Com. v. Labar, T. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TYLER LABAR :
:
Appellant : No. 3412 EDA 2019
Appeal from the Judgment of Sentence Entered August 1, 2019
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000369-2018
BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED JANUARY 5, 2021
Tyler Labar (Appellant) appeals from the judgment of sentence imposed
after he pled guilty to strangulation and indecent assault without
complainant’s consent.1 On appeal, Appellant challenges the constitutionality
of his classification as a Tier I sex offender under Pennsylvania’s Sex Offender
Registration and Notification Act (SORNA),2 and the requirement that he
register as a sex offender for 15 years. Upon review, we vacate and remand.
Appellant’s convictions arose from a sexual assault that occurred on
January 26, 2018. Appellant sexually assaulted the victim after a night of
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2718(a), 3126(a)(1).
2 42 Pa.C.S.A. §§ 9799.10–9799.41.
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drinking. He was charged with the above crimes and on April 1, 2019, entered
a guilty plea. On August 1, 2019, the trial court sentenced Appellant to 248
days to 24 months less 1 day of incarceration, followed by two years of
probation. Because Appellant had already served the minimum portion of his
sentence, he was immediately paroled. The trial court also classified Appellant
as a Tier I sex offender under SORNA, subjecting him to a 15-year registration
and reporting period.
On August 7, 2019, Appellant filed a post-sentence motion raising the
Chester County Court of Common Pleas decision in Commonwealth v.
Torsilieri, and seeking, inter alia, modification of his sentence to remove the
requirement that he register as a Tier I sex offender for 15 years. Appellant
argued that Subchapter H of SORNA was unconstitutional. On October 25,
2019, the trial court, without holding a hearing, denied Appellant’s post-
sentence motion. The court stated:
This appeal questions the constitutionality of SORNA, based on
the Chester County Court of Common Pleas’ decision in
Commonwealth v. Torsilieri, 15 CR 1570 2016 (Pa. Comm.
Pls. 2016). Torsilieri is now pending on appeal to the
Pennsylvania Supreme Court. See 37 MAP 2018 (Pa. 2018).
Following acceptance of the appeal, an en banc panel of this Court
considered similar arguments and upheld SORNA as facially
constitutional. Commonwealth v. Tomsic, 1517 CR 2016 (Aug.
19, 2019) (en banc) (amended order). We therefore rely on that
decision while we await the Pennsylvania Supreme Court’s ruling.
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Trial Court Opinion, 1/14/20, at 1-2. This timely appeal followed.3
Appellant presents the following issues for review:
I. Whether SORNA is overbroad and violates Appellant’s Due
Process rights afforded him under the United States and
Pennsylvania Constitutions.
II. Whether SORNA’s registration requirements, as applied to
Appellant by the trial court, constitute criminal punishment
without an opportunity to challenge its imposition.
III. Whether SORNA violates [Appellant]’s fundamental right to
reputation afforded him under the Pennsylvania Constitution.
Appellant’s Brief at 8.
Appellant challenges the constitutionality of Subchapter H. Appellant
relies on the Chester County Court of Common Pleas decision in Torsilieri,
supra, which held that Subchapter H of SORNA was unconstitutional. At the
time Appellant filed his brief with this Court, the Torsilieri decision was
pending before the Pennsylvania Supreme Court. On June 16, 2020, the
Supreme Court issued its decision.
A jury convicted Torsilieri of aggravated indecent assault, 18 Pa.C.S.A.
§ 3125(a)(1), and indecent assault, 18 Pa.C.S.A. § 3126(a)(1).
Commonwealth v. Torsilieri, 232 A.3d 567, 572 (Pa. 2020). The trial court
sentenced Torsilieri to an aggregate term of one year less one day to two
years less one day of incarceration, followed by three years of probation. Id.
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3 Both the trial court and Appellant have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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at 573. Additionally, Torsilieri’s aggravated indecent assault conviction
rendered him a Tier III sex offender under Subchapter H of SORNA, subject
to lifetime registration and reporting requirements. Id. (citing 42 Pa.C.S.A. §
9799.14 (d)(7)).
Following post-sentence motions in which Torsilieri challenged the
constitutionality of Subchapter H of SORNA, the trial court determined:
[T]he registration and notification provisions of Revised
Subchapter H violated [Torsilieri’s] right to due process by
impairing his right to reputation, as protected by the Pennsylvania
Constitution, through the utilization of an irrebuttable
presumption. The court also concluded that the statute violated
his right to due process under the United States and Pennsylvania
Constitutions because the statutory system failed to provide the
requisite notice and opportunity to be heard. It also concluded
that Revised Subchapter H violated the separation of powers
doctrine because the General Assembly’s enactment of Revised
Subchapter H essentially removed the trial court’s ability to
fashion an individualized sentence. Finally, the court held that the
statute violated Alleyne[4] and Apprendi[5] by allowing “the
imposition of enhanced punishment based on an irrebuttable
presumption of future dangerousness that is neither determined
by the finder of fact nor premised upon proof beyond a reasonable
doubt.” Tr. Ct. Order, July 10, 2018, at 3. The court, therefore,
vacated [Torsilieri]’s sentence to the extent it required him to
comply with Revised Subchapter H’s sexual offender registration
provisions.
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4 Alleyne v. United States, 570 U.S. 99 (2013) (holding that any fact that
increases the mandatory minimum sentence for a crime is a fact that must be
submitted to the jury and found beyond a reasonable doubt).
5 Apprendi v. New Jersey, 530 U.S. 466 (2013) (concluding that other than
a prior conviction, any fact that increases the penalty for a crime beyond the
statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt).
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Torsilieri, 232 A.3d at 574.
The Commonwealth filed a direct appeal to the Pennsylvania Supreme
Court, invoking the Supreme Court’s jurisdiction over decisions from the
Courts of Common Pleas declaring statutes unconstitutional, pursuant to 42
Pa.C.S.A. § 722(7). Id.
Upon review, the Supreme Court in Torsilieri recognized two broad
categories in the trial court’s conclusions:
First, the court held that Revised Subchapter H violates
Pennsylvania’s due process protections through the
unconstitutional use of an irrebuttable presumption [that sex
offenders have a high risk of recidivation]. The trial court
considered this holding as implicating both procedural and
substantive due process protections. . . .
Second, the trial court held that Revised Subchapter H’s
registration and notification provisions are punitive in nature such
that they must comply with all constitutional and statutory
protections applicable to sentencing. Based on the determination
of punitive effect, the trial court concluded that the registration
requirements, which can result in lifetime registration branding an
offender as at high risk of recidivation, violated (1) the
requirements of Apprendi and Alleyne, (2) imposed sentences
in excess of the statutory maximum sentence, (3) constituted
cruel and unusual punishment, and (4) violated the separation of
powers doctrines by preventing trial courts from imposing
individualized sentences.
Id. at 581-82.
The Supreme Court further explained:
It is abundantly clear that the trial court’s various declarations
of Revised Subchapter H’s registration and notification provisions
as unconstitutional derived directly from the court’s acceptance of
and reliance upon [Torsilieri’s] experts’ evidence challenging the
legislative determinations underpinning Revised Subchapter H,
specifically (1) that all sexual offenders pose a high risk of
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recidivation and (2) that the tier-based registration system of
Revised Subchapter H protects the public from the alleged danger
of recidivist sexual offenders.
Unfortunately, the procedural posture of this case prevents tidy
resolution of the matter by this Court. While [Torsilieri] presented
a colorable argument that the General Assembly’s factual
presumptions have been undermined by recent scientific studies,
we are unable to affirm the trial court’s several conclusions finding
Revised Subchapter H unconstitutional. We note that the
evidence of record does not demonstrate a consensus of scientific
evidence . . ., nor the “clearest proof” needed to overturn the
General Assembly’s statements that the provisions are not
punitive, which we have noted requires more than merely showing
disagreement among relevant authorities[.] We hesitate to find
these standards met by the stipulated admission of three experts’
affidavits, without an opportunity to weigh this evidence against
contrary evidence, if any exists.
* * *
As is apparent from the trial court findings, the evidence
presented by [Torsilieri] provides a colorable argument to debunk
the settled view of sexual offender recidivation rates and the
effectiveness of tier-based sexual offender registration systems
underlying the General Assembly’s findings as well as various
decisions of this Court and the United States Supreme Court.
Nevertheless, as the trial court did not have the benefit of the
opposing science, if any, the evidence currently in the record does
not provide a sufficient basis to overturn the legislative
determination. 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 [Torsilieri] has refuted the relevant legislative findings
supporting the challenged registration and notification provisions
of Revised Subchapter H.
Accordingly, we vacate that portion of the trial court’s order
declaring the registration requirements of Revised Subchapter H
of SORNA unconstitutional and remand for further proceedings in
accordance with this opinion.
Id. at 594-96 (footnote, citations, and quotations omitted).
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Thus, the Supreme Court determined that the trial court, in declaring
Subchapter H’s registration and reporting requirements unconstitutional,
relied on Torsilieri’s experts’ evidence challenging the legislative
determinations underpinning Revised Subchapter H. Id. at 596. The Court
stated that Torsilieri presented a “colorable argument to debunk” the General
Assembly’s presumptions regarding sex offender recidivism and the
effectiveness of tier-based sex offender registration systems. Id.
Nonetheless, the Court sought further development of the evidence relating
to the General Assembly’s presumption in order to determine if there was a
“consensus of scientific evidence . . . to find [the] presumption not universally
true[.]” Id. Accordingly, the Supreme Court concluded that the appropriate
course was to remand the case to the trial court to provide both parties the
opportunity to present additional evidence and to allow the trial court to weigh
that evidence in determining whether Torsilieri refuted the legislative
underpinnings of Subchapter H. Id.
A panel of this Court subsequently applied Torsilieri in
Commonwealth v. Mickley, 240 A.3d 957, 963 (Pa. Super. 2020). In that
case, Mickley filed a post-sentence motion relying on the arguments raised in
Torsilieri to challenge Subchapter H of SORNA, and was not afforded an
evidentiary hearing. Thus, we determined that the proper course of action
was to vacate the judgment of sentence and remand for an evidentiary
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hearing, “so the parties can present evidence for and against the relevant
legislative determinations. . .” Id.
Instantly, Appellant’s argument rests entirely on the Torsilieri decision.
Appellant states that he filed “this appeal to protect his rights in the event
that the law requiring him to register is declared unconstitutional or otherwise
invalidated requiring a resentence in this matter.” Appellant’s Brief at 12.
Like the defendant in Mickley, Appellant did not have the opportunity to
present evidence at a hearing. Therefore, in accordance with Torsilieri and
Mickley, we vacate the judgment of sentence and remand for an evidentiary
hearing.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/05/2021
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