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Commonwealth v. Horning

Superior Court of Pennsylvania

July 11, 2018

COMMONWEALTH OF PENNSYLVANIA
v.
JAY EDWIN HORNING Appellant

          Appeal from the Judgment of Sentence July 12, 2017 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0000777-2016, CP-36-CR-0000778-2016

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

          OPINION

          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 pre-sentence 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.2d 1189 (Pa. 2017). Because this issue presents a ...


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