORNA replaced the then existing sexual offender registration statutory provisions, commonly known as Megan's Law III, 42 Pa.C.S.A. §§ 9791 – 9799.9 (expired). The General Assembly implemented SORNA in order to bring Pennsylvania's sexual offender reporting system in line with the federal mandates of the federal Adam Walsh Child Protection and Safety Act of 2006, Public Law 109–248, 42 U.S.C. §§ 16901 – 16991, which requires a tier-based registration and notification scheme. Muniz , 164 A.3d at 1203–04.

For purposes of registration, SORNA classifies sexual offenders into the following three tiers:

Those convicted of Tier I offenses are subject to registration for a period of fifteen years and are required to verify their registration information and be photographed, in person at an approved registration site, annually. 42 Pa.C.S.[A.] § 9799.15(a)(1), (e)(1). Those convicted of Tier II offenses are subject to registration for a period of twenty-five years and are required to verify their registration information and be photographed, in person at an approved registration site, semi-annually. 42 Pa.C.S.[A.] § 9799.15(a)(2), (e)(2).

Those convicted of Tier III offenses are subject to lifetime registration and are required to verify their registration information and be photographed, in person at an approved registration site, quarterly. 42 Pa.C.S.[A.] § 9799.15(a)(3), (e)(3).

Id. at 1206–1207 (footnotes omitted).

The offenses that constitute Tier I, II, and III offenses are set forth in 42 Pa.C.S.A. § 9799.14(b) - (d). Here there is no dispute that Appellant is a Tier III sexual offender due to his various convictions of rape and IDSI. See 42 Pa.C.S.A. § 9799.14(d)(2), (4). As a Tier III offender under SORNA, Appellant is subject to lifetime registration and quarterly reporting requirements. See 42 Pa.C.S.A. § 9799.15(a)(3), (e)(3). Because he committed these offenses prior to when SORNA became effective, Appellant argues that under Muniz , the application of SORNA to his sentence violates the ex post facto clause of the Pennsylvania Constitution.

In Muniz , the defendant was convicted in February 2007 of two counts of indecent assault of a person less than 13 years of age with sentencing scheduled for May 2007. Id. at 1193. At the time of his conviction, Muniz "would have been ordered to register as a sex offender with the Pennsylvania State Police for a period of ten years pursuant to then-effective Megan's Law III." Id. at 1192 (citing 42 Pa.C.S.A. § 9795.1 (expired) ). Muniz, however, never appeared for sentencing and absconded until he was later apprehended in September 2014. Id. When Muniz was finally sentenced in 2014, the trial court ordered him to comply with the lifetime registration provisions under the then-effective SORNA, pursuant to which he was a Tier III sexual offender. Id. Muniz appealed.

On appeal to our Supreme Court, five of the six participating justices held that even though the General Assembly identified SORNA's enhanced registration provisions as non-punitive, they nonetheless constituted punishment. Id. at 1218. The Supreme Court further determined that the retroactive application of SORNA's registration requirements to Muniz violated the ex post facto clause of the Pennsylvania Constitution. Id. at 1218–19. Our Supreme Court explained:

Critical to relief under the ex post facto clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond

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