HomeMy WebLinkAboutCP-21-CR-1225-2008
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
DANIEL EVAN CLARK : CP-21-CR-1225-2008
IN RE: POST-SENTENCE MOTION
OPINION AND ORDER OF COURT
Bayley, J., April 16, 2009:--
On March 31, 2009, defendant, Daniel Evan Clark, was sentenced as follows:
On Count 5, 124 subcounts of sexual abuse of children,
possession of child pornography
, on Subcount A, sentence is that you
pay the costs of prosecution, provide a DNA sample, and undergo
imprisonment in the Cumberland County Prison for a term of not less than
three months or more than eighteen months, with credit for two days
served. Defendant is to stand committed. Work release is authorized.
You are eligible for a reentry plan at any time. On the remaining 123
subcounts, sentence is that you pay the costs of prosecution.
On Count 3, 125 subcounts of criminal use of
communication facility, using a computer to possess and store child
pornography
, on Subcount A, sentence is that you pay the costs of
prosecution. The computer is forfeited to the Commonwealth of
Pennsylvania. On the remaining 124 subcounts, sentence is that you pay
the costs of prosecution.
On Count 1, sexual abuse of children, knowing
dissemination of child pornography
, sentence is that you pay the costs
of prosecution.
On Count 2, sexual abuse of children, possession of
child pornography
, sentence is that you pay the costs of prosecution
undergo a lifetime Megan's registration requirement
and .
On Count 4, sexual abuse of children, knowing
dissemination of child pornography
, 124 subcounts, on each subcount,
sentence is that you pay the costs of prosecution.
(Emphasis added.)
CP-21-CR-1225-2008
The 124 subcounts in Count 5 and the one count in Count 2, for sexual abuse of
children, possession of child pornography, involved images of 125 different children,
each one in violation of 18 Pa.C.S. Section 6312(d). The 124 subcounts in Count 4
and the one count in Count 1, for sexual abuse of children, knowing dissemination of
1
child pornography, were all in violation of 18 Pa.C.S. Section 6312(c). Thus,
defendant has 250 convictions for offenses involving 125 separate images of child
pornography in violation of Section 6312 of the Crimes Code.
All of the images of child pornography that formed the counts and subcounts for
which defendant pled guilty and was sentenced were found on his computer when it
was seized. Defendant filed a timely post-sentence motion in which he seeks a
modification in the sentence to delete the lifetime Megan’s Law registration and replace
it with a ten year registration.
et
Megan’s Law II is set forth in the Judicial Code at 42 Pa.C.S. Section 9795.1
seq.
Section 9795.1(a)(1) provides that persons convicted of violating the Crimes
Code at 18 Pa.C.S. § 6312 shall be required to register with the Pennsylvania State
Police for a period of ten years. Section 9795.1 provides:
(b) Lifetime registration.—
The following individuals shall be subject to
lifetime registration:
two or more convictions of any of
(1)An individual with
the offenses set forth in subsection (a)
.
__________
1
The 125 subcounts in Count 3, criminal use of a communication facility, using a
computer to process and store child pornography, were all in violation of 18 Pa.C.S.
Section 7512.
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CP-21-CR-1225-2008
(Emphasis added.)
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CP-21-CR-1225-2008
The Commonwealth maintains that the multiple convictions for offenses in
violation of Section 6312 of the Crimes Code required the imposition of a lifetime
registration under Section 9795.1(b)(1) of the Judicial Code. Defendant maintains that
his convictions for those offenses, which arose from 125 separate images found on his
computer when it was seized, should be counted as one conviction for a Megan’s Law
registration under Section 9795.1(a)(1) of the Judicial Code.
Commonwealth v. Merolla
In , 909 A.2d 337 (Pa. Super. 2006), the defendant
entered pleas at the same time to two counts of indecent assault and one count of
statutory sexual assault involving three different victims. The issue was whether the
convictions to the two counts of indecent assault constituted multiple convictions or a
single conviction for the purposes of Section 9795.1 of the Judicial Code. The Superior
Court of Pennsylvania concluded that the convictions constituted multiple convictions
for the purposes of Section 9795.1 of the Judicial Code, thereby requiring a lifetime
registration.
Commonwealth v. Davidson,
In 938 A.2d 198 (Pa. 2007), the defendant’s
computer was seized and he was convicted of twenty-eight counts of sexual abuse of
children under Section 6312(d) of the Crimes Code. He was given separate sentences
for each of the twenty-eight counts. On appeal, he challenged the legality of being
tried for multiple counts and the propriety of being separately sentenced on each count.
He argued that the trial court erred in converting a single act of possession into twenty-
eight possessory offenses based solely on the number of images seized. In rejecting
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CP-21-CR-1225-2008
this argument, the Supreme Court of Pennsylvania concluded:
[a] plain reading of the statute makes it apparent that the General
Assembly intended possession of each pornographic image as a discrete
and separate criminal act under Section 6312(d). Appellant’s offenses do
not represent a single criminal act, and therefore his multiple criminal acts
support his multiple convictions and sentences.
Merola
Defendant herein, as in , pled guilty at the same time to multiple
Davidson,
violations of a Megan’s Law offense. As in those multiple violations of
defendant herein arose out of the seizure of multiple images of child pornography
Davidson
recovered as a result of the seizure of a computer. In , the Supreme Court
held that the defendant was subject to separate sentences for each offense. Likewise,
sub judice,
in the case the multiple offenses constituted separate convictions.
Therefore, this court was required to impose a lifetime Megan’s Law registration
requirement under Section 9795.1(b)(1) of the Judicial Code because defendant has
been convicted of “two or more offenses under 18 Pa.C.S. Section 6312.”
ORDER OF COURT
AND NOW, this day of April, 2009, the post-sentence motion of
IS DISMISSED.
defendant,
By the Court,
Edgar B. Bayley, J.
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CP-21-CR-1225-2008
Christylee Peck, Esquire
For the Commonwealth
Frank C. Sluzis, Esquire
2000 Linglestown Road
Suite 106
Harrisburg, PA 17110
For Defendant
:sal
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COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
DANIEL EVAN CLARK : CP-21-CR-1225-2008
IN RE: POST-SENTENCE MOTION
ORDER OF COURT
AND NOW, this day of April, 2009, the post-sentence motion of
IS DISMISSED.
defendant,
By the Court,
Edgar B. Bayley, J.
Christylee Peck, Esquire
For the Commonwealth
Frank C. Sluzis, Esquire
2000 Linglestown Road
Suite 106
Harrisburg, PA 17110
For Defendant
:sal