Com. v. Williams, W., II ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
WAYNE FITZGERALD WILLIAMS, II, : No. 1909 MDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered July 1, 2019,
in the Court of Common Pleas of Luzerne County
Criminal Division at No. CP-40-CR-0003343-2018
BEFORE: PANELLA, P.J., BENDER, P.J.E. AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 23, 2020
Wayne Fitzgerald Williams, II, appeals from the July 1, 2019 aggregate
judgment of sentence of 132 to 360 months’ imprisonment imposed after he
plead guilty to two counts of involuntary deviate sexual intercourse – person
less than 16 years of age (“IDSI”).1 The Sexual Offender Assessment Board
(“SOAB”) concluded that appellant did not meet the criteria to be classified as
a sexually violent predator (“SVP”). After careful review, we affirm the
judgment of sentence.
The trial court summarized the relevant facts and procedural history of
this case as follows:
On November 6[,] 2018, the Luzerne County District
Attorney filed a nine (9) count Information docketed
to number 3343 of 2018 charging [] appellant herein
1 18 Pa.C.S.A. §§ 3123(a)(7).
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with three (3) counts of [IDSI], rape, threat of forcible
compulsion, statutory sexual assault, indecent
assault, indecent assault on a person less than
16 years of age, corruption of minors, and terroristic
threats. The criminal information alleged that
[] appellant committed the offenses charged therein
on or about August 4, 2018.[Footnote 1]
[Footnote 1] Act 10, the most recent
legislative update to SORNA became
effective June 12, 2018. Appellant [pled]
guilty to sexual offenses which occurred
on August 4th and 5th of 2018.
On April 5, 2019, following the conduct of a hearing,
[] appellant [pled] guilty to two (2) counts of
[IDSI].[Footnote 2] After a recitation of the factual
basis for the plea by the assistant district attorney and
a thorough colloquy of both [] appellant and his
counsel, the [trial] court accepted [] appellant’s plea
and scheduled sentencing for a separate date. A
presentence investigation (PSI) was ordered to be
completed by the Luzerne County Adult Probation and
Parole Department prior to sentencing.
[Footnote 2] [] Appellant [pled] guilty to
and admitted to facts supporting his
convictions for IDSI charged at counts
one (1) and two (2) for criminal conduct
with the same victim on August 4th and 5th
of 2018.
On July 1, 2019, [] appellant appeared before this
court for sentencing. We considered the submissions
of the parties, the PSI, and the applicable sentencing
guidelines. Thereafter, on each of the two counts for
which he [pled] guilty, we sentenced [] appellant
within the standard range of the applicable guidelines
to consecutive terms of incarceration for not less than
sixty-six (66) months but no more than one hundred
and eighty (180) months. The sentences were
ordered to run consecutively and thus [] appellant’s
aggregate minimum sentence is one hundred and
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thirty two (132) months to three hundred and sixty
(360) months.
During the sentencing hearing, [] appellant’s counsel
indicated his intention to file a post-sentence motion
“objecting to the constitutionality of the present
SORNA” Sexual Offender Registration Notification Act,
42 Pa.C.S.A. [§] 9799.10 et seq. We noted
[] appellant’s objection and overruled it asking the
assistant district attorney representing the
Commonwealth to provide [] appellant with notice of
his reporting requirements by reading them aloud on
the record. [] Appellant was not determined to be [an
SVP] pursuant to 42 Pa.C.S.[A.] §9799.24(e). At the
conclusion of the sentencing hearing, [] appellant was
advised of his post-sentence and appellate rights and
remanded.
On July 8, 2019, [] appellant filed a counseled post-
sentence motion raising constitutional challenges to
SORNA as applied to him. We note that the issues
that [] appellant raised in his post-sentence motion
are not precisely the same the [sic] issues raised in
his concise statement. After careful review, we denied
appellant’s post-sentence motions by order dated
October 21, 2019.
On November 19, 2019, [] appellant filed a notice of
appeal. Thereafter, we ordered [] appellant to file a
concise statement pursuant to Pa.R.A.P. 1925(b) and
directed the Commonwealth to respond thereto.
[] Appellant’s concise statement of matters
complained of [on] appeal pursuant to
Pa.R.A.P. 1925(b) was filed on December 26, 2019
and was received by the trial court on January 7,
2020.
Trial court opinion, 2/28/20 at 1-3 (extraneous capitalization, some citations,
and footnote 3 omitted).
Appellant raises the following issues for our review:
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1. Whether SORNA II contravenes the 5th, 6th and
14th Amendments of the United States
Constitution and Article 1, § 1 of the
Pennsylvania Constitution as a criminal
punishment, without appropriate due process
requiring that each fact necessary to support
the imposition of punishment over which the
court has no control is submitted to a jury and
proven beyond a reasonable doubt under
Apprendi v. New Jersey, 530 U.S. 466 (2000)
and Alleyne v. United States, [570 U.S. 99]
(2013)?
2. Whether a sentence requiring [a]ppellant to
register under SORNA or SORNA II,
Subchapter H of Act 29 of 2018, is illegal
because it imposes a punishment is not
statutorily authorized under the Pennsylvania
Sentencing Code (42 Pa.C.S.A. § 9721 et seq.)
and violates the Separation of Powers Doctrine?
Appellant’s brief at 2.
The crux of appellant’s argument is that registration requirements under
Revised Subchapter H in SORNA II are punitive in nature and unconstitutional
because they made insufficient changes to SORNA. (Appellant’s brief at 6-20.)
Specifically, appellant contends that Revised Subchapter H violates his due
process rights under the United States and Pennsylvania Constitutions
because it increases punishment based on facts found by the legislature as
opposed to a jury in violation of Apprendi and Alleyne. (Id.) For the
following reasons, we disagree.
When an appellant challenges the constitutionality of
a statute, the appellant presents this Court with a
question of law. Our consideration of questions of law
is plenary. A statute is presumed to be constitutional
and will not be declared unconstitutional unless it
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clearly, palpably, and plainly violates the constitution.
Thus, the party challenging the constitutionality of a
statute has a heavy burden of persuasion.
Commonwealth v. Howe, 842 A.2d 436, 441 (Pa.Super. 2004).
We find that a brief examination of the recent case law concerning the
various constitutional challenges to sexual offender registration in this
Commonwealth, and the legislative responses thereto, is relevant to the issues
now on appeal.
On December 20, 2012, the Sex Offender Registration and Notification
Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10–9799.41, became effective. The
stated purpose of SORNA was “[t]o bring the Commonwealth into substantial
compliance with the Adam Walsh Child Protection and Safety Act of 2006
(Public Law 109-248, 120 Stat. 587).” 42 Pa.C.S.A. § 9799.10(1). In line
with the federal requirements, SORNA created a three-tier registration system
based upon the severity of the underlying criminal offense. Id. at § 9799.14-
9799.15. An offender that is required to register is subject to prosecution for
failure to comply under 18 Pa.C.S.A. § 4915.1.
On July 19, 2017, in Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2017), cert. denied, U.S. , 138 S. Ct. 925 (2018), a plurality of our
supreme court held that the registration provisions of SORNA were punitive in
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nature, pursuant to the seven-factor test2 set forth in Kennedy v.
Mendoza-Martinez, 372 U.S. 144 (1963). Muniz, 164 A.3d at 1218-1220.
The Muniz court found that application of those registration provisions to
offenders who committed their crimes prior to SORNA’s effective date violated
the ex post facto clauses of the United States and Pennsylvania
Constitutions. Id.
Shortly thereafter, this court extended our Muniz rationale to invalidate
SORNA’s provisions governing the determination of whether a particular
offender is an SVP. Specifically, in Commonwealth v. Butler, 173 A.3d 1212(Pa.Super. 2017) (“Butler I”), reversed, 226 A.3d 972 (Pa. 2020)
(“Butler II”), we held that the provision of SORNA requiring a court to
designate a defendant as an SVP by clear and convincing evidence violates
the federal and state constitutions because it increases a defendant’s criminal
2The seven factors for determining whether a statute is punitive in nature are
commonly referred to as the Mendoza-Martinez factors:
[w]hether the sanction involves an affirmative
disability or restraint[;] whether it has historically
been regarded as a punishment[;] whether it comes
into play only on a finding of scienter[;] whether its
operation will promote the traditional aims of
punishment—retribution and deterrence[;] whether
the behavior to which it applies is already a crime[;]
whether an alternative purpose to which it may
rationally be connected is assignable for it[;] and
whether it appears excessive in relation to the
alternative purpose assigned . . . .
Kennedy, 372 U.S. at 168-169 (internal footnotes omitted).
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penalty without the fact-finder’s making necessary factual findings beyond a
reasonable doubt. Butler I, 173 A.3d at 1218.
In response to Muniz and Butler I, the Pennsylvania General Assembly
revised SORNA by passing Acts 10 and 29 of 2018 (also referred to as
“SORNA II”).3 The express purpose of both legislative enactments was to cure
SORNA’s constitutional defects. See 42 Pa.C.S.A. § 9799.51(b)(4) (stating,
“it is the intention of the General Assembly to address [Muniz and Butler].”).
The new statute divides sex offender registration into two categories,
depending on the date that the underlying offense occurred. Specifically,
through Act 10, as amended in Act 29, the General Assembly created
Subchapter I, which addresses sexual offenders who committed an offense on
or after April 22, 1996, but before SORNA’s effective date, December 20,
2012. See 42 Pa.C.S.A. §§ 9799.52. Our General Assembly also modified
Subchapter H’s registration requirements for those offenders convicted of
committing offenses that occurred on or after December 20, 2012, which is
relevant to the case sub judice. Id. at § 9799.11(c).
Thereafter, on March 26, 2020, our supreme court reversed Butler I,
concluding that the stated purpose of Revised Subchapter H was non-punitive
in nature. Butler II, 226 A.3d at 987. Specifically, the Butler II court held
that “the procedure for designating individuals as SVPs under
3 See Act of Feb. 21 2018, P.L. 27, No. 10 (“Act 10”); Act of June 12, 2018,
P.L. 1952, No. 29 (“Act 29”).
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Section 9799.24(e)(3) is not subject to the requirements of Apprendi and
Alleyne and remains constitutionally permissible.” Id. at 976.
Although Butler II may initially appear dispositive of this matter, we
emphasize that Butler II concerns the registration provisions of Revised
Subchapter H applicable to SVPs. In this case, the SOAB concluded that
appellant did not meet the criteria for designation as an SVP. (Notes of
testimony, 7/1/19 at 2; trial court opinion, 2/28/20 at 3.) Accordingly,
Butler II is not applicable to him. See Commonwealth v.
Muhammad, A.3d , 2020 WL 6245269 at *6 n.6 (Pa.Super. filed
October 23, 2020) (stating, “[t]he trial court herein did not designate
Appellant [as] an SVP, so this case does not relate in any way to SORNA’s SVP
provisions or to the analysis of the SVP provisions in Butler”); see also
Commonwealth v. Torsilieri, 232 A.3d 567, 572 n.2 (Pa. 2020) (holding
that, “as Butler II involves provisions related to the SVP designation process,
it is not relevant to Appellee, who was not designated an SVP”).
Recently, on June 16, 2020, our supreme court was faced with
addressing the constitutionality of the provisions in Revised Subchapter H that
are applicable to non-SVPs in Torsilieri, infra. In Torsilieri, a defendant
was convicted of aggravated indecent assault and indecent assault and
claimed that SORNA II was unconstitutional on its face by creating an
irrebuttable presumption that all sexual offenders pose a high risk of
recidivism. Id. at 572-573. The defendant argued that the presumption that
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all sex offenders are dangerous and pose a high risk of recidivism,
necessitating registration, was not supported by current research and
threatens public safety by preventing the re-integration of offenders as
law-abiding citizens. Id. The trial court agreed, finding the registration
provisions of Revised Subchapter H unconstitutional based largely on the
scientific evidence the defendant had advanced at the hearing. Id. at 574-
575. However, on appeal, the Torsilieri court 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 and that a remand was
necessary to determine whether Revised Subchapter H amounts to criminal
punishment. Id. at 587-588.4
Turning to the instant matter, our review reveals that appellant fails to
make a cogent argument attacking SORNA II as unconstitutional. The record
reflects that although appellant identified several aspects of SORNA II that
have remained virtually unchanged since SORNA I, he failed to conduct a
thorough analysis of the Mendoza-Martinez factors in his brief, nor
demonstrated that the registration provisions of Revised Subchapter H
4 We further recognize that during the pendency of this appeal, our supreme
court decided Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020), on
July 21, 2020. In Lacombe, our supreme court held that Revised
Subchapter I of SORNA II is non-punitive and does not violate the
constitutional prohibition against ex post facto laws. Id. at 626-627. As
Lacombe applies only to Revised Subchapter I, and the registration
requirements at issue in the instant matter arise under Revised Subchapter H,
Lacombe is not relevant to our disposition.
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applicable to non-SVPs “clearly, palpably, and plainly violate the state and
federal ex post facto clauses.” See Commonwealth v. Cosby, 224 A.3d
372, 431 (Pa.Super. 2019) (holding that appellant failed to develop his
challenge to the constitutionality of SORNA II where he cited, but did not
adequately apply, the Mendoza-Martinez test to challenged provisions of
SORNA II), appeal granted in part, 236 A.3d 1045 (Pa. 2020).5 It follows
that such discussion would be critical to any analysis of whether the
registration provisions of Revised Subchapter H of SORNA II applicable to
non-SVPs are punitive and, thus, unconstitutional.
Moreover, we note that, unlike the defendant in Torsilieri, appellant
did not adequately argue that Revised Subchapter H deprived him of
procedural due process because it creates an irrebuttable presumption of
recidivism, thus depriving him of his right to his reputation without notice and
opportunity to be heard. Accordingly, for all the foregoing reasons, appellant’s
first claim must fail.
Appellant next argues that Revised Subchapter H is unconstitutional
because it violates the separation of powers doctrine by effectively removing
the trial court’s ability to fashion an individualized sentence. (Appellant’s brief
at 20-26.) We find that the trial court comprehensively addressed this claim
5 Our supreme court’s partial grant of allowance of appeal in Cosby was on
grounds unrelated to the constitutionality of SORNA II.
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in its February 28, 2020 opinion, and we adopt its well-reasoned analysis as
our own:
Appellant asks if SORNA violates the separation of
powers doctrine. In answer, we submit that it does
not. The General Assembly has “the exclusive power
to pronounce which acts are crimes, to define crimes,
and to fix the punishment for all crimes.”
Commonwealth v. Martin, 205 A.3d 1247(Pa.Super. 2019)[, q]uoting Commonwealth v.
Eisenberg, 98 A.3d 1268 (Pa. 2014). The legislature
has authorized the courts to use discretion and impose
specific punishments. 42 Pa.C.S.[A.] § 9721. While
SORNA being characterized as a punishment had
necessary effect on the retroactive application of its
provisions in Muniz, we see no reason why
characterizing SORNA’s requirements as a
punishment would diminish the authority of the
General Assembly to impose such a sanction.
Accordingly, [a]ppellant’s second issue is without
merit.
Trial court opinion, 2/28/20 at 7 (citation formatting amended).
For all the foregoing reasons, we find that appellant has failed to satisfy
his burden to prove that the applicable registration provisions in Revised
Subchapter H “clearly, palpably, and plainly” violate the constitution. Cosby,
224 A.3d at 431; see also Howe, 842 A.2d at 441. Accordingly, we affirm
appellant’s July 1, 2019 judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2020
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