Com. v. Westover, D. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DANA FREDERICK WESTOVER :
:
Appellant : No. 2851 EDA 2019
Appeal from the Judgment of Sentence Entered May 14, 2019
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0002568-2018
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: Filed: January 13, 2021
Appellant, Dana Frederick Westover, appeals from the judgment of
sentence of 48 to 96 months, which was imposed after he pleaded guilty to
aggravated indecent assault.1 On appeal, Appellant challenges the
discretionary aspects of his sentence and the constitutionality of his
classification as a Tier III sex offender under the Sex Offender Registration
and Notification Act (“SORNA”).2 After careful review, we vacate the order
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* Retired Senior Judge assigned to the Superior Court.
1 Appellant pleaded guilty to 18 Pa.C.S. § 3125(a)(8), requiring that “the
complainant is less than 16 years of age”; specifically, the victim in the current
appeal was 13 years of age.
2 SORNA, 42 Pa.C.S. §§ 9799.10-9799.42, classifies offenders and their
offenses into three tiers. Id. § 9799.14. Those convicted of Tier III offenses
are subject to lifetime registration, are required to verify their registration
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denying his post-sentence motion and remand for a hearing at which the
parties can present evidence for and against the relevant legislative
determinations discussed below. We affirm in all other respects.
Appellant pleaded guilty on February 27, 2019, and the trial court
delayed sentencing for a pre-sentence investigation (“PSI”) report and a
report from Sexual Offenders Assessment Board (“SOAB”).
Prior to being sentenced, Appellant filed a “Motion to Declare
SORNA Unconstitutional and Preclude Sex Offender Registration,”
wherein he requested, inter alia, that th[e trial c]ourt not conduct
a Sexually Violent Predator (“SVP”) hearing, as same violated his
constitutional rights. [The trial court] granted Appellant’s Motion
in part . . . and declined to hold an SVP hearing. All other aspects
of Appellant’s Motion were denied without prejudice for Appellant
to raise same post-sentence.
Trial Court Opinion, dated October 21, 2019, at 1-2.
At Appellant’s sentencing on May 14, 2019, Appellant’s counsel informed
the trial court the Appellant “was actually the victim of sexual abuse himself[,]
[has] had no disciplinary issues in jail[,]” and “enroll[ed] in counseling
voluntarily and has been a positive contributor to the group[.]” N.T.,
5/14/2019, at 4. The victim’s father testified that the victim “went from being
an A, B student to failing. [His] daughter started doing drugs because of this.
She’s having sex at 14 years old because of this.” Id. at 7. At the conclusion
of the hearing, the trial court acknowledged that Appellant “has a zero prior
record score, that at least by the accounts in the PSI [report,] he was the
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information, and “shall appear quarterly” to be photographed at an approved
registration site. Id. § 9799.15(a)(3), (e)(3).
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victim of sexual abuse by both his biological [mother] and stepmother.” Id.
at 10. It also observed that Appellant “appears to exhibit remorse.” However,
the trial court noted its “concern[]” that Appellant has placed “the blame on
the victim” and “justifi[ed]” his actions to a degree that the trial court found
“disturbing.” Id. The trial court stated that the SOAB report found Appellant
to have an “antisocial personality disorder and disregard for . . . and violations
of the rights of others.” Id.
Appellant was sentenced to a period of incarceration of not less
than 48 months nor more than 96 months.[3] Appellant is
classified as a Tier III Sex Offender and is subject to lifetime
registration requirements . . . Appellant was notified of his Sex
Offender Registration classification and requirements at
sentencing. On May 22, 2019, Appellant filed timely “Post
Sentence Motions.” Appellant filed a “Motion to Reconsider
Sentence” and a motion challenging the constitutionality of
SORNA as applied to Appellant.
Trial Court Opinion, dated October 21, 2019, at 2. In the latter motion,
Appellant pleaded:
4. On July 19, 2017, in Com[monwealth] v. Muniz, [164
A.3d 1189 (Pa. 2017) (plurality)], the Pennsylvania Supreme
Court issued an opinion indicating for the first time that SORNA is
punishment that violates both the Federal and Pennsylvania Ex
Post Facto Clauses.
5. On February 21, 2018, the statute was subsequently
amended.
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3This sentence falls within the aggravated range of the sentencing guidelines.
Trial Court Opinion, dated October 21, 2019, at 4.
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6. The amendments do not so substantially alter the nature or
character of the requirements of SORNA such that it is non-
punitive or that its constitutionality has changed. . . .
14. SORNA denies [Appellant] Due Process under Article 1 and
11 [sic] of the Pennsylvania Constitution[4] because it creates an
irrebuttable presumption that those convicted of enumerated
offenses “pose a high risk of committing additional sexual
offenses”[5] depriving those individuals of the fundamental right
to reputation. . . .
18. SORNA constitutes criminal punishment and therefore
violates the separation of powers doctrine because it usurps the
exclusive judicial function of imposing a sentence.
Post-sentence Motions, 5/22/2019, at ¶¶ 4-6, 14, 18. “On May 31, 2019, th[e
Court of Common Pleas of Monroe County] sat en banc . . . to hear Appellant’s
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4 According to Article I, Sections 1 and 11 of the Pennsylvania Constitution:
All men are born equally free and independent, and have certain
inherent and indefeasible rights, among which are those of
enjoying and defending life and liberty, of acquiring, possessing
and protecting property and reputation, and of pursuing their
own happiness. . . .
All courts shall be open; and every man for an injury done him in
his lands, goods, person or reputation shall have remedy by due
course of law, and right and justice administered without sale,
denial or delay.
PA. CONST. art. I, §§ 1, 11 (emphasis added). These explicit references to
“reputation” in the Pennsylvania Constitution have provided the basis for our
appellate courts to regard reputation “as a fundamental interest which cannot
be abridged without compliance with constitutional standards of due process
and equal protection.” Commonwealth v. Mickley, 240 A.3d 957, 962 n.7
(Pa. Super. 2020) (quoting R. v. Commonwealth of Pennsylvania,
Department of Public Welfare, 636 A.2d 142, 149 (Pa. 1994)).
5 SORNA’s legislative findings state: “Sexual offenders pose a high risk of
committing additional sexual offenses and protection of the public from this
type of offender is a paramount governmental interest.” 42 Pa.C.S.
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SORNA challenge together with a number of other defendants who had
likewise challenged SORNA’s constitutionality.” Trial Court Opinion, dated
October 21, 2019, at 2. At the hearing, Appellant’s counsel argued that
SORNA violated due process by creating a rebuttable presumption that a sex
offender is likely to reoffend. Id. at 20. The panel and counsel discussed
scientific studies about the rate of recidivism amongst sexual offenders
compared to other criminals, but the studies themselves were never
introduced into evidence. Id. at 20-21, 26-27. “By Order en banc, Appellant’s
post-sentence motion regarding SORNA was denied on July 18, 2019.” Trial
Court Opinion, dated October 21, 2019, at 2.
On August 16, 2019, Appellant’s counsel filed a premature notice of
appeal, as Appellant’s motion for reconsideration of sentence remained
pending. On August 30, 2019, the trial court denied his reconsideration
motion. On September 10, 2019, Appellant’s counsel filed a statement of
errors complained of on appeal. On September 27, 2019, Appellant’s counsel
filed another, timely notice of appeal. On October 7, 2019, Appellant’s counsel
re-filed his statement of errors complained of on appeal.6
Appellant now presents the following issues for our review:
1. Whether the [trial] court erred when it sentenced
[Appellant] with a 0 prior record score to an aggravated range
sentence of 48 to 96 months when mitigating factors existed?
2. Whether the [trial] court erred when it found that SORNA
does not deny the Appellant due process under Articles 1 and 11
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6 On October 21, 2019, the trial court entered its opinion.
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[sic] of the Pennsylvania Constitution because it creates an
irrebuttable presumption[ ]that those convicted of the
enumerated offenses “pose a high risk of committing additional
sexual offenses” depriving those individuals of the fundamental
right to reputation?
3. Whether the [trial] court erred when it found that SORNA
does not deny [Appellant] procedural due process under Article 11
[sic] of the Pennsylvania Constitution because it unlawfully
impinges on the right to reputation without notice and an
opportunity to be heard?
4. Whether the [trial] court erred when it found that SORNA
does not deny the Appellant procedural due process under the
Fifth and Fourteenth Amendments to the United States
Constitution because it unlawfully restricts liberty and privacy
without notice and an opportunity to be heard?
5. Whether the [trial] court erred when it found that SORNA
does not violate substantive due process under the Pennsylvania
and federal constitutions, U.S. Const. Amend. XIV, Pa. Const.
Art. I, § 1, because SORNA deprives individuals of inalienable
rights and fails to satisfy strict scrutiny?
6. Whether the [trial] court erred when it found that SORNA
does not constitute criminal punishment and [therefore] violates
the separation of powers doctrine because it usurps the exclusive
judicial function of imposing a sentence?
7. Whether the [trial] court erred when it found that SORNA
does not contravene the Fifth, Sixth, and Fourteenth Amendments
of the United States Constitution and the corresponding
protections of the Pennsylvania Constitution because as a criminal
punishment, SORNA cannot be [imposed] without due process,
notice, and opportunity to [contest] its imposition, and ensuring
that each fact necessary to support the mandatory sentence is
submitted to a jury and proven beyond a reasonable doubt
pursuant to Apprendi v. New Jersey, 530 U.S. 266 (2000) and
Alleyne v. United States, 1570 U.S. 99 (2013)?
8. Whether the [trial] court erred when it found that SORNA
does not constitute criminal penalties and therefore the imposition
of mandatory lifetime sex offender registration for nearly all of
Tier III offenses is not cruel and unusual punishment in violation
of the Eighth and Fourteenth Amendments[ ]to the United States
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Constitution and Article I, Section 13 of the Pennsylvania
Constitution?
Appellant’s Brief at 8-10 (suggested answers and unnecessary capitalization
omitted).
Sentencing
First, Appellant challenges the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to an appeal as of right. Prior to reaching the
merits of a discretionary sentencing issue[, w]e 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).
Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)
(quotation marks and some citations omitted), reargument denied (July 7,
2018). In the current case, Appellant filed a timely notice of appeal, preserved
his issue in a post-sentence motion, and included a statement in his brief
pursuant to Pa.R.A.P. 2119(f) (“Rule 2119(f) Statement”). Appellant’s Brief
at 16-17. The final requirement, whether the question raised by Appellant is
a substantial question meriting our discretionary review, “must be evaluated
on a case-by-case basis. A substantial question exists only when the appellant
advances a colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the sentencing
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process.” Manivannan, 186 A.3d at 489 (quotation marks and some citations
omitted).
In his Rule 2119(f) Statement, Appellant contends that the trial court
abused its discretion in imposing sentence, because the trial court “did not
consider any mitigating factors” and “focused on the seriousness of the crime
without also considering other relevant criteria.” Appellant’s Brief at 17.
Although Appellant’s claim that the trial court failed to consider
mitigating factors generally would not raise a substantial question,
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (citing
Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa. Super. 1999) (“allegation
that the sentencing court failed to consider certain mitigating factors generally
does not necessarily raise a substantial question”), he has coupled this
assertion with a claim that the trial court only considered the serious nature
of his offense, thereby ignoring all other factors including mitigating ones,
which does raise a substantial question. Commonwealth v. Bricker, 41 A.3d
872, 875 (Pa. Super. 2012) (“averment that the court sentenced based solely
on the seriousness of the offense and failed to consider all relevant factors
raises a substantial question”); Commonwealth v. Ventura, 975 A.2d 1128,
1133 (Pa. Super. 2009) (appellant “assert[ed] that the trial court imposed his
sentence based solely on the seriousness of the offense and failed to consider
all relevant factors, which has . . . been found to raise a substantial
question.”); Commonwealth v. Lawrence, 960 A.2d 473 (Pa. Super. 2008)
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(averment that the court sentenced based solely on seriousness of the offense
and failed to consider all relevant factors raises a substantial question).
Having found that Appellant’s sentencing challenges merit our
discretionary review, we turn to our standard of review:
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. Lekka, 210 A.3d 343, 350 (Pa. Super. 2019) (citation
omitted).
[A] sentencing court abuses its discretion when it considers the
criminal act, but not the criminal himself. The Sentencing Code
prescribes individualized sentencing by requiring the sentencing
court to consider the protection of the public, the gravity of the
offense in relation to its impact on the victim and the community,
and the rehabilitative needs of the defendant, Commonwealth
v. Swope, 123 A.3d 333, 338 (Pa. Super. 2015) (citing 42 Pa.C.S.
§ 9721), and prohibiting a sentence of total confinement without
consideration of “the nature and circumstances of the crime[,] and
the history, character, and condition of the defendant,” 42 Pa.C.S.
§ 9725.
Commonwealth v. Luketic, 162 A.3d 1149, 1160-61 (Pa. Super. 2017)
(some internal citations and quotation marks omitted).
Appellant contends that the trial court abused its discretion and “failed
to adhere to sentencing requirements” by ignoring the mitigating factors that
Appellant: was 55 years old with a prior record score of zero (0); had no
history of violence; “was extremely remorseful”; “was so distraught regarding
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his behavior that he had attempted suicide twice since the incident”;
“voluntarily engaged in sexual offender counseling at the jail” and “positively
contributed to the meetings”; “had had no write ups” during “the 244 days he
had been at the jail prior to sentencing”; and “had been the victim of sexual
abuse himself as a child.” Appellant’s Brief at 18-20. He additionally argues
that the trial court, while ignoring these mitigating factors, focused exclusively
on the aggravating factors “that the victim’s grades had suffered, she was
engaging in self harm, and, that she was using illegal drugs since the assault.”
Id. at 20.
Contrary to Appellant’s assertion that the trial court disregarded all his
mitigating factors, the trial court explicitly stated that it “considered
Appellant’s zero prior record score and . . . that Appellant was the victim of
prior sexual abuse by his biological mother and step-mother.” Trial Court
Opinion, dated October 21, 2019, at 4 (citing N.T., 5/14/2019, at 10). In
addition, the trial court recognized Appellant’s remorse. N.T., 5/14/2019, at
10.
Furthermore, the trial court “had the aid of a [PSI] Report[7] . . . in this
case, and [it] thoroughly reviewed the same in advance of sentencing.” Trial
Court Opinion, dated October 21, 2019, at 4. “Where pre-sentence reports
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7 Although the PSI report was not included in the certified record, it likely
would have included Appellant’s age and counseling history and discussed his
lack of a history of violence or disciplinary charges during his incarceration.
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exist, we shall continue to presume that the sentencing judge was aware of
relevant information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Conte, 198 A.3d 1169, 1177 (Pa. Super. 2018) (citation omitted), appeal
denied, 206 A.3d 1029 (Pa. 2019).
Most significantly, Appellant ignores that there were additional
aggravating factors considered by the trial court besides the ones enumerated
in his brief, Appellant’s Brief at 20, about “the profound effect Appellant’s
actions have had, and continue to have, upon the victim in this matter” – i.e.,
“the drug use, the engagement of self-harm, the inability to function in a
school setting, and the plummeting of grades[.]” Trial Court Opinion, dated
October 21, 2019, at 5 (citing N.T., 5/14/2019, at 7, 10-11). The trial court
also considered the additional aggravating factors that Appellant places “the
blame on the victim[,]” providing a “disturbing” “justification” for his actions,
as well as those found in the SOAB report that Appellant suffers from an
“antisocial personality disorder” and “disregard[s] . . . and violat[es] the rights
of others.” Id. (citing N.T., 5/14/2019, at 10).
While Appellant is correct that the trial court does not explicitly mention
its consideration of Appellant’s age, non-violent history, voluntary counseling,
and lack of disciplinary action while in jail, “sentences are under no compulsion
to employ checklists or system definitions of their punishment procedure.”
Conte, 198 A.3d at 1177 (citation omitted). Moreover, the trial court broadly
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asserted that it “addressed, and considered, each of the mitigating factors he
presented[.]” Trial Court Opinion, dated October 21, 2019, at 4.
Ergo, the trial court was fully informed by the PSI report and took into
account the general standards for sentencing. Conte, 198 A.3d at 1178;
Luketic, 162 A.3d at 1161. Where a “trial court took a reasoned approach
and sentenced [a defendant] after taking into account multiple factors,” as
the trial court did in the current appeal, we “discern no abuse of discretion.”
Conte, 198 A.3d at 1178. For these reasons, Appellant has failed to
demonstrate a manifest abuse of discretion by the trial court, and we therefore
will not disturb his sentence on appeal. Lekka, 210 A.3d at 350; Conte, 198
A.3d at 1177-78.
SORNA
Appellant’s remaining appellate claims are all related to SORNA and are
identical to those raised in Commonwealth v. Torsilieri, 232 A.3d 567, 585-
88 (Pa. 2020), which was decided during the pendency of Appellant’s appeal.
Appellant’s first four SORNA-related challenges claim that SORNA deprives
him of procedural due process, because SORNA creates an irrebuttable
presumption of recidivism,8 consequently depriving him of his right to his
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8 See 42 Pa.C.S. § 9799.11(a)(4).
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reputation9 without notice and an opportunity to be heard. Appellant’s Brief
at 8-9 ¶¶ 2-5 & at 21-47.
In Torsilieri, 232 A.3d 567, the Supreme Court of Pennsylvania did not
reach the merits of any of the constitutional claims at issue, determining
instead that the factual record was not sufficiently developed in the trial court.
See also Commonwealth v. Mickley, 240 A.3d 957, 962 (Pa. Super. 2020).
The Pennsylvania Supreme Court concluded that a remand was appropriate
“to allow the parties to address whether a consensus has developed to call
into question the relevant legislative policy decisions impacting offenders’
constitutional rights.” Torsilieri, 232 A.3d at 585; see also Mickley, 240
A.3d at 962. Our Supreme Court continued:
We recognize that the . . . parties relied upon our recent statement
in [Commonwealth v.] Muniz, [164 A.3d 1189,] 1217 [(Pa.
2017) (plurality)], rejecting . . . expert evidence calling into
question the legislature’s assessment of sexual offender
recidivism risks and the effectiveness of tier-based registration
systems. In light of this reliance, we emphasize that all cases are
evaluated on the record created in the individual case. Thus, a
court need not ignore new scientific evidence merely because a
litigant in a prior case provided less convincing evidence. Indeed,
this Court will not turn a blind eye to the development of
scientific research, especially where such evidence would
demonstrate infringement of constitutional rights.
Nevertheless, we also emphasize that it will be the rare situation
where a court would reevaluate a legislative policy determination,
which can only be justified in a case involving the infringement of
constitutional rights and a consensus of scientific evidence
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9 See PA. CONST. art. I, §§ 1, 11; see also In re Fortieth Statewide
Investigating Grand Jury, 190 A.3d 560, 572–73 (Pa. 2018) (“the right of
citizens to security in their reputations is . . . a fundamental constitutional
entitlement” in Pennsylvania).
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undermining the legislative determination. We reiterate that while
courts are empowered to enforce constitutional rights, they should
remain mindful that the wisdom of a public policy is one for the
legislature, and the General Assembly’s enactments are entitled
to a strong presumption of constitutionality rebuttable only by a
demonstration that they clearly, plainly, and palpably violate
constitutional requirements. . . . Accordingly, we conclude that the
proper remedy is to remand to 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 [the Commonwealth] has
refuted the relevant legislative findings supporting the challenged
registration and notification provisions of . . . Subchapter H.[10]
Torsilieri, 232 A.3d at 595-96 (emphasis added) (internal citation and
quotation marks omitted); see also Mickley, 240 A.3d at 962-63.
In the current action, no evidence was presented at the hearing on
Appellant’s post-sentence motion, despite discussion of such evidence existing
in the form of scientific studies. N.T., 5/31/2019, at 20-21, 26-27. Thus, in
accordance with Torsilieri, we are constrained to vacate the order denying
Appellant’s post-sentence motion and to remand for a hearing at which the
parties can present evidence for and against the relevant legislative
determinations discussed above. 11
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10 The General Assembly amended SORNA on February 21, 2018, by passing
Act 10 of 2018, which was immediately effective. See P.L. 27, No. 10, §§ 1-
20. “Act 10 split SORNA, which was previously designated in the Sentencing
Code as Subchapter H, into two subchapters. Revised Subchapter H applies
to crimes committed on or after December 20, 2012, whereas Subchapter I
applies to crimes committed after April 22, 1996, but before December 20,
2012.” Torsilieri, 232 A.3d at 580.
11 As we vacate for the above reasons, we need not reach Appellant’s
additional claims arguing that SORNA is punitive. See Appellant’s Brief at 9-
10 ¶¶ 6-8 & at 47-74. During the pendency of this appeal, the Supreme Court
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* * *
In conclusion, we vacate the order denying Appellant’s post-sentence
motion. We remand for a hearing at which the parties can present evidence
for and against the relevant legislative determinations discussed herein. We
affirm Appellant’s judgment of sentence in all other respects.
Order denying post-sentence motion vacated. Judgment of sentence
affirmed in all other respects. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/21
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decided Commonwealth v. Lacombe, 234 A.3d 602, 626 (Pa. 2020),
holding that “Subchapter I does not constitute criminal punishment[.]”
However, according to the Information, the assault in the current appeal
occurred on November 23, 2017. As the crime occurred after December 20,
2012, only Subchapter H applies, not Subchapter I, see Torsilieri, 232 A.3d
at 580, and Lacombe hence is inapplicable to the current matter.
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