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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    RANDY LEE FENSTERMAKER, JR.,               :
                                               :
                       Appellant               :   No. 263 WDA 2018


           Appeal from the Judgment of Sentence, February 8, 2018,
                in the Court of Common Pleas of Butler County,
             Criminal Division at No(s): CP-10-CR-0000592-2017.


BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.

MEMORANDIUM BY KUNSELMAN, J.:                       FILED DECEMBER 18, 2018

        Randy Lee Fenstermaker, Jr. appeals his judgment of sentence, claiming

that his lifetime sentence of registration under the Sex Offender Registration

and Notification Act (SORNA)1 is illegal. He claims that the trial court could

not order registration in excess of the maximum possible incarceration periods

for his crimes – here, 14 years. This Court has recently rejected that legal

theory; thus, we affirm.

        According to the Commonwealth’s affidavit of probable cause, on the

morning of February 27, 2017, Fenstermaker molested his roommate’s four-

year-old daughter. She immediately reported the assault to her father, who

called the police. Two days later, they arrested Fenstermaker. After receiving

____________________________________________


1   42 Pa.C.S.A. § 9799.10 et seq.
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his constitutional warnings under Miranda v. Arizona, 384 U.S. 436 (1966),

he confessed.

        In October of 2017, Fenstermaker pleaded guilty to indecent assault2

and corruption of minors.3 The trial court accepted his negotiated guilty plea,

which called for an aggregate sentence of two to four years’ imprisonment.

        The court also informed Fenstermaker that he was a Tier III offender

under SORNA and ordered him to comply with its registration requirements

for the rest of his life. Thereafter, he filed a post-sentence motion, claiming

that a lifetime registration requirement constituted an illegal sentence,

because the SORNA registration was for a longer period than the maximum

sentences for the crimes to which he pleaded guilty. The court of common

pleas rejected that contention.

        This timely appeal followed.

        Fenstermaker raises one issue on appeal. He argues that, because the

case of Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), held SORNA’s

registrations requirements to be criminal punishment, the common pleas court

“erred in sentencing him to an illegal sentence,4 as he was sentenced to a


____________________________________________


2   18 Pa.C.S.A. § 3126(a)(7).

3   18 Pa.C.S.A. § 6301(a)(1)(ii).

4 “We review the legality of a sentence de novo, and our scope of review is
plenary.” Commonwealth v. Butler, 173 A.3d 1212, 1215 (Pa. Super.
2017).



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lifetime registration under SORNA where the statutory maximum sentence is

fourteen years.” Fenstermaker’s Brief at 20.

       The    Commonwealth         does    not   directly   address   Fenstermaker’s

argument. Instead, it replies that the version of SORNA, under which he was

sentenced, “no longer exists.”5 Commonwealth’s Brief at 1. It points out the

General Assembly, on February 21, 2018, amended SORNA via Act 10 (and,

later, via Act 29) “to specifically address Muniz, as well as Commonwealth

v. Butler, 173 A.3d 1212 (Pa. Super. 2017).” Id. Thus, the Commonwealth

thinks that Act 10 of 2018 (and, presumably, now Act 29) has reformed

SORNA        from   criminal    punishment       into   a   non-punitive,   “collateral

consequence” of an underlying crime. Id.

       We need not address the Commonwealth’s claim that Acts 10 – and by

extension, Act 29 – have reverted sex-registration in Pennsylvania to a civil,

collateral consequence, rather than criminal punishment, to resolve this

appeal.    Even if the General Assembly has failed in its attempt to render

SORNA’s registration requirements non-punitive, Fenstermaker would still

lose his appeal under Commonwealth v. Strafford, 194 A.3d 168 (Pa.

Super. 2018).

       There, a panel of this Court held that our legislature could – and did –

create multiple types of punishment for a given crime.           Thus, the legislature
____________________________________________


5 The Commonwealth is correct that the legislature has repealed and replaced
the original SORNA since Fenstermaker’s guilty plea and sentence. The first,
now-repealed-and-replaced rendition of SORNA was the General Assembly’s
fourth edition of Megan’s Law, which also suffered constitutional infirmities.

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may punish sex-offenders by both a statutory-maximum incarceration period

and a limitless SORNA-registration period thereafter.   We found those two

punishments are separate and distinct.        Thus, sex-offenders’ SORNA

registration periods are unrelated to whatever maximum-incarceration period

Chapter 11 of the Crimes Code establishes for their crimes.

     We explained:

        that the General Assembly “has the exclusive power to
        pronounce which acts are crimes, to define crimes, and to
        fix the punishment for all crimes. The legislature also has
        the sole power to classify crimes[.]” Commonwealth v.
        Eisenberg, 626 Pa. 512, 98 A.3d 1268, 1283 (2014)
        (citation and quotation omitted).

           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.



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             However, most sentencing alternatives are not tied to the
         maximum authorized term of incarceration. For example,
         the 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 [18 Pa.C.S.A. §] 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.

             Accordingly, we conclude that Appellant’s lifetime
         registration requirement authorized by SORNA does not
         constitute an illegal sentence. Appellant is not entitled to
         relief.

Strafford, 194 A.3d at 172–73. See also Commonwealth v. Bricker, ___

A.3d ___, 2018 WL 5093265 (Pa. Super. 2018) (accord).

      Based on our decision in Stafford, supra, Fenstermaker’s argument on

appeal fails.

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2018




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