J-S41015-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DALE WOODARD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 680 WDA 2023

Appeal from the Judgment of Sentence Entered March 30, 2023

In the Court of Common Pleas of Somerset County 

Criminal Division at No(s): CP-56-CR-0000164-2021

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED: February 26, 2024

Dale Woodard appeals from the judgment of sentence entered following 

his conviction of indecent exposure. Upon careful review, we affirm the 

conviction; however, we vacate the judgment of sentence and remand for 

resentencing.

On April 1, 2021, the Commonwealth filed a criminal information against 

Woodard charging him with one count each of involuntary deviate sexual 

intercourse, indecent assault, and indecent exposure1related to conduct 

perpetrated against a juvenile relative. In an open plea agreement entered on 

October 14, 2022, Woodard was permitted to plead guilty to indecent 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. §§ 3123, 3126, and 3127.
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exposure. Subsequently, the Commonwealth nolle prossed the remaining 

charges.

Sentencing was scheduled for December 27, 2022, and a presentence 

report (“PSI”) was ordered and prepared. Prior to the sentencing hearing, 

Woodard objected to the computation of his prior record score (“PRS”) as 

presented in the PSI. The trial court continued sentencing to allow Woodard 

to compile documents and address the calculation of his PRS based upon outof-state prior offenses.2 Woodard proceeded to sentencing on March 30, 2023, 

and received a sentence of twenty-one to sixty months of incarceration. He 

then filed a post-sentence motion, which the trial court denied. This timely 

appeal followed.3

Woodard presents three legal arguments for our review: whether the 

trial court erred in calculating his PRS for sentencing purposes; whether the 

trial court abused its discretion by inaccurately stating, without sufficient 

evidence, that he is a sexually violent predator (“SVP”); and whether the trial 

____________________________________________

2 Specifically, Woodard sought to acquire court documents from New 

Hampshire for convictions from 1998 and 2005.

3 We note with extreme displeasure the Commonwealth’s failure to file an 

appellee’s brief. “An appellee is required to file a brief that at minimum must 

contain ‘a summary of argument and the complete argument for appellee.’” 

Commonwealth v. Pappas, 845 A.2d 829, 835 (Pa. Super. 2004) (quoting 

Pa.R.A.P. 2112). In Pappas, the panel referred to the Commonwealth’s failure 

to file a proper appellee’s brief as “unacceptable.” Id. We echo that opinion 

and remind the Commonwealth of its obligation to file an appellee’s brief in 

future appeals.
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court abused its discretion by relying on inappropriate factors in fashioning 

Woodard’s sentence. See Appellant’s Brief, at 14, 36, 38.

Woodard’s first issue contends that the trial court erred when it utilized 

a Repeat Felon (RFEL) category for his prior record score, when in fact it 

should have been a “2”. Id. at 2.

“It is well-settled that a challenge to the calculation of a [PRS] goes to 

the discretionary aspects, not legality, of sentencing.” Commonwealth v. 

Shreffler, 249 A.3d 575, 583 (Pa. Super. 2021) (citation omitted). There is 

no absolute right to appeal the discretionary aspects of a sentence. See

Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa. Super. 2006). Rather, 

where an appellant challenges the discretionary aspects of a sentence, the 

appeal should be considered a petition for allowance of appeal. See 

Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007).

As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. 

Super. 2010):

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, 42 

Pa.C.S.A. § 9781(b).
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Moury, 992 A.2d at 170 (citation and brackets omitted).

Where an appellant fails to comply with Pa.R.A.P. 2119(f) and the 

Commonwealth objects, the issue raised by the appellant is waived for 

purposes of review. See Commonwealth v. Farmer, 758 A.2d 173, 182 (Pa. 

Super. 2000). However, a failure to include the Pa.R.A.P. 2119(f) statement 

does not automatically waive an appellant’s argument; rather, we only are 

precluded from reaching the merits of the claim when the Commonwealth 

lodges an objection to the omission of the statement. See Commonwealth 

v. Roser, 914 A.2d 447, 457 (Pa. Super. 2006). See also Commonwealth 

v. Lutes, 793 A.2d 949, 964 (Pa. Super. 2002) (holding that if the appellant 

fails to comply with Pa.R.A.P 2119(f), the Superior Court may entertain a 

discretionary sentencing claim if the Commonwealth does not object to the 

appellant’s failure to comply with Pa.R.A.P. 2119(f)). Almost every published 

decision by the Superior Court has held that the issue is not waived when the 

Commonwealth fails to object to the omission of the Rule 2119(f) statement. 

Herein, the first two requirements of the four-part test are met because 

Woodard brought a timely appeal and raised the challenge in his postsentence motion. However, Woodard failed to include in his appellate brief the 

necessary separate concise statement of the reasons relied upon for allowance 

of appeal pursuant to Pa.R.A.P. 2119(f). Nevertheless, because the 

Commonwealth did not file an advocate’s brief in this matter, it has failed to 
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object to this error by Woodard. Therefore, we will not consider the issue to 

be waived due to Woodard’s omission of the Rule 2119(f) statement. 

Accordingly, we next determine whether Woodard raises a substantial 

question requiring us to review the discretionary aspects of the sentence 

imposed by the trial court.

Woodard argues that the trial court erroneously calculated his PRS. See

Appellant’s Brief, at 8-10, 14-36. We have previously held that a claim that a 

trial court miscalculated an appellant’s PRS score raises a substantial question. 

See Commonwealth v. Spenny, 128 A.3d 234, 242 (Pa. Super. 2015). 

Consequently, because Woodard has raised a substantial question, we will 

address the merits of his claim.

Our standard of review is one of abuse of discretion. As such, we 

acknowledge that 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. See Commonwealth v. Shugars, 895 A.2d 

1270, 1275 (Pa. Super. 2006). An abuse of discretion occurs where “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. Blount, 207 A.3d 925, 934-35 

(Pa. Super. 2019) (citation omitted).

We now consider Woodard’s argument that the trial court improperly 

determined that his PRS was RFEL. See Appellant’s Brief, at 14-36. 
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Essentially, Woodard claims that the trial court incorrectly calculated his PRS 

based upon several prior out-of-state offenses. Specifically, he contends that 

the four New Hampshire crimes for which he was sentenced in August 1998 

should combine to a maximum of two PRS points. He also posits that the New 

Hampshire crime for which he was sentenced in August 2005 is the equivalent 

of a third-degree misdemeanor in Pennsylvania and not the equivalent of a 

second-degree felony under Pennsylvania law.

4

When sentencing a defendant convicted of a felony or misdemeanor, the 

trial court must consider the sentencing guidelines for each conviction, which 

requires the court to establish the offense gravity score and the defendant’s 

PRS. See Commonwealth v. Spenny, 128 A.3d 234, 242 (Pa. Super. 2015).

The [PRS] is based on the number and type of prior convictions 

the defendant has on his or her criminal record. 204 Pa. Code § 

303.4(a). Each prior conviction is given a point value ranging 

between one and four points. See generally 204 Pa. Code §§ 

303.7, 303.15. Sections 303.7 and 303.15 set forth the point 

value for every Pennsylvania criminal offense, but generally 

speaking (with some exceptions not relevant here), first-degree 

felony (“F1”) convictions are either three- or four-point offenses, 

F2 convictions are two-point offenses and F3 convictions are onepoint offenses.

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4 As a result of the sentencing court’s use of a second-degree felony equivalent 

for the August 2005 conviction, two (2) points were added to Woodard’s prior 

record score. If the trial court had used a third-degree misdemeanor, no 

points would have been added to the prior record score. See 204 Pa. Code §§ 

303.7(a)(3), (5).
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Id. Essentially, “[a] defendant who has prior convictions of F1s and F2s that 

total six or more points is separately classified as a RFEL, which further 

increases the guideline sentence.” Id. (citations omitted).

In addition, we are mindful of the following:

If a defendant was sentenced for a single conviction at a 

prior judicial proceeding, that conviction is counted in the 

calculation of a defendant’s [PRS]. If a defendant was sentenced 

for multiple convictions at a single sentencing proceeding, the 

most serious offense is included in the [PRS] calculation, as is any 

other offense for which the defendant received consecutive 

sentences. Prior convictions for which the trial court ordered the 

sentences to run concurrently with the most serious offense at a 

single judicial sentencing proceeding are not included in the 

calculation of the [PRS].

Id. (citations omitted). The guidelines do not impose any restriction on the 

computation of a PRS based on convictions arising from separate judicial 

proceedings. See Commonwealth v. Janda, 14 A.3d 147, 165 (Pa. Super. 

2011).

Our sentencing guidelines provide that, for defendants who have outof-state convictions, those offenses are to be scored as “a conviction for the 

current equivalent Pennsylvania offense.” 204 Pa. Code § 303.8(f)(1). In 

addition, we observe:

... [When] determining the Pennsylvania equivalent statute for a 

prior, out-of-state conviction for [PRS] purposes, courts must 

identify the elements of the foreign conviction and on that basis 

alone, identify the Pennsylvania statute that is substantially 

identical in nature and definition to the out-of-state offense. 

[Therefore,] we must compare the elements of the foreign offense 

in terms of classification of the conduct proscribed, its definition 

of the offense, and the requirements for culpability to determine 

the Pennsylvania equivalent offense.
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Spenny, 128 A.3d at 250 (citations and quotation marks omitted). Implicit in 

this analysis is the understanding that we will consider the out-of-state statute 

in effect at the time of the commission of the offense. See Commonwealth 

v. Vandyke 157 A.3d 535, 541 (Pa. Super. 2017).

We further observe that “[o]nce the court conducts an analysis of the 

elements of the foreign offense and finds the Pennsylvania offense that ‘is 

substantially identical in nature and definition’ to the out-of-state statute, the 

underlying record of the foreign offense may need to be considered for grading 

purposes.” Spenny, 128 A.3d at 250 (citations omitted). However, if “there 

is no current equivalent Pennsylvania offense, [we must] determine the 

current equivalent Pennsylvania grade of the offense based on the maximum 

sentence permitted, and then apply §303.8(d)(2).”5 204 Pa. Code §

303.8(f)(3).

Here, the sentencing court was faced with a difficult job in assessing 

Woodard’s prior record score from out-of-state jurisdictions. In addressing this 

calculation, the trial court did not elaborate on its analysis of Woodard’s outof-state convictions in compiling Woodard’s PRS for the sentencing guidelines. 

See Trial Court Opinion, 7/10/23, at 1. Rather, in its written opinion, the court 

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5 Section 303.8(d)(2) provides if no current Pennsylvania equivalent offense 

exists and the grading of the conviction is unknown, felonies shall be graded 

as a felony 3 and misdemeanors as other misdemeanor offenses, as identified 

in § 303.7(a)(5). See 204 Pa. Code 303.8(d)(2).
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referenced two documents as support for its conclusion that Woodard’s PRS is 

RFEL and offered no additional explanation other than its adoption of the two 

referenced documents. Specifically, the trial court stated, “[T]his [c]ourt 

based its March 30, 2023 sentencing order on the information contained in 

the [PSI,] which is attached hereto and made a part hereof as Exhibit ‘A’, and 

the information contained in Prior Record Score Calculation Memorandum, 

dated March 8, 2023 . . . which is attached hereto and made a part hereof as 

Exhibit ‘B’.” Id.

The Prior Record Score Calculation Memorandum notes that “[t]his 

officer was able to determine the Pennsylvania equivalent under [section 

303.8](f)(1) and did not find it necessary to resort to section [303.8](f)(3) ... 

.” Id. at Exhibit B. While not specifically noted within the memorandum, the 

probation department, and by reliance, the trial court, believed the equivalent 

to New Hampshire’s Felonious Sexual Assault crime is Pennsylvania’s indecent 

assault statute and the equivalent to New Hampshire’s Aggravated Felonious 

Sexual Assault crime is Pennsylvania’s aggravated indecent assault statute, 

based upon the copies of the New Hampshire statutes attached as exhibits to 

the memorandum.

However, our review of the record establishes that the elements of the 

New Hampshire statutes at issue, NH Rev. Stat. § 632-A:3 Felonious Sexual 

Assault and NH Rev. Stat. § 632-A:2 Aggravated Felonious Sexual Assault, do
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not match our indecent assault statute nor our aggravated indecent assault 

statute. See 18 Pa.C.S. §§ 3125, 3126. 

First, at case 219-1997-CR-00115, Woodard was convicted of § 632-

A:3, Felonious Sexual Assault. See Trial Court Opinion, 7/10/23, Exhibit B 

(New Hampshire Case Summary for 219-1997-CR-00115); Defendant’s 

Memorandum on Sentencing, Exhibit A, at 1.

6 The trial court and Woodard

both compared § 632-A:3 to Pennsylvania’s indecent assault statute. In full, 

§ 632-A:3 provides:

A person is guilty of a class B felony if such person:

I. Subjects a person to sexual contact and causes serious personal 

injury to the victim under any of the circumstances named in RSA 

632-A:2; or

II. Engages in sexual penetration with a person, other than his 

legal spouse, who is 13 years of age or older and under 16 years 

of age where the age difference between the actor and the other 

person is 4 years or more; or

III. Engages in sexual contact with a person other than his legal 

spouse who is under 13 years of age.

IV. (a) Engages in sexual contact with the person, or causes the 

person to engage in sexual contact on himself or herself in the 

presence of the actor, when the actor is in a position of authority 

over the person and uses that authority to coerce the victim to 

submit under any of the following circumstances:

(1) When the actor has direct supervisory or 

disciplinary authority over the victim by virtue of the 

victim being incarcerated in a correctional institution, 

____________________________________________

6 Pagination provided.
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the secure psychiatric unit, or juvenile detention

facility where the actor is employed; or

(2) When the actor is a probation or parole officer or 

a juvenile probation and parole officer who has direct

supervisory or disciplinary authority over the victim 

while the victim is on parole or probation or under 

juvenile probation.

(b) Consent of the victim under any of the circumstances

set forth in this paragraph shall not be considered a defense.

(c) For the purpose of this paragraph, “sexual contact”

means the intentional touching of the person’s sexual or intimate 

parts, including genitalia, anus, breasts, and buttocks, where such 

contact, or the causing of such contact, can reasonably be 

construed as being for the purpose of sexual arousal or 

gratification of the person in the position of authority, or the 

humiliation of the person being touched. 

NH Rev. Stat. § 632-A:3. We cannot be more specific, as nothing provided to 

this Court indicates what subsection of § 632-A:3 Woodard pled guilty to in 

case 219-1997-CR-00115. The indecent assault statute in Pennsylvania 

provides:

(a) Offense defined.—A person is guilty of indecent assault if the 

person has indecent contact with the complainant, causes the 

complainant to have indecent contact with the person or 

intentionally causes the complainant to come into contact with 

seminal fluid, urine or feces for the purpose of arousing sexual 

desire in the person or the complainant and:

(1) the person does so without the complainant’s consent;

(2) the person does so by forcible compulsion;

(3) the person does so by threat of forcible compulsion that 

would prevent resistance by a person of reasonable resolution;

(4) the complainant is unconscious or the person knows that 

the complainant is unaware that the indecent contact is occurring;
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(5) the person has substantially impaired the complainant’s 

power to appraise or control his or her conduct by administering 

or employing, without the knowledge of the complainant, drugs, 

intoxicants or other means for the purpose of preventing 

resistance;

(6) the complainant suffers from a mental disability which 

renders the complainant incapable of consent;

(7) the complainant is less than 13 years of age; or

(8) the complainant is less than 16 years of age and the 

person is four or more years older than the complainant and the 

complainant and the person are not married to each other.

(b) Grading.—Indecent assault shall be graded as follows:

(1) An offense under subsection (a)(1) or (8) is a 

misdemeanor of the second degree.

(2) An offense under subsection (a)(2), (3), (4), (5) or (6) 

is a misdemeanor of the first degree.

(3) An offense under subsection (a)(7) is a misdemeanor of 

the first degree unless any of the following apply, in which case it 

is a felony of the third degree:

(i) It is a second or subsequent offense.

(ii) There has been a course of conduct of indecent 

assault by the person.

(iii) The indecent assault was committed by touching 

the complainant’s sexual or intimate parts with sexual 

or intimate parts of the person.

(iv) The indecent assault is committed by touching the 

person’s sexual or intimate parts with the 

complainant’s sexual or intimate parts.

18 Pa.C.S. § 3126. It is clear that there are different elements in each statute. 

Without knowing what subsection Woodard pled guilty to, we cannot find that 
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there is an equivalent statute in Pennsylvania. As such, we now look at the 

maximum sentence permitted to determine what the equivalent grade is in 

Pennsylvania. See 204 Pa. Code 303.8(f)(3).

New Hampshire lists Felonious Sexual Assault as a “class B felony.” NH 

Rev. Stat. § 632-A:3. Class B felonies have a maximum sentence of 7 years. 

See NH Rev. Stat. §§ 651:2(II)(b), 625:9(III)(a)(2). Therefore, sentences for 

class B felonies are equivalent to those for Pennsylvania’s felony of the third 

degree. 18 Pa.C.S. § 1103(3).

Next, we look at New Hampshire’s Aggravated Felonious Sexual Assault 

found at § 632-A:2:

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I. A person is guilty of the felony of aggravated felonious sexual 

assault if such person engages in sexual penetration with another 

person under any of the following circumstances:

(a) When the actor overcomes the victim through the actual 

application of physical force, physical violence or superior physical 

strength.

(b) When the victim is physically helpless to resist.

____________________________________________

7 Woodard argues in its brief to this Court that he was sentenced on all four 

cases in 1998 to Felonious Sexual Assault under § 632-A:3. See Appellant’s 

Brief at 16-17. However, our review of the record shows a discrepancy 

between the case summaries and the sentencing orders. Compare Trial Court 

Opinion, 7/10/23, Exhibit B (New Hampshire case summaries for 219-1997-

CR-00116, 00117, and 00118) (listing the charge as “Felonious Sexual 

Assault” and the statute as “632-A:3.”); with Defendant’s Memorandum on 

Sentencing, Exhibit A, at 8, 13, 20 (wherein the sentencing orders indicate 

the offense as “Felonious Sexual Assault,” but the statute as “632-A:2.”)

(pagination added for ease of reference).
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(c) When the actor coerces the victim to submit by 

threatening to use physical violence or superior physical strength 

on the victim, and the victim believes that the actor has the 

present ability to execute these threats.

(d) When the actor coerces the victim to submit by 

threatening to retaliate against the victim, or any other person, 

and the victim believes that the actor has the ability to execute 

these threats in the future.

(e) When the victim submits under circumstances involving 

false imprisonment, kidnapping or extortion.

(f) When the actor, without the prior knowledge or consent 

of the victim, administers or has knowledge of another person 

administering to the victim any intoxicating substance which 

mentally incapacitates the victim.

(g) When the actor provides therapy, medical treatment or 

examination of the victim and in the course of that therapeutic or 

treating relationship or within one year of termination of that 

therapeutic or treating relationship:

(1) Acts in a manner or for purposes which are not 

professionally recognized as ethical or acceptable; or

(2) Uses this position as such provider to coerce the 

victim to submit.

(h) When, except as between legally married spouses, the 

victim is mentally defective and the actor knows or has reason to 

know that the victim is mentally defective.

(i) When the actor through concealment or by the element 

of surprise is able to cause sexual penetration with the victim 

before the victim has an adequate chance to flee or resist.

(j) When, except as between legally married spouses, the 

victim is 13 years of age or older and under 16 years of age and:

(1) the actor is a member of the same household as 

the victim; or
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(2) the actor is related by blood or affinity to the 

victim.

(k) When, except as between legally married spouses, the 

victim is 13 years of age or older and under 18 years of age and 

the actor is in a position of authority over the victim and uses this 

authority to coerce the victim to submit.

(l) When the victim is less than 13 years of age.

(m) When at the time of the sexual assault, the victim 

indicates by speech or conduct that there is not freely given 

consent to performance of the sexual act.

(n) When the actor is in a position of authority over the 

victim and uses this authority to coerce the victim to submit under 

any of the following circumstances:

(1) When the actor has direct supervisory or 

disciplinary authority over the victim by virtue of the 

victim being incarcerated in a correctional institution, 

the secure psychiatric unit, or juvenile detention 

facility where the actor is employed; or

(2) When the actor is a probation or parole officer or 

a juvenile probation and parole officer who has direct 

supervisory or disciplinary authority over the victim 

while the victim is on parole or probation or under 

juvenile probation.

Consent of the victim under any of the circumstances set forth in 

subparagraph (n) shall not be considered a defense.

II. A person is guilty of aggravated felonious sexual assault 

without penetration when he intentionally touches whether 

directly, through clothing, or otherwise, the genitalia of a person 

under the age of 13 under circumstances that can be reasonably 

construed as being for the purpose of sexual arousal or 

gratification.

III. A person is guilty of aggravated felonious sexual assault when 

such person engages in a pattern of sexual assault against another 

person, not the actor's legal spouse, who is less than 16 years of 

age. The mental state applicable to the underlying acts of sexual 
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assault need not be shown with respect to the element of 

engaging in a pattern of sexual assault.

IV. A person is guilty of aggravated felonious sexual assault when 

such person engages in sexual penetration as defined in RSA 632-

A:1, V with another person under 18 years of age whom such 

person knows to be his or her ancestor, descendant, brother or 

sister of the whole or half blood, uncle, aunt, nephew, or niece. 

The relationships referred to herein include blood relationships 

without regard to legitimacy, stepchildren, and relationships of 

parent and child by adoption.

NH Rev. Stat. § 632-A:2. Again, we cannot be more specific than referencing 

the entire statute, as none of the records provided to this Court indicate what 

subsection was the basis of Woodard’s plea.

The trial court found that the equivalent offense in Pennsylvania is 

aggravated indecent assault, 18 Pa.C.S. § 3125, and graded the equivalent 

offense as a felony of the first degree.8It is possible that Woodard pled guilty 

under § 632-A:2(II) as quoted above, which does not require penetration.

See NH Rev. Stat. §632-A:2(II). As such, the elements of § 632-A:2 are not 

the equivalent of aggravated indecent assault, which requires “penetration, 

however slight.” 18 Pa.C.S. § 3125(a). Without knowing which subsection was 

____________________________________________

8 Notably, the adult probation department, and the trial court, must have

relied upon Woodard’s provided documents to create the equivalent offense 

of aggravated indecent assault graded as a felony of the first degree. The only 

way to grade aggravated indecent assault as a felony of the first degree is if 

the victim is under 13 years of age. See 18 Pa.C.S. § 3125(b), (c). The case 

summaries which the adult probation department relied on do not include any 

facts regarding the conviction. However, Woodard provided the indictments, 

which do include the age of the victim.
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the basis of Woodard’s plea, we cannot agree that there is a Pennsylvania 

equivalent offense. 

As explained above, New Hampshire has a traditional breakdown of the 

grading of offenses and the maximums allowed. See NH Rev. Stat. §§ 651:2, 

625:9. However, aggravated felonious sexual assault has its own penalty. See 

NH Rev. Stat. § 632-A:10-a. The maximum term for aggravated felonious 

sexual assault is 20 years.9 Id. The Pennsylvania equivalent is a felony of the 

first degree. 18 Pa.C.S. § 1103(1).

Finally, we turn to Woodard’s 2005 New Hampshire conviction in the 7th

Circuit District Division of Rochester at case number 471-2005-CR-03950. The 

New Hampshire case summary on the matter indicates a conviction under NH 

Rev Stat § 651-B:5, which at the time of the conviction was titled “Change of 

Name/Alias/Address; Duty to Inform” and was graded as a “Class A 

Misdemeanor.” See Trial Court Opinion, 7/10/23, at Exhibit B (New Hampshire 

Case Summary for 471-2005-CR-039050). The trial court believed the 

equivalent Pennsylvania offense is found at 18 Pa.C.S. § 4915.1, failure to 

comply with registration requirements. Section 4915.1, unless certain 

exceptions are present, is graded as a felony of the second degree. On the 

____________________________________________

9 Although not relevant here, New Hampshire does provide for a higher 

sentence for second or subsequent offenses. See NH Rev. Stat. § 632-A:10-

a(II).
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sentencing guideline form, the sentencing court listed this crime as a Felony 

2 offense, which added two (2) points to the prior record score. 

Pennsylvania’s failure to comply with registration requirements 

demands the defendant “knowingly fail” to comply with his or her sexual 

offender registration requirements. See 18 Pa.C.S. § 4915.1(a). New 

Hampshire’s revised statute § 651-B:5 does not specifically enumerate the 

mens rea required. Woodard argues that the penalties statute found at § 651-

B:9 provides the mens rea as “negligently fails to comply” because the case 

summary lists the charge as a misdemeanor. See Appellant’s Brief, at 29. Our 

review of that statute, however, shows that Woodard relies upon the current 

version of § 651-B:9. The prior version of NH Rev. Stat. § 651-B:9 (eff. Jan. 

1, 2006) required the defendant to “knowingly fail to comply” to classify the 

crime as a misdemeanor. Id.

This is a prime example of why it is imperative that the courts compare 

the statute in effect at the time of conviction to Pennsylvania’s current 

equivalent offense. Upon remand, the trial court is directed to compare the 

statutes in effect at the time of Woodard’s convictions in New Hampshire with

Pennsylvania’s equivalents. If there is no Pennsylvania equivalent, the trial 

court is directed to follow the rules laid out above and at 204 Pa. Code § 303.8, 

and the applicable case law.

Unfortunately, there were significant errors in both the PSI and 

probation officer’s memorandum in evaluating Woodard’s out-of-state 
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convictions for purposes of calculating his PRS. We are unable to determine if 

the sentencing court properly applied a PRS of RFEL because of the 

misapplication of the law for determining the Pennsylvania equivalent statutes 

for Woodard’s prior, out-of-state convictions. 

Clearly, Woodard has an extensive record of crimes related to sexual 

assault, which justifiably was a major concern to the sentencing court. In light 

of Woodard’s prior record, as well as his current conviction of another sex 

offence, we agree that the sentencing court may decide to sentence within, 

above or below the guidelines. However, because of the errors noted above, 

we are constrained to vacate Woodard’s judgment of sentence and to remand 

for the trial court to determine Woodard’s PRS and for resentencing and 

establishment of a record that justifies the PRS and the guideline sentencing 

form.

Concerning Woodard’s remaining two issues, wherein he raises 

additional challenges to the discretionary aspects of his sentence, we will not 

address those issues because we are remanding for resentencing.

Conviction affirmed. Judgment of sentence vacated. Case remanded for 

resentencing consistent with this memorandum. Jurisdiction relinquished.
J-S41015-23

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DATE: 02/26/2024