Com. v. Kelly, P. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
PATRICK J. KELLY :
:
Appellant : No. 2162 EDA 2019
Appeal from the Order Entered June 27, 2019
In the Court of Common Pleas of Carbon County Criminal Division at
No(s): CP-13-CR-0000551-2013
BEFORE: SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 17, 2021
Appellant Patrick J. Kelly appeals the June 27, 2019 order of the Court
of Common Pleas of Carbon County denying his “Motion to Bar Applicability of
Sex Offender Registration and/or Petition for Writ of Habeas Corpus,” which
the lower court characterized as an untimely petition under the Post-
Conviction Relief Act (PCRA).1
This appeal is before us pursuant to the Pennsylvania Supreme Court’s
order of January 22, 2021, which vacated our June 29, 2020 disposition which
affirmed the lower court’s decision. The Supreme Court remanded for
reconsideration in light of its decision in Commonwealth v. Lacombe,
____Pa.____, 234 A.3d 602, 618 (2020), in which the Court “decline[d] to
find the PCRA, or any other procedural mechanism, is the exclusive method
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* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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for challenging sexual offender registration statutes.” After consideration of
Lacombe, we affirm the order dismissing Appellant’s filing, but do so on
grounds different than those of the lower court.2
On June 18, 2013, Appellant was charged with Aggravated Indecent
Assault of a Child, Aggravated Indecent Assault of a Complainant Less than
13 years old, Aggravated Indecent Assault of a Complainant less than 16 years
old, Indecent Assault of a Person Less than 13 years old, and Indecent
Exposure. The criminal information accused Appellant of committing said
crimes between January 1, 2011 and December 31, 2012. The criminal
information was later amended to include a charge of Indecent Assault.
On April 29, 2016, Appellant pled guilty to one count of Indecent
Assault. In his oral plea colloquy, Appellant agreed that he had committed
sexual assaults of a minor in a period “spanning the time frame of 2011 and
2012.” Notes of Testimony (N.T.), 4/29/16, at 4. Following an evaluation,
the Sexual Offender Assessment Board (SOAB) determined that Appellant was
not a sexually violent predator.
On July 5, 2016, the trial court imposed a sentence of incarceration. As
part of the plea process, Appellant gave written and verbal acknowledgment
that he would be required to register pursuant to Pennsylvania Sex Offender
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2 See Commonwealth v. Wilcox, 174 A.3d 670, 674 n.4 (Pa.Super. 2017)
(explaining that the Superior Court is not bound by the lower court’s rationale
and may affirm the lower court's order on any basis supported by the record).
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Registration and Notification Act (SORNA)3 for a fifteen-year period. Appellant
did not file a direct appeal.
On September 15, 2017, Appellant filed the instant “Motion to Bar
Applicability of Sex Offender Registration and/or Petition for Writ of Habeas
Corpus.” Appellant cited to Commonwealth v. Muniz, 640 Pa. 699, 164
A.3d 1189 (2017), in which our Supreme Court held that the retroactive
application of SORNA’s registration and reporting requirements violated the
ex post facto clauses of the United States and Pennsylvania Constitutions.
Appellant asserted that he cannot be required to comply with SORNA’s
registration requirements as his offenses occurred prior to the effective date
of the original SORNA statute (December 20, 2012).
In addition, Appellant claimed in his petition that the “retroactive
application of SORNA also violates Pennsylvania’s Due Process Clause because
it creates an irrefutable presumption of dangerousness, denying [Appellant]
the fundamental right of reputation.” Petition, 9/15/17, at 3. Appellant did
not develop this claim beyond this assertion.
On November 27, 2018, the lower court held a hearing on Appellant’s
petition. The parties focused on Appellant’s argument that he was not subject
to sex offender registration requirements as he alleged that his offenses were
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3 42 Pa.C.S.A. §§ 9799.10-9799.42 (“SORNA I”). SORNA was originally
enacted on December 20, 2011 and became effective December 20, 2012. As
discussed infra, SORNA I was later amended by Acts 10 and 29 of 2018
(known collectively as “SORNA II”). See Act of Feb. 21, 2018, P.L. 27, No.
10, §§ 1-20 (Act 10 of 2018); Act of June 12, 2018, P.L. 140, No. 29, §§ 1-
23 (Act 29 of 2018).
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committed before the effective date of the original SORNA statute. Neither
the parties nor the lower court acknowledged that SORNA was modified by Act
10 and Act 29 of 2018 (collectively referred to as “SORNA II”) after Appellant
filed his petition in this case. See supra note 1. At the evidentiary hearing
before the lower court, Appellant did not mention or present any evidence or
authority in support of his claim raised in his petition that SORNA created an
“irrefutable presumption of dangerousness.”
At the conclusion of the hearing, the lower court indicated that it would
take these matters under advisement and gave the parties an opportunity to
submit supplemental briefs in support of their respective positions.
On January 9, 2019, Appellant filed a “Brief in Support of Removal from
SORNA registration.” On January 10, 2019, Appellant filed a “Supplemental
Brief in Support of Removal from SORNA Registration” in which he raised new
issues that had not been included in his petition or addressed at the hearing.
Specifically, Appellant stated that “in addition to those arguments made
in [Appellant’s] original brief, [Appellant] supplements those arguments on
the basis of the decision of the Court of Common Pleas of Chester County,
Pennsylvania in Commonwealth v. Torsilieri, No. 15-CR-1570-2016,
wherein that Court found both SORNA facially unconstitutional on various
grounds.” Supplemental Brief, 1/10/19, at 1. Appellant listed the issues that
the defendant presented to the Court of Common Pleas in Torsilieri without
further development. Appellant noted that this case was pending before the
Pennsylvania Supreme Court at that time.
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Thereafter, on June 27, 2019, the lower court issued a memorandum
and order, construing Appellant’s filing as an untimely PCRA petition that failed
to invoke any of the PCRA timeliness exceptions. In the alternative, the lower
court also asserted that even if Appellant’s petition were deemed to be timely
filed, it found Appellant’s arguments pursuant to Muniz were meritless. The
lower court made a specific finding that Appellant’s own testimony and plea
colloquies demonstrated that “his criminal conduct occurred in part after the
December 20, 2012 SORNA effective date and lacks in part the
unconstitutional retroactive application of SORNA to [Appellant] that has been
ruled impermissible in [Muniz].” Trial Court Opinion (T.C.O.), 6/28/19, at 19.
In addition, the lower court indicated that it “decline[d] to substantively
address [Appellant’s] contention that SORNA in its entirety violates the
Pennsylvania and United States Constitution.” T.C.O., 6/28/19, at 19 n.7.
On appeal, this Court affirmed the lower court’s order denying
Appellant’s petition as untimely filed under the PCRA. Commonwealth v.
Kelly, 2162 EDA 2019 (Pa.Super. June 29, 2020) (unpublished
memorandum). This Court did not reach the merits of Appellant’s claims.
Appellant filed a Petition for Allowance of Appeal to the Supreme Court.
On July 21, 2020, our Supreme Court filed its decision in Lacombe, in
which Supreme Court rejected the proposition that challenges to sexual
offender registration requirements must be raised in a timely PCRA petition
and “declined to find that the PCRA, or any other procedural mechanism, is
the exclusive method for challenging sexual offender registration statutes.”
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Lacombe, 234 A.3d at 617. The Court recognized that “frequent changes to
sexual offender registration statutes, along with more onerous requirements
and retroactive application, complicate registrants’ ability to challenge new
requirements imposed years after their sentences become final.” Id. at 617.
Accordingly, the Supreme Court concluded that the trial court had jurisdiction
to consider Lacombe's “Petition to Terminate His Sexual Offender Registration
Requirements.”
Thereafter, in the instant case, the Supreme Court granted Appellant’s
petition for allowance of the appeal, vacated our June 29, 2020 disposition
and remanded this case for our consideration of its decision in Lacombe.
In light of the Supreme Court’s holding in Lacombe, we conclude that
Appellant’s September 15, 2017 “Motion to Bar Applicability of Sex Offender
Registration and/or Petition for Writ of Habeas Corpus” should not be
construed as a PCRA petition as the lower court had jurisdiction to consider
Appellant’s challenges to his sex offender registration requirements outside
the confines of the PCRA.
However, we need not remand the case for the lower court for further
proceedings as the lower court included an alternative merits analysis in its
opinion filed pursuant to Pa.R.A.P. 1925(a). Accordingly, we may address the
merits of the claim Appellant raised in his petition. In his concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), Appellant
raised the following issues for review:
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1. Whether the Honorable Trial Court’s finding that the crime of
conviction of Indecent Assault, graded as a misdemeanor of the
second degree, was committed on or after the effective date of
SORNA, was an abuse of discretion and against the weight of
the evidence?
2. Whether SORNA applies to Appellant’s conviction for Indecent
Assault, graded as a misdemeanor of the second degree, where
the predicate facts established that the crime was not
committed on or after December 20, 2012, the effective date
of SORNA?
3. Whether that portion of the sentence requiring Appellant to
comply with SORNA should be vacated?
4. Whether the Trial Court erred in finding that Appellant’s filing
was untimely?
5. Whether SORNA is unconstitutional on its face and as applied
to Appe[]llant, for the following reasons:
a. Whether SORNA (Act 10) denies the Appellant due
process under the Pennsylvania Constitution because it
creates an irrebuttable presumption that those convicted
of enumerated offenses “pose a high risk of committing
additional sexual offenses” depriving those individuals of
their fundamental right to reputation without notice and
an opportunity to be heard?
b. Whether SORNA (Act 10) denies 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?
c. Whether SORNA (Act 10) violates substantive due
process under the State 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?
d. Whether the recent amendment to SORNA, Act 10, is in
all material respects identical to SORNA and therefore a
punitive law?
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e. Does SORNA (Act 10), as a penal law, violate the
separation of powers doctrine because it usurps the
exclusive judicial function of imposing a sentence?
f. Whether SORNA contravenes the 5th, 6th, and 14th
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
beyond the authorized statutory maximum is submitted
to a jury and proven beyond a reasonable doubt pursuant
to Apprendi v. New Jersey, 530 U.S. 466 (2000) and
Alleyne v. United States, 1570 U.S. 99 (2013)?
g. Whether the imposition of mandatory fi[]fteen year sex
offender registration for all Tier II offenses under SORNA
is a cruel and unusual punishment in violation of the
Eight[h] and Fourteenth Amendments to the United
States Constitution and Article I, Section 13 of the
Pennsylvania Constitution?
Concise Statement, 8/12/19, at 1-3.
In the first three claims, Appellant argued that the lower court erred in
refusing to vacate his sex offender registration requirements under SORNA as
he alleged that all of his offenses occurred prior to the effective date of the
original SORNA statute. As noted above, in his petition, Appellant cited to
Muniz for the proposition that the retroactive application of SORNA violated
the ex post facto clauses of the United States and Pennsylvania Constitutions.
Appellant alleged that there was no support for the lower court’s factual
finding that Appellant’s crimes were committed after December 20, 2012, the
effective date of SORNA I.
We initially note that Appellant did not raise or develop this claim in his
appellate brief. “[W]here an appellate brief fails to provide any discussion of
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a claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived.”
Commonwealth v. Donoughe, ___A.3d___, 2020 PA Super 288 (Pa.Super.
2020) (quoting Commonwealth v. Johnson, 604 Pa. 176, 191, 985 A.2d
915, 924 (2009)). As such, Appellant’s claim is waived on appeal.
However, we feel compelled to note that the neither the parties nor the
lower court recognized that, before the evidentiary hearing was held in this
case, the Legislature passed Acts 10 and 29 of 2018 (“SORNA II”), which
amended the original legislation in response to the Supreme Court’s decision
in Muniz. As our Supreme Court recently explained in Commonwealth v.
Torsilieri, ___ Pa.____, 232 A.3d 567 (2020),
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. In essence,
Revised Subchapter H retained many of the provisions of SORNA,
while Subchapter I imposed arguably less onerous requirements
on those who committed offenses prior to December 20, 2012, in
an attempt to address this Court's conclusion in Muniz, that
application of the original provisions of SORNA to these offenders
constituted an ex post facto violation.
Id. at 580. This Court has clarified that “Subchapter I was designed to ensure
that those required to retroactively register under SORNA—and therefore
entitled to relief following Muniz—will still have to do so. Commonwealth
v. Mickley, 240 A.3d 957, 958 n.3 (Pa.Super. 2020).
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At the time of the lower court’s hearing on Appellant’s petition in this
case, Appellant was no longer subject to the requirements of SORNA I as the
General Assembly had enacted SORNA II. As such, the lower court erred in
relying on SORNA I and should have assessed whether Appellant was required
to register under Revised Subchapter H or Subchapter I of SORNA II.
Commonwealth v. Smith, 240 A.3d 654, 657 (Pa. Super. 2020) (noting that
“[b]ecause offender registration requirements evolve pursuant to the
legislative decisions of our General Assembly, registrants must comply with
current law”) (emphasis in original).
The parties do not dispute that Appellant pled guilty to offenses that
occurred before December 20, 2012. The lower court found that Appellant
pled guilty to criminal conduct with a date range beginning on January 1, 2011
and ending on December 31, 2012. This Court has held that “when an
appellant’s offenses straddle the effective dates of Subchapters H and I or
SORNA, he is entitled to the lower reporting requirements in Subchapter I….”
Commonwealth v. Alston, 212 A.3d 526, 530 (Pa.Super. 2019). As a result,
we find that Appellant is subject to the reporting requirements set forth in
Subchapter I.4
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4 Moreover, to the extent that the lower court should have reviewed
Appellant’s ex post facto claim in light of his current registration requirements
under Subchapter I, we note that in Lacombe, our Supreme Court held that
“Subchapter I is nonpunitive and does not violate the constitutional prohibition
against ex post facto laws.” Lacombe, 234 A.3d at 605–606.
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In Appellant’s remaining claim on appeal, Appellant argues that SORNA
is unconstitutional in its entirety for various reasons, including those raised
before the Court of Common Pleas of Chester County in Commonwealth v.
Torsilieri, No. CP-15-CR-1570-2016 (C.C.P. Chester 2018), wherein the trial
court found SORNA facially unconstitutional on multiple grounds.5
However, Appellant did not raise these claims before the lower court in
his September 25, 2017 “Motion to Bar Applicability of Sex Offender
Registration and/or Petition for Writ of Habeas Corpus.” To the extent that
Appellant made a general allegation in his petition that SORNA violated his
constitutional right of reputation through an irrefutable presumption, we note
that Appellant did not mention this claim at the evidentiary hearing or attempt
to provide any evidence, citation to authority, or analysis to support this bald
assertion.
As such, we agree with the trial court that all of these issues are waived
as our rules of appellate procedure provide that “[i]ssues not raised in the trial
court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P.
302(a). Moreover, this Court has recently found that a defendant’s failure to
present scientific evidence to support his claim that the underlying legislative
policy in Subchapter H infringes on his constitutional rights resulted in waiver
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5 We acknowledge that the Supreme Court has since filed a decision in
Commonwealth v. Torsilieri, ___Pa.___, 232 A.3d 567 (2020). Given that
our conclusion that Appellant failed to properly preserve a challenge on the
same theory before the trial court, we need not discuss the holding in that
decision.
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as the appellant “failed to satisfy his burden to prove that Revised Subchapter
H provisions applicable to him clearly, palpably, and plainly violate the
constitution.” Commonwealth v. Manzano, 237 A.3d 1175, 1182
(Pa.Super. 2020).
We are not persuaded by Appellant’s claim that he properly raised these
claims before the trial court in his January 10, 2019 “Supplemental Brief in
Support of Removal from SORNA Registration.” Appellant did not raise these
claims in his petition or seek the lower court’s permission to file an amended
petition at any time, but listed these issues in a supplemental brief filed after
the evidentiary hearing on Appellant’s petition had been held.
As such, it was proper for the lower court to decline to address the
merits of these claims, which were not properly preserved in a related
challenge in Appellant’s petition or in an authorized amended petition. This
Court has held:
[a] petition for habeas corpus must specifically aver facts which,
if true, would entitle the relator to an award of a writ of habeas
corpus and a hearing thereon. Moreover, it is a general rule that
the petition may be denied summarily and without a hearing
where it fails to allege facts making out a prima facie case for the
issuance of the writ.
Balsamo v. Mazurkiewicz, 611 A.2d 1250, 1253 (Pa.Super. 1992) (citations
omitted).
For the foregoing reasons, we affirm the order dismissing Appellant’s
petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2021
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