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Mandatory Minimum Sentence Does Not Apply to "Failure to Register"

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The mandatory minimum sentence provided in 42 Pa.C.S. 9718.4 for failure to register is unconstitutional.

In Commonwealth v. Blackney, --- A.3d ----, 2016 WL 7322797, 2016 PA Super 287 (Dec. 16, 2016), our Superior Court determined that the mandatory minimum provisions of 42 Pa.C.S. Section 9718.4, requiring a mandatory minimum sentence for a second or subsequent offense of failing to register as a sex offender, is unconstitutional.

The relevant provision provides as follows:

(a) Mandatory sentence.-Mandatory sentencing shall be as follows:

(2) Sentencing upon conviction for a second or subsequent offense shall be as follows:

(i) Not less than five years for an individual who:

(A) is subject to section 9799.13 and must register for a period of 15 or 25 years or life under section 9799.15 or a similar provision from another jurisdiction; and

(B) violated 18 Pa.C.S. § 4915.1(a)(1) or (2).

(b) Proof at sentencing.-The provisions of this section shall not be an element of the crime, and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine by a preponderance of the evidence if this section is applicable.

The Court stated as follows: "In the present case, Appellant argues, and the Commonwealth concedes, that Wolfe requires this Court to deem section 9718.4 unconstitutional. We agree. Under not only Wolfe, but also Hopkins, Newman, and our Supreme Court's per curiam order in Pennybaker, it is clear that the 'proof at sentencing' provision set forth in section 9718.4(b) violates the rule announced in Alleyne, and that it is not severable from the remainder of the statute. Therefore, we hold that 42 Pa.C.S. § 9718.4 is unconstitutional in its entirety."

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