Com. v. Torres, J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JUSTIN TORRES :
:
Appellant : No. 2666 EDA 2019
Appeal from the Judgment of Sentence Entered July 16, 2019
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0002678-2018
BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 07, 2020
Appellant, Justin Torres, appeals from the judgment of sentence of 3-6
years’ incarceration imposed following his guilty plea to aggravated indecent
assault (“AIA”), 18 Pa.C.S. § 3125. The trial court ordered Appellant to
comply with the Sexual Offenders Registration and Notification Act (“SORNA
I”), 42 Pa.C.S. § 9799.10, et. seq., as modified by Acts 10 and 29 of 20181
(“SORNA II”), as a Tier III offender. Appellant presents various arguments
challenging the constitutionality of SORNA II. After careful review, we vacate
the portion of Appellant’s judgment of sentence deeming him a Tier III
offender under SORNA II, and remand for further proceedings consistent with
this memorandum.
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* Retired Senior Judge assigned to the Superior Court.
1Act of Feb. 21, 2018, P.L. 27, No. 10 (Act 10); Act of June 12, 2018, P.L.
140, No. 29 (Act 29).
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On March 29, 2019, Appellant pled guilty to AIA. The facts underlying
Appellant’s guilty plea are not germane to this appeal. Subsequently, on July
16, 2019, the trial court sentenced Appellant to 3-6 years’ incarceration, and
ordered him to register as a Tier III offender2 under SORNA II. “On July 19,
2019, an en banc panel of [the Court of Common Pleas of Monroe County]
that had been empaneled to hear a variety of challenges to SORNA [II]
entered an order (the “SORNA Order”) denying constitutional challenges to
SORNA [II] raised in several other cases.” Trial Court Opinion (“TCO”),
10/11/19, at 1.
Appellant filed a timely post-sentence motion on July 26, 2019, in which
he challenged the constitutionality of SORNA II. At that time, our Supreme
was still considering the case of Commonwealth v. Torsilieri, No. 37 MAP
2018, 2020 WL 3241625 (Pa. filed June 16, 2020). In Appellant’s post-
sentence motion, he raised claims identical to the issues upon which the trial
court in Torsilieri deemed SORNA II unconstitutional. See Appellant’s Post-
Sentence Motion, 7/26/19, at 3 ¶ 11 (“The issues raised by [Appellant] in this
case, as well as in the case of … Torsilieri … are the same.”). Based on the
SORNA Order, the trial court denied Appellant’s post-sentence motion without
a hearing on August 13, 2019. TCO at 2.
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2 Inter alia, Tier III offenders are required to register for life with the
Pennsylvania State Police, 42 Pa.C.S. § 9799.15(a)(3), and are subject to
mandatory in-person reporting requirements quarterly. 42 Pa.C.S. §
9799.25(a)(3).
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Appellant filed a timely notice of appeal, and a timely, court-ordered
Pa.R.A.P. 1925(b) statement. The trial court issued its Rule 1925(a) opinion
on October 11, 2019.
Appellant now presents the following questions for our review:
1. Whether the [trial] court erred when it found that SORNA [II]
does not deny [A]ppellant due process under Articles 1 and 11 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?
2. Whether the court erred when it found that SORNA [II] does
not deny [A]ppellant procedural due process under Article 11 of
the Pennsylvania Constitution because it unlawfully impinges on
the right to reputation without notice and an opportunity to be
heard?
3. Whether the court erred when it found that SORNA [II] does
not deny [A]ppellant 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?
4. Whether the court erred when it found that SORNA [II] does
not violate substantive due process under the Pennsylvania and
Federal Constitutions, U.S. CONST. Amend. XIV, Pa. CONST. Art. 1,
§ 1, because SORNA [II] deprives individuals of inalienable rights
and fails to satisfy strict scrutiny?
5. Whether the court erred when it found that SORNA [II] does
not constitute criminal punishment and therefore violates the
separation of powers doctrine because it usurps the exclusive
judicial function of imposing a sentence?
6. Whether the court erred when it found that SORNA [II] does
not contravene the Fifth, Sixth, and Fourteenth Amendments [to]
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
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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)?
7. Whether the court erred when it found that SORNA [II] does
not constitute criminal penalties and therefore the imposition of
mandatory lifetime sex offender registration for nearly all of [T]ier
III offenses is not cruel and unusual punishment in violation of the
Eighth and Fourteenth Amendments to the United States
Constitution and Article 1, Section 13 of the Pennsylvania
Constitution?
Appellant’s Brief at 8-10. As all these claims are identical to the matters
considered by our Supreme Court in Torsilieri, which the Court recently
decided, Torsilieri guides our disposition in this case.
In Torsilieri, the Commonwealth appealed from the trial court’s order
deeming SORNA II unconstitutional under multiple legal theories pertaining to
the registration and reporting requirements set forth in Revised Subchapter
H3 of the statute. More specifically, the trial court had
concluded that the 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 and Apprendi 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
____________________________________________
3 The Supreme Court uses the term “Revised Subchapter H” to refer to
Subchapter H as it appears under SORNA II.
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a reasonable doubt.” The court, therefore, vacated [Torsilieri]’s
sentence to the extent it required him to comply with Revised
Subchapter H’s sexual offender registration provisions.
Torsilieri, 2020 WL 3241625 at *3.
The Torsilieri Court did not ultimately reach the merits of any of the
constitutional challenges at issue in the Commonwealth’s appeal, determining
instead that the factual record was not sufficiently developed in the trial court,
noting “the Commonwealth’s tactics at the post-sentence hearing …
potentially prevented the necessary development of the record.” Id. at *22.
In order to resolve all the constitutional challenges, the Torsilieri Court
concluded that factual and credibility findings were necessary regarding
whether “the legislative determinations underpinning Revised Subchapter H
[of SORNA II] … (1) that all sexual offenders pose a high risk of recidivation
and (2) that the tier-based registration system of Revised Subchapter H
protects the public from the alleged danger of recidivist sexual offenders …
have been undermined by recent scientific studies….” Id. at *21.
Although the Torsilieri Court recognized that “it will be the rare
situation where a court would reevaluate a legislative policy determination,”
it nevertheless determined that Torsilieri had presented evidence constituting
“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….” Id. at
*22. However, “as the trial court did not have the benefit of the opposing
science, if any, the evidence” before the Supreme Court in Torsilieri did “not
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provide a sufficient basis to overturn the legislative determination.” Id.
Accordingly, the Court concluded 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.” Id.
In the case sub judice, the trial court denied without a hearing
Appellant’s post-sentence motion, which raised explicitly identical claims to
those at issue in Torsilieri. In doing so, the court relied exclusively on the
SORNA Order. TCO at 2 (“The SORNA Order states the reasons why we denied
[Appellant]’s challenge and, therefore, adequately addresses his appeal
issue.”). The trial court further noted that all of Appellant’s constitutional
challenges “will ultimately rise or fall with our Supreme Court’s decision in the
Torsilieri appeal.” Id. However, the SORNA order contains no analysis of
the Torsilieri issues. See SORNA Order, 7/18/19, at 2-3. The order indicates
that a hearing was held, but does not identify what evidence, if any, was
presented at that hearing. Id. at 1.
Here, just as in Torsilieri, there is insufficient evidence of record to
decide any of the issues before us. Thus, following Torsilieri, we vacate the
order denying Appellant’s post-sentence motion and remand for a post-
sentence motion hearing at which the parties can present evidence for and
against the relevant legislative determinations discussed above. Otherwise,
we affirm Appellant’s judgment of sentence in all other respects.
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Judgment of sentence vacated in part, affirmed in part. Case
remanded for further proceedings consistent with this memorandum and
Torsilieri. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/20
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