J-S46021-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL BIENERT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 198 WDA 2023

Appeal from the Judgment of Sentence Entered January 6, 2023

In the Court of Common Pleas of Bedford County Criminal Division at 

No(s): CP-05-CR-0000174-2022

BEFORE: DUBOW, J., MURRAY, J., and SULLIVAN, J.

MEMORANDUM BY MURRAY, J.: FILED: February 13, 2024

Michael Bienert (Appellant) appeals from the judgment of sentence 

imposed following his guilty plea to ten counts of sexual abuse of children,

1

based on his possession of child pornography. After review, we affirm.

On September 12, 2022, Appellant pled guilty to ten counts of sexual 

abuse of children, graded as second-degree felonies. As part of the plea, 

Appellant acknowledged possessing ten images of child pornography, which 

included depictions of children under the age of 10 or who were prepubescent. 

N.T., 9/12/22, at 24. The parties did not agree on a specific sentence. 

Instead, the Commonwealth agreed to recommend concurrent sentences. Id.

at 3-4. The parties also discussed the registration periods Appellant would be 

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1 18 Pa.C.S.A. § 6312(d).
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subject to under the Sexual Offender Registration and Notification Act 

(SORNA), either as a Tier 1 offender or as a sexually violent predator (SVP).

2

 

Id. at 4. 

On the same day of Appellant’s plea, the trial court ordered completion 

of a pre-sentence investigation report (PSI). The trial court also directed the 

Sexual Offenders Assessment Board (SOAB) to assess whether Appellant 

meets the criteria for classification as an SVP. The SOAB subsequently opined 

Appellant was not an SVP. On January 6, 2023, the trial court sentenced 

Appellant to concurrent prison terms of 3-10 years, with credit for time served. 

The court also notified Appellant of his 15-year sex offender registration and 

reporting requirements as a Tier I offender under SORNA.

Appellant filed a timely post-sentence motion to reconsider his sentence, 

emphasizing it excessively deviated from the aggravated range of the 

sentencing guidelines. Appellant also sought to withdraw his guilty plea and 

proceed to trial. Finally, Appellant requested a stay of his SORNA registration

requirements pending the Pennsylvania Supreme Court’s review of 

Commonwealth v. Torsilieri, Chester County No. 1570 CR 2016 (Pa. Com. 

Pl. Crim. Div. Chester County, Aug. 23, 2022) (decision following remand from 

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2 See 42 Pa.C.S.A. §§ 9799.10-9799.41.
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Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020)).

3

 After a hearing,4

the trial court denied Appellant’s post-sentence motion. This timely appeal 

followed. Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant raises the following issues for review:

I. Whether the trial court abused its discretion in imposing an 

aggregate aggravated range sentence of three (3) to ten (10) 

years of incarceration in a state prison by failing to appropriately 

take into consideration mitigating factors such as Appellant’s 

advanced age and prior record score of one (1) from an aged 

conviction in 1976, by exhibiting bias, ill will and prejudice that is 

so manifestly excessive and excessively punitive in nature, and by 

imposing a sentence that violates the protections provided against 

cruel punishment pursuant to the Eighth Amendment of the United 

States Constitution and Article 1, Section 13 of the Pennsylvania 

Constitution?

II. Whether t[he] trial [court] committed err[or] by denying 

Appellant’s request that the application of SORNA requirements 

be stayed pending appellate review of the decision of the 

Honorable Allison Bell Royer in [] Torsilieri?

Appellant’s Brief at 7-8 (capitalization altered).

Appellant first challenges the discretionary aspects of his sentence,5 see 

id. at 15-24, from which there is no automatic right to appeal.

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3 Succinctly, Torsilieri challenges the constitutionality of SORNA’s registration 

and notification requirements. We discuss Torsilieri further infra. 

4 Appellant abandoned his motion to withdraw guilty plea during the postsentence hearing. N.T., 2/9/23, at 2.

5 Because the parties did not bargain for a specific sentence when negotiating 

Appellant’s guilty plea, Appellant is not precluded from challenging the 

discretionary aspects of his sentence on appeal. Commonwealth v. 

Heaster, 171 A.3d 268, 271 (Pa. Super. 2017) (concluding that appellant 

(Footnote Continued Next Page)
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Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010). 

Instead, an appellant challenging the discretionary aspects of his sentence 

must invoke this Court’s jurisdiction by satisfying a four-part test:

We conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 

and 903; (2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify sentence, see 

Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect, 

Pa.R.A.P. 2119(f); and (4) whether there is a substantial question 

that the sentence appealed from is not appropriate under the 

Sentencing Code.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some 

citations omitted).

Appellant filed a timely notice of appeal, preserved this claim in his postsentence motion, and included in his brief a separate Pa.R.A.P. 2119(f) 

statement. See Appellant’s Brief at 14. Additionally, Appellant’s claim that 

the trial court imposed a manifestly excessive sentence, beyond the 

sentencing guidelines, and without proper consideration of mitigating factors, 

raises a substantial question. See Commonwealth v. Caldwell, 117 A.3d 

763, 770 (Pa. Super. 2015) (en banc) (“[A]n excessive sentence claim—in 

conjunction with an assertion that the [trial] court failed to consider mitigating 

factors—raises a substantial question.” (citation omitted)); see also

Commonwealth v. Eby, 784 A.2d 204, 206 (Pa. Super. 2001) (“A claim that 

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could challenge the discretionary aspects of his sentence after entering a 

“hybrid” guilty plea, i.e., a plea that negotiated a particular aspect of the 

sentence, but did not include a sentencing agreement).
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the sentencing court imposed an unreasonable sentence by sentencing outside 

the guidelines presents a ‘substantial question’ for our review.”). We therefore 

turn to the merits of Appellant’s claim.

The standard by which we review a challenge to the discretionary 

aspects of sentence is well settled:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. In this context, an abuse 

of discretion is not shown merely by an error in judgment. Rather, 

the appellant must establish, by reference to the record, that the 

sentencing court ignored or misapplied the law, exercised its 

judgment for reasons of partiality, prejudice, bias or ill will, or 

arrived at a manifestly unreasonable decision.

Commonwealth v. Salter, 290 A.3d 741, 748 (Pa. Super. 2023) (citation 

omitted).

The Sentencing Code requires the trial court to “follow the general 

principle that the sentence imposed should call for confinement that is 

consistent with the protection of the public, the gravity of the offense as it 

relates to the impact on the life of the victim and on the community, and the 

rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). The trial court 

must also consider the sentencing guidelines. See id.; see also 

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (stating 

that “[w]hen imposing a sentence, the [trial] court is required to consider the 

sentence ranges set forth in the Sentencing Guidelines....”). 

“In every case in which the court imposes a sentence for a felony ... the 

court shall make as a part of the record, and disclose in open court at the time 
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of sentencing, a statement of the reason or reasons for the sentence 

imposed.” 42 Pa.C.S.A. § 9721(b); see also Commonwealth v. Mouzon, 

812 A.2d 617, 620-21 (Pa. 2002) (plurality). In considering these factors, 

“the court should refer to the defendant’s prior criminal record, age, personal 

characteristics and potential for rehabilitation.” Commonwealth v. 

McClendon, 589 A.2d 706, 712 (Pa. Super. 1991) (internal citations and 

quotation marks omitted). 

During the sentencing hearing, the parties agreed that Appellant’s prior 

record score is 1, and the offense gravity score for sexual abuse of children is 

7. N.T., 1/6/23, at 19-20. The sentencing guidelines recommend a minimum 

sentence of 9-16 months in prison, plus or minus 6 months for aggravating or 

mitigating circumstances. 204 Pa. Code § 303.16(a). Thus, Appellant’s 

sentences of 3-10 years in prison are beyond the aggravated range of the 

sentencing guidelines.

A sentencing court may deviate from the sentencing guidelines so long 

as it explains its reasons for doing so on the record. See Commonwealth v. 

Garcia-Rivera, 938 A.2d 777, 780 (Pa. Super. 2009). “[T]he guidelines have 

no binding effect, in that they do not predominate over individualized 

sentencing factors....” Commonwealth v. Holiday, 954 A.2d 6, 11 (Pa. 

Super. 2008). When a court imposes a sentence outside the sentencing 

guidelines, we consider whether the sentence is unreasonable. See id. 
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Here, the Commonwealth requested a standard-range sentence. N.T., 

1/6/23, at 20. However, the Commonwealth also pointed to statements 

Appellant made during his PSI interview that “push back against [Appellant] 

accepting responsibility to some extent.” Id. at 21. Defense counsel 

requested a standard- or mitigated-range sentence, citing the possibility that 

Appellant would face deportation. Id. at 23; see also id. at 24 (stating that 

Appellant was born in Germany but has not lived there since he was a child). 

Defense counsel also noted that Appellant was 73 years old, and Appellant’s 

only prior offense was several decades old. Id. at 24. 

In imposing a sentence beyond the sentencing guidelines, the trial court 

explained as follows:

I do have the guidelines range of 9 to 16 [months], plus or 

minus 6. When I reviewed the PSI, ... the big things that stuck 

out here from the PSI are from the [Appellant’s] version of the 

events.

....

[Appellant’s] version and his statements in the PSI are 

pretty alarming. ... So, the main part here I’m not going to read 

all of it. But he states that: ... I grew up in Europe. Obviously in 

Germany where sex is not a problem. And is expressed differently 

than it is in America. No one in Europe is in the closet about their 

sexuality. I believe and follow the [Freikörperkultur (FKK)], also 

known[] as the free baldy culture, which is anyone who does not, 

[is] not ashamed of being nude. An example of that is nudist 

beaches where everyone is completely naked ... and isn’t ashamed 

to be seen. I found on the Internet pictures from the FKK and all 

countries. I would look up images every couple of weeks. So, it 

wasn’t a daily thing that I was obsessed with.

Here’s where the statements become very alarming for this 

court. [Appellant] states[,] ... the images I would look up were 
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simple pictures that I found on Bin.dot of nudist colonies that were 

only of frontal nudes, nothing crazy.

Now, the problem is the description of these images being 

nothing crazy is hard for this court to accept because these are 

children under the age of 10 years old. He goes on to say he’s 

not interested in seeing kids on kids which I assume for him to 

mean ... performing sexual acts on one another, or adults on kids, 

just frontal nudes of anyone male, female, or child.

That’s highly problematic here. The next sentence is: I do 

not see anything wrong with this since it was simply on the 

Internet and easy to access. He ... goes on to say: I also ... don’t 

think I deserve to be in jail because I was a good citizen in America 

and caused no one any harm.

So the ... elephant in the room here is that [Appellant] ... is 

convicted now of looking up child pornography of kids less than 

10 years of age is saying in the PSI, he doesn’t think there’s 

anything wrong with it.

And I have a high degree of concern that [Appellant is] going 

to recidivate. He’s just going to re-offend, and pretty quickly I 

would think.

Id. at 27-30 (some capitalization and paragraph breaks altered; italics 

added). 

The trial court acknowledged Appellant’s guilty plea but voiced doubts 

about whether Appellant truly accepted responsibility. Id. at 30-31; see also 

id. at 31 (“Because even though [Appellant] is saying that he’s sorry this 

happened, I think he’s more sorry that he spent time in jail on it.”). Further, 

the trial court explained a standard-range sentence would not be appropriate 

because “it’s one of the few cases where I have a [d]efendant who is 

essentially telling me he’s going to re-offend.” Id. at 32. The court explicitly 
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stated its intention to impose a sentence beyond the aggravated range and 

reiterated:

I don’t do that lightly.... I am [deviating from the guidelines] 

today. It is extremely rare where I have a [d]efendant telling me 

in the PSI. Especially, especially with child pornography. He’s 

telling me, one, what I did wasn’t wrong. And he’s giving me [an] 

indication he’s going to do it again.

Id. at 34 (paragraph break omitted).

The record reveals that the trial court carefully considered the 

sentencing guidelines and the general standards articulated in section 9721(b) 

of the Sentencing Code. The trial court also contemplated all relevant 

sentencing factors and the information contained in the PSI. See

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (explaining 

that when the trial court has the benefit of a PSI, “we can assume the 

sentencing court was aware of relevant information regarding the defendant’s 

character and weighed those considerations along with mitigating statutory 

factors.”). Moreover, the court adequately articulated its reasons for imposing 

a sentence outside the guidelines. See Garcia-Rivera, 938 A.2d at 780. On 

review, we cannot conclude Appellant’s sentence is unreasonable. This claim 

merits no relief.

In his second issue, Appellant asserts the trial court erred by denying 

his request to stay application of SORNA’s registration requirements pending 

the Pennsylvania Supreme Court’s review in Torsilieri. Appellant’s Brief at 
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24. According to Appellant, “a high[] likelihood exists that SORNA will be 

found to be unconstitutional by the Pennsylvania Supreme Court.” Id. at 26.

This Court has summarized the relevant background of Torsilieri as 

follows:

[I]n July of 2018, “the Chester County Court of Common Pleas 

declared Subchapter H of SORNA unconstitutional as violative of 

several provisions of both the United States and Pennsylvania 

Constitutions.” Commonwealth v. Torsilieri, 659 Pa. 359, 232 

A.3d 567, 574-75 (2020). The Commonwealth appealed the 

decision to the Pennsylvania Supreme Court. See id. However, 

upon the record before it, the Court “was unable to conclude ... 

whether the defendant had significantly undermined the validity 

of the legislative findings supporting Revised Subchapter H’s 

registration and notification provisions.” Id. at 585. Therefore, 

the Supreme Court remanded the case to the trial court “to 

provide both parties an opportunity to develop arguments and 

present additional evidence in determining whether the defendant 

has refuted the relevant legislative findings supporting the 

challenged registration and notification provision of Revised 

Subchapter H.” Id. at 596.

Upon remand, the trial court conducted an evidentiary 

hearing in June of 2021, “at which both parties presented 

conflicting expert testimony.” See 97 MAP 2022, 

Commonwealth’s Statement of Jurisdiction, 9/19/22, at 4. 

Thereafter, on August 23, 2022, the trial court entered an order 

once again concluding that Revised Subchapter H of SORNA is 

unconstitutional, and granting the defendant’s supplemental

motion to bar application of SORNA. See id. at 1. The 

Commonwealth timely appealed to the Supreme Court, where the 

case is now pending. See id.

Commonwealth v. Faison, 297 A.3d 810, 836-37 (Pa. Super. 2023) 

(footnotes and brackets omitted).6

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6 Our Supreme Court heard argument in Torsilieri in May 2023. The 

Torsilieri Court has not yet rendered its decision.
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In Faison, the appellant requested that the court stay his sexual 

offender registration requirements under SORNA, pending the Supreme 

Court’s decision in Torsilieri. See id. at 836. This Court expressly rejected

the appellant’s claim, stating, “Subchapter H has not been declared 

unconstitutional by the Pennsylvania Supreme Court, and legislative 

enactments are presumed to be constitutional.” Id. at 837 (citation and 

quotation marks omitted). We also observed that compliance with the 

registration requirements would not take effect until the appellant was 

released from prison—which, in the Faison appellant’s case, would be at least 

25 years. Id. Finally, this Court stated, “Should the Supreme Court declare 

Subchapter H unconstitutional in the future, [the a]ppellant may seek relief at 

that time.” Id. (citing Commonwealth v. Lacombe, 234 A.3d 602, 617-18 

(Pa. 2020) (SORNA claims need not be raised pursuant to the Post Conviction 

Relief Act, and thus, are not subject to the Act’s time constraints)); see also 

Commonwealth v. Villanueva-Pabon, 304 A.3d 1210, 1218 n.13 (Pa. 

Super. 2023) (stating that the appellant’s challenge to SORNA’s registration 

requirements could be raised again in the event our Supreme Court declares 

Subchapter H unconstitutional).

Instantly, we apply the reasoning set forth in Faison. We emphasize 

the Torsilieri Court did not reach the merits of the underlying constitutional 

claims. We discern no error or abuse of discretion in the trial court’s denial of 

a stay. We reiterate that if our Supreme Court ultimately declares Subchapter 
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H unconstitutional in Torsilieri, Appellant may seek relief at that time. See 

Faison, 297 A.3d at 837. However, Appellant is not entitled to relief at this 

juncture.

Judgment of sentence affirmed.

 2/13/2024