J-S33013-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ERIC ROBERT TURINSKI,

Appellant No. 818 MDA 2016

Appeal from the Judgment of Sentence Entered April 14, 2016

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0003065-2014

BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 13, 2017

Appellant, Eric Robert Turinski, appeals from the judgment of sentence 

of 12 to 36 months’ incarceration, followed by 36 months’ probation, and a 

lifetime registration requirement under the Sexual Offender Registration and 

Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.41, imposed after he 

pled guilty to statutory sexual assault (SSA) under 18 Pa.C.S. § 3122.1. On 

appeal, Appellant claims that the trial court erred by utilizing an incorrect 

offense gravity score (OGS) when sentencing him, and that the court 

imposed an illegal sentence by classifying him as a Tier III offender under 

SORNA. After careful review, we affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Briefly, Appellant was arrested and charged with various sexual 

offenses based on allegations that, in April of 2008, he had sexual 

intercourse with a minor victim, who was 14 years old at that time. In 

September of 2015, Appellant pled guilty to one count of SSA, graded as a 

felony of the second degree. On April 14, 2016, Appellant proceeded to a 

sentencing hearing, at which he was first determined not to be a sexually 

violent predator, and he was then sentenced to the above-stated term of 

incarceration and probation. The court also directed that Appellant’s SSA 

conviction be considered as a Tier III offense under SORNA, thus subjecting 

him to a lifetime registration requirement. See 42 Pa.C.S. § 9799.14.

Appellant filed a timely motion for reconsideration of his sentence, 

which was denied on May 5, 2016. He then filed a timely notice of appeal to 

this Court. That same day, the trial court issued an order directing Appellant 

to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on 

appeal. Appellant requested an extension of time to file his concise 

statement, which the court granted on May 26, 2016, directing that 

Appellant file his statement by June 30, 2016. However, Appellant did not 

file his concise statement until October 5, 2016. Consequently, the trial 

court issued a Rule 1925(a) opinion stating that any issues Appellant seeks 

to raise on appeal are waived. See Trial Court Opinion (TCO), 12/7/16, at 

1-2. 

Herein, Appellant presents two issues for our review, which we have 

reordered for ease of disposition:
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A. Whether the lower court imposed an illegal sentence when it 

used a gravity score of nine (9) when the crime [] Appellant 

plead [sic] guilty to carries an offense gravity score of seven (7).

B. Whether the lower court imposed an illegal sentence when it 

sentenced [] Appellant to register as a lifetime Tier III sexual 

offender when [] Appellant pled guilty to Count 2 of the criminal 

information, [a] violation of 18 Pa.C.S.A. §[]3122.1 Statutory 

Sexual Assault graded as a Felony of the Second Degree; 

specifically that [] Appellant engaged in sexual intercourse with a 

person less than sixteen (16) years of age when [] Appellant was 

four (4) or more years older than the complainant and [] 

Appellant and the complainant are not married to each other.

Appellant’s Brief at 5.

Before examining Appellant’s issues, we must address the untimely 

filing of his Rule 1925(b) statement. Under Rule 1925(c)(3) and this Court’s 

decision in Commonwealth v. Burton, 973 A.2d 428 (Pa. Super. 2009), 

counsel’s untimely filing of a Rule 1925(b) statement constitutes per se 

ineffectiveness, which permits this Court to remand for the nunc pro tunc 

filing of a concise statement and an opinion by the trial court. We recognize 

that in Burton, we held that “if there has been an untimely filing, this Court 

may decide the appeal on the merits if the trial court had adequate 

opportunity to prepare an opinion addressing the issues being raised on 

appeal. If the trial court did not have an adequate opportunity to do so, 

remand is proper.” Burton, 973 A.2d at 433. 

Here, the trial court did not explicitly address, in its Rule 1925(a) 

opinion, the two sentencing issues Appellant raises herein. However, the 

court did state that its “reasons for its sentencing order in this case appear 

of record in the sentencing hearing transcript and in the hearing record 
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regarding [Appellant’s] post-sentence motion.” TCO at 1-2 (unnumbered). 

We have reviewed the record and agree that the court’s rationale for 

imposing Appellant’s term of incarceration, and its decision to classify him as 

a Tier III SORNA offender, is apparent on the face of the record. 

Accordingly, we can meaningfully review Appellant’s sentencing claims based 

on the record before us and we need not delay this case by remanding for a 

more detailed Rule 1925(a) opinion. 

Appellant first argues that the trial court applied an incorrect offense 

gravity score (OGS) of 9, when the correct OGS for his SSA offense was 7. 

While in his statement of this issue, Appellant asserts that it implicates the 

legality of his sentence, he acknowledges in his argument that this claim is 

actually a challenge to the discretionary aspects of his sentence. See 

Appellant’s Brief at 14. We agree. 

Our Supreme Court has provided guidance on what 

constitutes the discretionary aspects of sentencing. Section 

9781(b) specifies that allowance of appeal of the discretionary 

aspects of sentence may be granted where it appears that there 

is a substantial question that the sentence imposed is not 

appropriate under this chapter. The chapter referred to is, of 

course, the entire Sentencing Code. We have stated that [t]he 

purpose of the prior record score and the [OGS] are part of the 

Guidelines used by the court to create uniformity in sentencing. 

This Court has further stated that, if a sentencing court

considers improper factors in imposing sentence upon a 

defendant, the court thereby abuses its discretion, but the 

sentence imposed is not rendered illegal. Otherwise, every 

erroneous consideration by a sentencing court will render the 

sentence illegal in a manner which cannot be waived by a 

defendant. If we were to qualify an improper calculation of 

offense gravity score as implicating the legality of sentence, we 

would be giving the sentencing guidelines more weight than they 
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were intended. We recently stated[] [that] the guidelines list 

ranges within which a court may sentence for particular crimes; 

they are not mandatory and courts will take into account various 

other factors when sentencing.

Although a sentencing court has no obligation to sentence

within the guidelines, the trial court must necessarily correctly 

apply the guidelines and reach the correct point of departure 

before sentencing outside of the guidelines.

[Therefore, t]he sentencing court must correctly ascertain 

the [OGS] in order to reach the proper sentence

recommendation provided by the Sentencing Guidelines. 

When the Sentencing Guidelines are properly applied, the 

judge may then exercise his or her discretion to sentence

outside the Guidelines. An improper calculation of the offense

gravity score affects the outcome of the sentencing

recommendations, resulting in an improper recommendation, 

thereby compromising the fundamental norms which underlie 

the sentencing process. We thus hold that any misapplication of 

the Sentencing Guidelines constitutes a challenge to the 

discretionary aspects of sentence. 

Commonwealth v. Archer, 722 A.2d 203, 210–11 (Pa. Super. 1998) 

(internal citations and quotation marks omitted; emphasis in original).

In light of Archer, it is apparent that Appellant’s allegation that the 

trial court applied an incorrect OGS implicates the discretionary aspects of 

his sentence. “It is well settled that an [a]ppellant’s challenge to the 

discretionary aspects of his sentence is waived if the [a]ppellant has not filed 

a post-sentence motion challenging the discretionary aspects with the 

sentencing court.” Commonwealth v. Bromley, 862 A.2d 598, 603 (Pa. 

Super. 2004) (citing Commonwealth v. Mann, 820 A.2d 788 (Pa. Super. 

2003) (issues challenging the discretionary aspects of sentence must be 

raised in post-sentence motion or by raising claim during sentencing 
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proceedings; absent such initiative, objection to the discretionary aspects of 

sentence waived on appeal)). Here, Appellant did not raise any claim 

concerning the OGS in his post-sentence motion, and he also does not point 

to where he preserved this claim at the time of the sentencing hearing. 

Accordingly, he has not preserved his first sentencing claim for our review.1

Next, Appellant contends that the court imposed an illegal sentence by 

designating him as a Tier III offender under SORNA, thus subjecting him to 

a lifetime registration requirement. Preliminarily, Appellant is incorrect that 

this claim implicates the legality of his sentence. Both our Supreme Court 

and this Court have declared that the registration requirements of SORNA 

are not punitive and, therefore, they do not constitute criminal punishment. 

See Commonwealth v. Gaffney, 733 A.2d 616, 622 (Pa. 1999); 

Commonwealth v. Benner, 853 A.2d 1068, 1070 (Pa. Super. 2004). 

Rather, “the registration requirement is properly characterized as a collateral 

consequence of [the defendant’s] plea, as it cannot be considered to have a 

____________________________________________

1

In any event, we note that at the sentencing proceeding, Appellant’s 

attorney informed the court that Appellant’s OGS was 7, and that the 

standard range guidelines called for a minimum sentence of 6 to 14 months’ 

incarceration. See N.T. Sentencing, 4/14/16, at 34. The court imposed a 

minimum sentence of 12 months, which was within that standard range. 

While Appellant avers on appeal that the court applied an OGS of 9, and 

sentenced him “as if he was convicted of a [f]elony of the [first d]egree 

rather than a [f]elony of the [second d]egree,” he provides no citation to the 

record to support this assertion. Appellant’s Brief at 15. Thus, even had 

Appellant preserved his OGS claim for our review, we would deem it 

meritless.
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definite, immediate and largely automatic effect on [a defendant’s] 

punishment.” Benner, 853 A.2d at 1070 (citation and internal quotation 

marks omitted).2 Thus, Appellant’s challenge to the registration requirement 

imposed by the court does not implicate the legality of his sentence.

Nevertheless, Appellant contends that the trial court erred by 

designating him as a Tier III offender under SORNA.3 By way of 

background, Appellant pled guilty to SSA as defined by the version of 18 

Pa.C.S. § 3122.1 that was in effect in 2008, which is when he committed the 

offense. That former version of section 3122.1 (hereinafter, “section 3122.1 

(Former)”) defined SSA as follows:

____________________________________________

2 We recognize that “Gaffney and Benner were decided prior to the 

effective date of SORNA....” Commonwealth v. McDonough, 96 A.3d 

1067, 1071 (Pa. Super. 2014). However, 

the same principles behind the registration requirements for 

sexual offenders under Megan's Law apply to those subject to 

SORNA. Namely, to effectuate, through remedial legislation, the 

non-punitive goal of public safety. Gaffney, 733 A.2d at 619; 

see 42 Pa.C.S. § 9791(a) (legislative findings and declaration of 

policy behind registration of sexual offenders). In fact, one of 

the main purposes behind SORNA is to fortify the registration 

provisions applicable to such offenders. See 42 Pa.C.S. § 

9799.10 (purpose of registration of sexual offenders under 

SORNA); see also H.R. 75, 195th Gen. Assemb. Reg. Sess. (Pa. 

2012). 

McDonough, 96 A.3d at 1071.

3 Appellant preserved this claim for our review by raising it in a written 

motion filed before his sentencing proceeding. 
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Except as provided in section 3121 (relating to rape), a person 

commits a felony of the second degree when that person 

engages in sexual intercourse with a complainant under the age 

of 16 years and that person is four or more years older than the 

complainant and the complainant and the person are not married 

to each other.

18 Pa.C.S. § 3122.1 (Former). A conviction of SSA under section 3122.1 

(Former) did not subject a person to registration under the version of 

Megan’s Law (the predecessor to SORNA) that was in effect at the time 

Appellant committed his SSA offense (unless that person was determined to 

be a sexually violent predator, which Appellant was not). See 42 Pa.C.S. § 

9795.1 (effective January 1, 2007 to December 7, 2008).

In 2011, section 3122.1 (Former) was amended (effective February 

21, 2012) to define SSA as follows:

(a) Felony of the second degree.--Except as provided in 

section 3121 (relating to rape), a person commits a felony of the 

second degree when that person engages in sexual intercourse 

with a complainant to whom the person is not married who is 

under the age of 16 years and that person is either:

(1) four years older but less than eight years older than 

the complainant; or

(2) eight years older but less than 11 years older than the 

complainant.

(b) Felony of the first degree.--A person commits a felony of 

the first degree when that person engages in sexual intercourse 

with a complainant under the age of 16 years and that person is 

11 or more years older than the complainant and the 

complainant and the person are not married to each other.

18 Pa.C.S. § 3122.1 (hereinafter, “section 3122.1 (Current)”).

Additionally, on December 20, 2011, the Legislature replaced Megan’s 

Law with SORNA, which became effective on December 20, 2012. Under 
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SORNA, a person convicted of SSA under section 3122.1(a)(1) (Current) 

does not have to register as a sexual offender. However, a person 

convicted of an offense under section 3122.1(a)(2) (Current) must register 

as a Tier II offender, and a person convicted of an offense under section 

3122.1(b) (Current) must register as a Tier III offender. 

Here, the trial court determined that Appellant was a Tier III offender, 

thus equating his conviction with a violation of section 3122.1(b). On 

appeal, Appellant contends that, when pleading guilty, he could have only 

contemplated that his conviction would be comparable to section 

3122.1(a)(1) (Current), which has no registration requirement. In support, 

Appellant stresses that his SSA conviction is graded as a second-degree 

felony, as is a violation of section 3122.1(a)(1) (Current). In contrast, an 

offense under section 3122.1(b) (Current) is graded as a felony of the first 

degree. Appellant also emphasizes that the criminal 

information accused [him] of being four (4) or more years older 

than the complainant. The only subsection of [section] 3122.1 

[(Current)] that mentions the number four (4) is [section] 

3122.1(a)(1) [(Current)]; all other subsection[s] reference ... 

different age ranges, none beginning with four (4). For [] 

Appellant to believe that he was entering a plea of guilt[y] to 

anything [other] than 18 Pa.C.S.A. § 3122.1(a)(1) [(Current)] 

would involve an element of surprise that would impair [] 

Appellant’s substantial rights. As such, [] Appellant should have 

been sentenced in accordance with the consequences that come 

with being convicted of 18 Pa.C.S.A. § 3122.1(a)(1) [(Current)].

Appellant’s Brief at 13.

Appellant’s argument is unconvincing, as the record does not support 

his claim that he was unfairly surprised by the court’s designating him as a 
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Tier III offender. Appellant, who was born in 1971, obviously knew that he 

was more than 11 years older than the victim, whose year of birth was listed 

on the criminal information as being 1993. The record also confirms that 

Appellant knew the victim since she was 21⁄2 years old, and he had acted as 

a father figure to her from that age until he started sexually abusing her in 

2008, when she was 14 years old and he was 36. See N.T. Sentencing, 

4/14/16, at 42. Moreover, Appellant signed a written plea agreement that 

stated he would plead guilty to SSA, graded as a felony of the second 

degree, and directly underneath that information, the plea agreement 

stated, “more than 11 yrs older than complainant[.]” Plea Agreement, 

9/17/15, at 1 (emphasis added). Additionally, the plea agreement set forth 

that Appellant “must register pursuant to Adam Walsh [Act,]” i.e., 

SORNA.4 Id. (emphasis added). Thus, prior to Appellant’s entering his plea, 

he was put on notice that his SSA offense under section 3122.1 (Former) 

would be equated with section 3122.1(b) (Current) for SORNA purposes.

Given this record and Appellant’s argument on appeal, he has not 

demonstrated that the trial court erred by designating him as a Tier III 

____________________________________________

4 SORNA is sometimes referred to as the “Adam Walsh Act” because “[t]he 

passage of SORNA brought Pennsylvania into compliance with the Adam 

Walsh Child Protection and Safety Act of 2006, 42 U.S.C. §§ 16901-

16991....” Commonwealth v. Giannantonio, 114 A.3d 429, 432-33 (Pa. 

Super. 2015).
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offender under SORNA, thus subjecting him to a lifetime registration

requirement.5

____________________________________________

5 We recognize that each tier of SORNA, including Tier III, has a provision 

stating that an offense can be classified under that tier if it is a “similar 

offense ... under a former law of this Commonwealth.” 42 Pa.C.S. § 

9799.14(d)(3) (emphasis added). Furthermore, this Court has concluded 

that, to determine if a former law “is an equivalent or similar crime” to a 

current offense, “such that it qualifies as a ‘former law of the 

Commonwealth’ under section 9799.14(d)(3),” we utilize “the analysis set 

forth by our Supreme Court in Commonwealth v. Northrip, 985 A.2d 734, 

736 (Pa. 2009).” Commonwealth v. Sampolski, 89 A.2d 1287, 1289 (Pa. 

Super. 2014). 

In Northrip, our Supreme Court addressed the issue of whether 

a New York arson statute constituted an “equivalent crime” as 

Pennsylvania's comparable arson statute for purposes of 

application of Pennsylvania's “Three Strikes Law,” 42 Pa.C.S.A. § 

9714(g). Our Supreme Court held as follows:

[T]he court must consider the elements of the foreign 

offense in terms of classification of the conduct proscribed, 

its definition of the offense, and the requirements for 

culpability. With respect to the underlying policy of the 

statutes, we hold that analysis of policy considerations is 

appropriate, though not controlling.

Sampolski, 89 A.3d at 1289 (quoting Northrip, 985 A.2d at 740 (citation 

omitted)).

Based on the argument Appellant presents to this Court, we decline to 

conduct an analysis of whether Appellant’s conviction under section 3122.1 

(Former) is a ‘similar’ offense (under a statutory interpretation analysis) to 

section 3122.1(b) (Current). Appellant does not even cite, let alone discuss, 

the Northrip test, or Sampolski’s application of that test in the SORNA 

context. He also does not explain what it means for a former offense to be 

‘similar’ to an enumerated offense under SORNA. Additionally, Appellant 

does not argue that a comparison of section 3122.1 (Former) and section 

3122.1(b) (Current) involves an analysis of only the elements of those 

offenses, rather than an assessment of the actual facts underlying his 

conviction, which are clearly ‘similar’ to the offense set forth in section 

(Footnote Continued Next Page)
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 Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/13/2017

(Footnote Continued) _______________________

3122.1(b) (Current). Without any such discussion by Appellant, we limit our 

review to the argument he presents, which is that his conviction is similar, 

for notice purposes, only to section 3122.1(a)(1). Appellant’s Brief at 12, 

13.