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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

GUY C. HAUGHWOUT, SR.

                            Appellant                 No. 2257 MDA 2015


            Appeal from the Judgment of Sentence October 26, 2015
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0001537-2014
                            CP-40-CR-0003790-2013


BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED FEBRUARY 13, 2017

        Guy C. Haughwout, Sr. appeals from the judgment of sentence,

entered in the court of Common Pleas of Luzerne County, following his guilty

plea to charges of failure to comply with registration requirements1 and

failure to provide accurate registration information2 as a sexually violent

predator (SVP).       Upon review, we vacate the judgment of sentence and

remand for resentencing.

        Haughwout was convicted of indecent assault in February 2002 and

has been classified as an SVP subject to lifetime registration. On September
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 4915.1(a).
2
    18 Pa.C.S. § 4915.1(a)(3).
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17, 2015, Haughwout pled guilty to failure to provide accurate registration

information and failure to comply with registration requirements. The court

sentenced him to an aggregate sentence of 11 to 22 years’ incarceration on

October 26, 2015. Haughwout filed a post-sentence motion, which the court

denied on November 18, 2015. Thereafter, Haughwout filed a timely notice

of appeal and court-ordered concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). Haughwout raises the following issue

for our review:

      Whether section 9718.4 of Title 42 is unconstitutional pursuant
      to United States v. Alleyne[,133 S. Ct. 2151 (2013),] as it
      requires the trial court to determine by a preponderance of the
      evidence an additional fact that triggers a mandatory minimum
      sentence, specifically the length of time the appellant is required
      to register, which is not encompassed by Alleyne’s limited
      “prior conviction” exception?

Brief for Appellant, at 4.

      Our standard of review regarding the applicability of a mandatory

sentencing provision is as follows:

      Generally, a challenge to the application of a mandatory
      minimum sentence is a non-waiv[able] challenge to the legality
      of the sentence. Issues relating to the legality of a sentence are
      questions of law, as are claims regarding the interpretation of a
      statute. Our standard of review over such questions is de novo
      and our scope of review is plenary.

Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa. Super. 2012).

      Haughwout asserts that the trial court erred when it sentenced him to

a mandatory minimum sentence as set forth in section 9718.4, arguing that

section 9718.4 is unconstitutional following our Supreme Court’s ruling in


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Alleyne.3 Specifically, Haughwout argues that section 9718.4 requires the

sentencing judge to determine “the length of time a defendant is required to

register, which is not encompassed by Alleyne’s limited ‘prior conviction’

exception.” Brief for Appellant, at 8.

       Haughwout’s argument was recently raised in Commonwealth v.

Pennybaker, 121 A.3d 530 (Pa. Super. 2015), vacated by Commonwealth

v. Pennybaker, 145 A.3d 720 (Pa. 2016) (per curiam order). A panel of

this Court rejected Pennybaker’s argument and determined that the length

of registration to which he was subject was capable of objective proof and

was essentially the equivalent of a prior conviction.         Id. at 534; see

Commonwealth v. Hale, 85 A.3d 570, 585 n. 13 (Pa. Super. 2014),

affirmed by Commonwealth v. Hale, 128 A.3d 781, 786 (Pa. 2015)

(imposition of mandatory minimum sentence based on prior conviction is not

unconstitutional).

       Our Supreme Court granted allowance of appeal in Pennybaker and,

in a per curiam order, vacated this Court’s decision and remanded the

matter to the trial court “for resentencing without application of 42 Pa.C.S. §

9718.4.”     Pennybaker, 145 A.3d 720.           In remanding Pennybaker, the

Supreme Court referenced its decisions in Commonwealth v. Hopkins,


____________________________________________


3
  In Alleyne, the United States Supreme Court held that any fact that
increases the mandatory minimum sentence is an “element” of the crime
that must be submitted to the jury.



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117 A.3d 247 (Pa. 2015) (mandatory minimum sentencing scheme for

offenses regarding controlled substance crimes occurring in school zones

unconstitutional based upon Alleyne) and Commonwealth v. Wolfe, 140

A.3d   651   (Pa.   2016)    (mandatory   minimum     sentencing   scheme   for

involuntary deviate sexual intercourse in 42 Pa.C.S § 9718 unconstitutional

based upon Alleyne).

       Based upon the foregoing, our Court’s ruling in Pennybaker is no

longer sound, and we vacate the judgment of sentence and remand for

resentencing without application of section 9718.4.

       Judgment of sentence vacated.       Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/2017




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