Com. v. Taylor, I. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ISRAEL TAYLOR :
:
Appellant : No. 1198 EDA 2021
Appeal from the Judgment of Sentence Entered June 26, 2019
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0001211-2018
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JUNE 14, 2022
Israel Taylor appeals the judgment of sentence entered following his
no contest plea to involuntary deviate sexual intercourse with a child
(“IDSI”).1 He challenges the denial of his motion to withdraw his plea, the
discretionary aspects of his sentence, and the constitutionality of his
required registration under the Sex Offender Registration and Notification
Act (“SORNA"), 42 Pa.C.S.A. §§ 9799.10-9799.41. We affirm Taylor’s
conviction, vacate in part Taylor’s judgment of sentence, and remand for
further proceedings.
Taylor pleaded no contest to IDSI in January 2019, and the trial court
sentenced him in June 2019 to 10 to 20 years’ incarceration. The court also
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1 18 Pa.C.S.A. § 3123(b).
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ordered him to register as a Tier 3 offender under SORNA. Because the
assault of the victim occurred in 2015, Taylor was subject to the registration
requirements in Subchapter H of SORNA. See Guideline Sentence Form,
dated 7/1/19 (showing year of offense as 2015); 42 Pa.C.S.A. § 9799.10
(stating registration requirement under Subchapter H is “applicable to an
individual who commits an offense on or after Dec. 20, 2012”). Taylor
initially moved to withdraw his plea, in April 2019, but later withdrew the
motion. He filed a timely post-sentence motion, which the court denied on
July 23, 2019. Taylor did not file a direct appeal.
On May 26, 2020, Taylor filed a timely pro se Post Conviction Relief
Act (“PCRA”) petition. 42 Pa.C.S.A. §§ 9541-9546. The court appointed
counsel and in December 2020, it reinstated Taylor’s post-sentence motion
and direct appeal rights nunc pro tunc. See PCRA Petition, filed 5/26/20;
Order-PCRA, filed 12/1/20.
Taylor filed a post-sentence motion challenging the constitutionality of
the registration requirements under SORNA. He argued that it violated his
due process rights “by creating an irrebuttable presumption of
dangerousness,” “imping[ing] on the right to reputation without notice and
opportunity to be heard,” and “unlawfully restrict[ing] liberty and privacy
without notice and an opportunity to be heard.” See Post-Sentence Motion
as to Constitutionality of SORNA, filed 12/11/20, at ¶ 11. Taylor also filed a
motion to obtain funding for a SORNA expert and a motion to withdraw his
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plea. See Motion to Obtain Funding for SORNA Expert, filed 12/11/20; Post-
Sentence Motion to Withdraw Plea of No Contest, filed 12/14/20.2
Taylor claimed that his plea was not knowing, intelligent, and
voluntary. He alleged that but for his attorney’s recommendation to
withdraw his motion to withdraw his plea, he would have litigated the
motion. He also claimed that he withdrew the motion because he did not
have the finances to pay his attorney. He explained that he believed he had
no choice but to withdraw the motion because he would not have counsel if
the motion succeeded, and the case went to trial.
The post-sentence motion incorporated the arguments raised at the
sentencing hearing before Taylor’s post-sentence rights were reinstated. Id.
at 36. These arguments included an allegation that “[Taylor’s] maximum
sentence is manifestly excessive where he accepted responsibility, has no
prior history of criminal convictions, and was not deemed a sexually violent
predator.” Defendant’s Post Sentence Motion, filed 7/15/19, at ¶¶ 6, 8.
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2 The parties agreed that the post-sentence motion was timely. At the
hearing on the motion, all parties agreed that the filing date marked by the
PACFile system was a clerical error and that the motion in fact was filed on
December 11. See N.T., Post-Sentence Motions Hearing, 3/12/21, at 7-8;
20 West’s Pa.Prac., Appellate Practice § 125:1 (“PACFile is a service that
provides parties the ability to electronically file documents on both new and
existing cases with the Pennsylvania courts.... Those using PACFile receive
automatic e-mail notifications when filings are made or orders are entered in
their cases”).
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The trial court held a hearing on the motions where it heard testimony
from Taylor and Taylor’s plea counsel, Frederick Cutaio. Taylor’s counsel at
sentencing, Earl Raynor, testified at a later hearing.
Taylor testified that he did not speak with Attorney Cutaio about the
nature of the charges against him before pleading no contest. Id. at 13. He
also claimed that he did not know the elements of IDSI and that trial counsel
did not review the sentencing implications. Id. He also alleged that Attorney
Cutaio told him that he could plead no contest and if Taylor did not sign the
plea deal, counsel would not represent him. Id. at 15. He testified that
counsel told him that he would be imprisoned for life, and said that he was
coerced and under duress when he entered the plea. Id. at 15, 16, 26.
Taylor said that following his plea, he hired new counsel, Attorney
Raynor, to file a motion to withdraw his plea. He testified that Attorney
Raynor told him that it would be better to withdraw the motion because he
did not have the funds to pay counsel. Id. at 23-24. He said that he felt
forced to withdraw the motion. Id. at 24.
Attorney Cutaio testified that he did not advise Taylor that he could be
imprisoned for life or that he would not represent Taylor if he did not enter
the no contest plea. Id. at 44, 47. He also said that he reviewed the plea
colloquy form with Taylor. Id. at 44-45.
Attorney Raynor testified that Taylor initially told him that he wanted
to withdraw his plea. However, he said that Taylor told him to withdraw the
motion and that he wanted to proceed with sentencing. N.T., Hearing,
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1/8/21, at 12, 14.3 He testified that Taylor had not paid him but that he
continued to represent Taylor through sentencing. Id. at 15. Counsel
explained that although he filed a motion to withdraw as counsel before
sentencing, he withdrew that motion. Id. at 15, 26.
After hearing from both parties, the court stated that regarding the
SORNA issue, it would not be able to hold a hearing “until sometime after
July[,]” by which time the motion would be denied by operation of law. Id.
at 39. It noted that the SORNA experts that Taylor requested “are testifying
in Chester County in the remand case, [Commonwealth v.] Torsilieri[,
232 A.3d 567 (Pa. 2020)], and are unavailable for some time between now
and the Chester County hearing, and then for a little bit of time afterwards.”
Id. at 38-39.
The trial court denied relief. Regarding Taylor’s plea, the court
concluded that even if Taylor’s arguments were accepted as true, “it does
not demonstrate that the plea was not knowingly, voluntarily, and
intelligently made.” Memorandum Opinion and Order, filed 5/13/21, at 3. It
also noted that the testimony of Attorney Cutaio and Attorney Raynor was
“objectively supported by the record and consistent with the [c]ourt’s real
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3 The transcript is dated January 8, 2021. However, at the end of the
hearing, the court orally dictated an order for the parties to file briefs stating
that the date of the hearing was April 20, 2021.
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time observations.” Id. at 8. As to the sentencing challenge, the court
concluded that Taylor failed to raise a substantial question. Id. at 12.
The court did not address Taylor’s SORNA challenge in its final order
because, due to the passage of time, the motion was already denied by
operation of law. Id. at 12-13. See Pa.R.Crim.P. 720(B)(3)(a) (“If the judge
fails to decide the [post-sentence] motion within 120 days, or to grant an
extension as provided in paragraph (B)(3)(b), the motion shall be deemed
denied by operation of law”). This timely appeal followed.
Taylor raises the following issues before this Court:
1. Did the trial court err in denying the Mr. Taylor’s Motion
to Withdraw [h]is plea?
2. Did the trial court err in the discretionary aspects of
sentencing?
3. Did the trial court err in its decision denying Mr. Taylor’s
SORNA challenge?
Taylor’s Br. at 3-4 (suggested answers and footnotes omitted).
Taylor’s counsel has not briefed the first two issues. He states in the
appellate brief that counsel finds no factual basis on which to argue them.
Id. at 8, 10. We therefore will not address them further.4
For his final claim, Taylor argues that the trial court erred in its denial
of his SORNA challenge. He claims relief under our Supreme Court’s decision
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4 In an advocate’s brief, counsel should simply omit issues for which counsel
finds no support.
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in Commonwealth v. Torsilieri and maintains that the case should be
remanded for the court to determine the merits of his SORNA challenge. For
its part, the Commonwealth did not file a brief since it agrees that a remand
is necessary pursuant to Torsilieri. The trial court concludes the same in its
Pa.R.A.P. 1925(a) opinion. See 1925(a) Opinion, filed 7/12/21, at 3.
Torsilieri involved a challenge to the registration requirements under
Subchapter H of SORNA. Torsilieri argued that the “registration and
notifications provisions of Subchapter H violated his due process rights under
the Pennsylvania Constitution.” Torsilieri, 232 A.3d at 573. At a hearing on
the issue, the trial court permitted Torsilieri to “introduce affidavits and
supporting documents of three experts concluding that sexual offenders
generally have low recidivism rates and questioning the effectiveness of
sexual offender registration systems such as SORNA.” Id. at 574. The
Commonwealth did not present any rebuttable evidence. The trial court held
that Subchapter H was unconstitutional. The court then vacated the
registration requirement of Torsilieri’s sentence, and the Commonwealth
appealed directly to our Supreme Court.
The Court remanded the case for the trial court “to provide both
parties an opportunity to develop arguments and present additional evidence
and to allow the trial court to weigh that evidence in determining whether
[Torsilieri] has refuted the relevant legislative findings supporting the
challenged registration and notification provisions of Revised Subchapter H.”
Id. at 596.
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Here, like Torsilieri, Taylor challenged the constitutionality of SORNA
regarding his required registration as a sex offender. He challenged whether
the registration requirement violated his due process rights. The trial court
did not hold a hearing because it found that it would be without jurisdiction
by the time SORNA experts were available to testify. Without a hearing,
there is no factual record to evaluate Taylor’s SORNA challenge. As such, we
vacate in part the order denying Taylor’s post-sentence motion insofar as it
relates to his challenge to his SORNA registration requirements. We remand
pursuant to Torsilieri for evidentiary proceedings on the SORNA challenges
raised in Taylor’s post-sentence motion.
Judgment of sentence and conviction affirmed. Order denying post-
sentence motion vacated only as to SORNA challenge. Case remanded for
proceedings consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2022
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