Com. v. Johnson, D. ( 2022 )

J-S01011-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DUPREE M. JOHNSON :
:
Appellant : No. 637 MDA 2021
Appeal from the Judgment of Sentence Entered April 23, 2021
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0001770-2019
BEFORE: BOWES, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY BOWES, J.: FILED: FEBRUARY 15, 2022
Dupree M. Johnson appeals from his April 23, 2021 judgment of
sentence imposed after he entered a negotiated guilty plea to indecent assault
of an unconscious person. We affirm.
On April 23, 2021, Appellant pled guilty to indecent assault of an
unconscious person. In exchange for his plea, the Commonwealth nolle
prossed the remaining charges of rape of an unconscious person, sexual
assault, and indecent assault without consent. The trial court accepted
Appellant’s plea and issued the agreed-upon sentence of nine to twenty-three
months of incarceration followed by a consecutive three-year term of
probation. The court also designated Appellant as a Tier II twenty-five-year
registrant pursuant to Subchapter H of the Sex Offender Registration and
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* Retired Senior Judge assigned to the Superior Court.
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Notification Act (“SORNA” or “Subchapter H”), 42 Pa.C.S. §§ 9799.10-
9799.42. As the trial court was advising Appellant of his appellate rights, plea
counsel indicated that Appellant intended to appeal the constitutionality of an
unidentified issue in the case, but that the appeal would not affect the validity
of the plea itself. See N.T., 4/23/21, at 14. Appellant was later evaluated
and adjudged to not be a sexually violent predator (“SVP”).
Appellant did not file a post-sentence motion. Instead, the instant
timely appeal followed. Both Appellant and the trial court have complied with
the mandates of Pa.R.A.P. 1925.1
Appellant raises the following issue for our review:
Is [Appellant’s] sentence illegal insofar as it includes a mandatory
registration requirement pursuant to [SORNA], the imposition [of]
which is a violation of his right to reputation contained Article I,
Section 1 of the Pennsylvania Constitution as it is based on an
irrebuttable presumption that sex offenders are at a higher risk of
recidivism which is not universally true and not true as applied to
[Appellant]?
Appellant’s brief at 4.
For the first time on appeal, Appellant argues that the registration
requirements imposed upon him pursuant to Subchapter H run afoul of the
Pennsylvania Constitution’s reputational protections. See Appellant’s brief at
8; see also PA. CONST., Art. 1, § 1 (“All men are born equally free and
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1 While this appeal was pending, plea counsel sought and obtained leave to
withdraw as counsel. Following a hearing, the trial court appointed current
counsel to represent Appellant in this appeal.
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independent, and have certain inherent and indefeasible rights, among which
are . . . reputation . . . .”). Accordingly, we must decide whether this claim
has been properly preserved for our review.
It is well-settled that issues not raised before the trial court cannot be
advanced for the first time on appeal. Pa.R.A.P. 302(a). See
Commonwealth v. Reslink, 257 A.3d 21 (Pa.Super. 2020) (finding
constitutional challenges to Subchapter H of SORNA waived due to appellant’s
failure to raise his claims before the trial court); see also In re F.C. III, 2
A.3d 1201, 1212 (Pa. 2010) (finding appellant’s constitutional claims waived
where he failed to raise them before the lower court). Thus, “issues, even
those of constitutional dimension, are waived if not raised in the trial court.”
see Commonwealth v. Jefferson, 256 A.3d 1242, 1252 (Pa.Super. 2021);
see also Commonwealth v. Howe, 842 A.2d 436, 441 (Pa.Super. 2004)
(“[C]onstitutional issues, including sentencing issues based upon the
constitution are waived if they are not properly raised in the trial court.”).
This Court reviewed a similar constitutional challenge to Subchapter H
in Reslink. Like Appellant in the instant case, Reslink was subject to tier-
based registration under SORNA. See 42 Pa.C.S. § 9799.14(b)(6). Reslink
asserted for the first time on appeal that Subchapter H creates “an irrefutable
and irrebuttable presumption against the offender” and is, therefore,
unconstitutional. Reslink, supra at 24. This Court found that he waived the
issue because he failed to raise it before the trial court. Id. at 25. In reaching
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that decision, we noted that it “is well-settled that issues not raised before the
trial court cannot be advanced for the first time on appeal.” Id. (citing
Pa.R.A.P. 302(a)). The fact that Reslink raised a constitutional claim that
implicated the legality of his sentence did not alter our analysis.2 Id.
Turning to the instant case, Appellant’s arguments raising constitutional
concerns regarding the presumption of recidivism and his right to reputation
were not presented to the trial court. Accordingly, the trial court found
Appellant’s claim waived, explaining that, in addition to failing to identify the
specific constitutional challenge in his concise statement, Appellant also “did
not raise or argue the issue at his guilty plea and sentencing hearing; he only
indicated that an issue as to constitutionality would be raised on appeal. We
are, therefore, unable to address that issue in this Opinion.” Trial Court
Opinion, 7/29/21, at 3. Pursuant to Reslink, we are constrained to agree.
Appellant concedes that prior counsel did not present the trial court with
any specific argument or challenge to the mandatory requirements of SORNA.
See Appellant’s brief at 7. Additionally, he admits that prior published
decisions from this Court have held that failure to specifically challenge the
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2 This author has previously written separately to express her belief that
Reslink was wrongly decided. See Commonwealth v. Chai, 253 A.3d 277(Pa.Super. 2021) (non-precedential concurring memorandum). While I
maintain that view, I nevertheless recognize that we are mandated to follow
established precedent. See Commonwealth v. Reed, 107 A.3d 137, 143
(Pa.Super. 2014) (“This Court is bound by existing controlling precedent as
long as the decision has not been overturned by our Supreme Court.”).
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constitutionality of SORNA’s registration requirements before the trial court
results in a waiver of that claim on appeal. Id. at 7-8. Accordingly, we find
that Appellant’s claim is waived.
Judgment of sentence affirmed.3
Judge Colins joins this Memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/15/2022
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3 We note that our Supreme Court is currently considering whether
constitutional SORNA claims should constitute non-waivable challenges to the
legality of sentence, and, as such, cannot be waived. See Commonwealth
v. Thorne, 245 A.3d 1099 (Pa.Super. 2020) (non-precedential decision)
appeal granted 260 A.3d 922 (Pa. 2021) (finding constitutional SORNA
challenges that were raised for the first time on appeal waived pursuant to
Reslink).
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