Com. v. Kline, V. ( 2021 )

J-A10026-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VERNON GEORGE KLINE :
:
Appellant : No. 1180 EDA 2019
Appeal from the Judgment of Sentence Entered July 30, 2018
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0007906-2017
BEFORE: BOWES, J., SHOGAN, J., and PELLEGRINI, J.*
MEMORANDUM BY SHOGAN, J.: FILED: MARCH 22, 2021
Appellant, Vernon George Kline, appeals from the judgment of sentence
entered July 30, 2018, as made final by the order entered in the Court of
Common Pleas of Bucks County on March 18, 2019. We affirm the judgment
of sentence but vacate the order denying Appellant’s post-sentence motion
that challenged the constitutionality of the Sexual Offender Registration and
Notification Act (“SORNA”), 42 Pa.C.S. §§ 9799.10-9799.42, and remand for
further proceedings on these challenges.
The trial court set forth the pertinent procedural history of this case as
follows:
Pending before this [c]ourt are the consolidated motions
filed by seven defendants who have challenged the imposition of
the provisions of Subchapter H of the revised Sexual Offender
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* Retired Senior Judge assigned to the Superior Court.
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Registration and Notification Act (“SORNA”), codified in 42 Pa.C.S.
§§ 9799.10, et seq., effective June 12, 2018, that require them to
submit to an assessment and hearing to determine whether they
should be classified as a sexually violent predator (“SVP”) and
register as such. [Appellant] contend[s] that the recent revisions
to SORNA that were enacted pursuant to the Act of June 12, 2018,
P.L. 1952, No. 29 (“Act 29”) by the Pennsylvania General
Assembly in response to the decisions by the Supreme Court of
Pennsylvania in Commonwealth v. Muniz, 164 A.3d 1189, 1196-
98, 1201-04 ([Pa.] 2017), cert, denied sub nom. Pennsylvania v.
Muniz, 138 S.Ct. 925 (2018), and the Superior Court of
Pennsylvania in Commonwealth v. Butler, 173 A.3d 1212 (Pa,
Super. 2017), appeal granted, 47 WAL 2018 (Pa. July 31, 2018),
did not cure the constitutional infirmities of the registration
requirements of 42 Pa.C.S.A. § 9799.24 that were determined by
the [c]ourts to exist in those cases. According to [Appellant], the
current version of SORNA, enacted pursuant to Act 29, still
violates the United States and Pennsylvania Constitutions, and
therefore they should be relieved of compliance with those
assessment and registration requirements.
Due to the similarity and repetitive nature of the challenges
to the legality of SORNA filed by … seven Defendants, and in an
effort to avoid duplicative proceedings and possibly inconsistent
adjudications of issue, President Judge Jeffrey L. Finley granted
the Commonwealth’s request, which was joined by defense
counsel, to consolidate these matters. Judge Finley thereafter
issued an Order on August 17, 2018, directing that all appropriate
motions challenging SORNA were to be filed by August 31, 2018,
and all supporting legal memoranda were to be filed on or before
September 10, 2018. In addition, an en banc hearing[] was
scheduled for September 17, 2018.
* * *
The following is a brief procedural background [of the
above-captioned matter:]
* * *
Commonwealth v. Vernon George Kline
No. CP-09-CR-O007906-2017
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On March 27, 2018, [Appellant] entered guilty pleas to one
(1) count, of Criminal Use of Communication Facility,12 one (1)
count of Criminal Solicitation of Child Pornography,13 and one (1)
count of Criminal Solicitation of Indecent Assault of a Person Less
than 15 Years of Age.14 After the entry of guilty pleas, the trial
court judge, the Honorable Raymond F. McHugh, ordered the [Sex
Offender Assessment Board “SOAB”] to perform an SVP
assessment of [Appellant] and deferred [Appellant’s] sentencing
pending the completion of that SOAB evaluation.
12 18 Pa.C.S.A. § 7512(a).
13 18 Pa.C.S.A. § 902(a).
14 18 Pa.C.S.A. § 902(a).
[Appellant] waived his right to the completion of the SVP
assessment prior to his sentencing, and on July 30, 2018, Judge
McHugh sentenced [Appellant] to a period of incarceration of no
less than sixteen (16) months and no more than forty-eight (48)
months for the charge of Criminal Solicitation of Child
Pornography. No further penalties were imposed on the remaining
charges. [Appellant’s] period of incarceration was consecutive to
a previous sentence entered under No. CP-09-CR-0002768-2015,
which was in turn consecutive to a previous sentence entered
under No. CP-09-CR-0003872-2016. [Appellant] was also
ordered to register as a Tier III sexual offender. [On August 8,
2018, Appellant filed a timely post-sentence motion seeking
reconsideration of his sentence.]
On August 31, 2018, [while his original post-sentence
motion was pending, Appellant filed a supplemental post-sentence
motion titled:] “Motion to Declare SORNA 42 Pa.C.S.A. 9799 et
seq, Unconstitutional, Motion to Vacate/Bar SOAB Evaluation,
Objection to Commonwealth’s Petition for Sexually Violent
Predator Hearing, Motion for Continuance/Abeyance/Evidentiary
Hearing and/or Motion to Bar Imposition of an Illegal Sentence,”
which replicated the Motion filed by Defendant [Timothy Deshan]
Davis. [Appellant] filed a Brief in Support of his Motion on
September 12, 2018, and the Commonwealth filed its
Memorandum of Law in Opposition to [Appellant’s] Motion[] on
the same day.
Trial Court Opinion, 12/17/18, at 1-7.
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The trial court held an en banc hearing on September 17, 2018.
Thereafter, Appellant and the Commonwealth filed additional briefs with the
trial court. On November 29, 2018, while the en banc portion of Appellant’s
motion was pending, a single judge of the trial court held a hearing addressing
Appellant’s original post-sentence motion and denied Appellant’s requested
relief in his motion seeking reconsideration of his sentence.
On December 17, 2018, the en banc panel of the trial court filed a
memorandum opinion holding that the current version of SORNA, as amended
by Act 29, was punitive and therefore unconstitutional. The Commonwealth
filed a motion for reconsideration, arguing that simply because Act 29 was
punitive does not render it unconstitutional. The Commonwealth further noted
that the en banc court’s determination failed to identify the constitutional
provision violated as a result of Act 29 being punitive.
On February 13, 2019, the trial court held a brief hearing and ordered
the filing of additional briefs. The Commonwealth filed a brief on February 22,
2019, and Appellant filed a brief on February 25, 2019. On March 18, 2019,
the en banc panel of the trial court filed an order clarifying the implications of
the court’s December 17, 2018 determination. Specifically, the trial court’s
March 18, 2019 order vacated the portion of the December 17, 2018
memorandum opinion that held Act 29 to be unconstitutional. The court
further clarified that although punitive, Subchapter H of Act 29 is constitutional
except as to SVP determinations.
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Appellant filed this appeal on April 17, 2019. Appellant and the trial
court complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
A. Whether the Lower Court erred when it failed to find that
ACT 29 and its registration requirements violated the United
States Constitution and the enhanced protections under the
Pennsylvania Constitution on its face and as applied?
B. Whether the Lower Court erred when it failed to find that
ACT 29 and its registration requirements violated the United
States and Pennsylvania Constitution Due Process prohibition
against ex post facto laws?
C. Whether the Lower Court erred when it failed to find that
ACT 29 and its registration requirements violated United States
and Pennsylvania Constitutional Due Process protections because
it deprives Appellant of the Right to Reputation under the
Pennsylvania Constitution, it creates an irrebuttable presumption,
treats all offenders universally as high-risk, violates individualized
punishment, overly inclusive of offenders and charges, ignores
reasonable alternative means exist to identify offender risk,
denies any meaningful opportunity to be heard, exceeds the least
restrictive means requirement, and otherwise violates substantive
Due Process protections?
D. Whether the Lower Court erred when it failed to find that
ACT 29 and its registration requirements violate the United States
and Pennsylvania Constitutions as it constitutes cruel and unusual
punishment where registration is based upon empirically false
myths, fails to deter first time offenders, fails to reduce recidivism,
threatens public safety, forces registrants and their families to
suffer, creates an impassable barrier to reintegration into law-
abiding society, and fails to address each offender individually?
E. Whether the Lower Court erred when it failed to find that
ACT 29 and its registration requirements violate the United States
and Pennsylvania Constitutions’ Separation of Powers Doctrine, as
it gave judicial powers to the Legislature and Pennsylvania State
Police?
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F. Whether the Lower Court erred when it failed to find that
ACT 29 and its registration requirements violated United States
and Pennsylvania Constitutions’ Due Process provisions as it
increased the maximum sentence without proof beyond a
reasonable doubt to a jury in violation of Alleyne v. United
States, 570 U.S. 99 (2013), and that said provisions are not
severable?
Appellant’s Briefs at 4-5.
Prior to considering the issues set forth by Appellant, we first address
the procedural posture of this matter as it implicates our jurisdiction. Indeed,
the question of timeliness of an appeal is jurisdictional. Commonwealth v.
Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000).
Pursuant to Rule 903 of the Pennsylvania Rules of Appellate Procedure,
“the notice of appeal … shall be filed within 30 days after the entry of the order
from which the appeal is taken.” Pa.R.A.P. 903(a). “[T]ime limitations on the
taking of appeals are strictly construed and cannot be extended as a matter
of grace.” Commonwealth v. Valentine, 928 A.2d 346, 349 (Pa. Super.
2007) (quotations and citation omitted). See also Pa.R.A.P. 105(b) (“the
court may not enlarge the time for filing a notice of appeal”).
Pa.R.Crim.P. 720 addresses post-sentence procedures and appeals and
provides, in relevant part: “If the defendant files a timely post-sentence
motion, the notice of appeal shall be filed … within 30 days of the entry of the
order deciding the motion[.]” Pa.R.Crim.P. 720(A)(2)(a). In addition, Rule
720 permits the filing of supplemental post-sentence motions provided that
the decision on the supplemental post-sentence motion can be decided within
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the time limits set forth at Pa.R.Crim.P. 720(B)(3). Specifically, under Rule
720(B)(3)(a), “the judge shall decide the post-sentence motion, including any
supplemental motion, within 120 days of the filing of the motion.” Further,
“[i]f the judge fails to decide the motion within 120 days, or to grant an
extension as provided in paragraph (B)(3)(b), the motion shall be deemed
denied by operation of law.” Pa.R.Crim.P. 720(B)(3)(a).
When a post-sentence motion is denied by operation of law, the clerk of
courts is required to enter an order reflecting that the post-sentence motion
is deemed denied and serve a copy of the order on the parties. Pa.R.Crim.P.
720(B)(3)(c). The comment to Rule 720 instructs that “[u]nder paragraph
(B)(3)(a) [regarding time limits for the court’s decision on a post-sentence
motion], on the date when the court disposes of the motion, or the date when
the motion is denied by operation of law, the judgment becomes final for
purposes of appeal.” Pa.R.Crim.P. 720, cmt. Rule 720(A)(2)(b) expressly
links the timeliness of the notice of appeal to the date “of the entry of the
order denying the motion by operation of law” and, pursuant to the plain
language of the rule, the thirty-day period for filing a notice of appeal does
not begin to run until the requisite order has been entered. Moreover, we
have held that a clerk’s failure to follow the dictates of Rule 720(B)(3)(c)
constitutes a breakdown in the court system such that we may accept the
untimely appeal. See Commonwealth v. Braykovich, 664 A.2d 133, 138
(Pa. Super. 1995) (construing prior version of Rule 720 and holding that where
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the defendant fails to file his notice of appeal within thirty days of the date the
post-sentence motion is deemed denied by operation of law, but the clerk of
courts fails to “enter an order on behalf of the [trial] court ... [declaring] that
the post-sentence motion [wa]s deemed denied,” the notice of appeal is
technically untimely; however, the clerk’s failure to enter the requisite order
constitutes “a breakdown in the court system” and authorizes the Superior
Court to grant a nunc pro tunc appeal).
Our review of the record reflects that Appellant’s judgment of sentence
was entered on July 30, 2018. On August 8, 2018, Appellant filed a timely
post-sentence motion seeking reconsideration of his sentence. Thus, the trial
court had 120 days, or until December 6, 2018, in which to dispose of the
post-sentence motion. Pa.R.Crim.P. 720(B)(3)(a). While the original motion
was pending, Appellant filed, and the trial court accepted, a supplemental
post-sentence motion on August 31, 2018, in which he challenged various
aspects of SORNA. On November 29, 2018, the trial court denied Appellant’s
original post-sentence motion, but the supplemental post-sentence motion
challenging SORNA remained pending. The 120-day period in which to
address post-sentence motions tolled on December 6, 2018, without the trial
court addressing Appellant’s supplemental post-sentence motion. However,
the clerk of courts neither entered nor served upon the parties an order
reflecting that Appellant’s supplemental post-sentence motion was denied by
operation of law as required by Pa.R.Crim.P. 720(B)(3)(c). Consequently, the
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trial court ruled on Appellant’s supplemental post-sentence motion on
December 18, 2018, and then on March 18, 2019, when it addressed the
Commonwealth’s motion for reconsideration/clarification. In light of the fact
that the clerk of courts failed to follow the dictates of Rule 720(B)(3)(c), we
hold that said failure constitutes a breakdown in the court system.
Braykovich, 664 A.2d at 138. Accordingly, we conclude that the entry of the
order on March 18, 2019, was the triggering mechanism for the purposes of
this appeal, and we accept the notice of appeal filed by Appellant on April 17,
2019. Id.1
We next turn to the issues presented by Appellant. Herein, Appellant
raises challenges to the constitutionality of the order requiring him to register
under SORNA as a Tier III offender.
Commonwealth v. Mickley, 240 A.3d 957 (Pa. Super. 2020), instructs
that the proper remedy is to remand for an evidentiary hearing on Appellant’s
challenges to SORNA. In Mickley, this Court observed that the appellant’s
constitutional challenges to SORNA were identical to arguments raised in
Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020). The Torsilieri
____________________________________________
1 We note that Appellant purported to appeal from the trial court’s March 18,
2019 order denying his supplemental post-sentence motions. In
Commonwealth v. Chamberlain, 658 A.2d 395 (Pa. Super. 1995), we
explained that “the order denying post-sentence motions acts to finalize the
judgment of sentence for purposes of appeal. Thus, the appeal is taken from
the judgment of sentence, not the order denying post-sentence motions.” Id.,
at 397. We have corrected the caption accordingly.
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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. The Court in Torsilieri 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.” Id. at 587. Based on Torsilieri,
Mickley held:
Here, despite defense counsel’s attempt, no evidence was
presented at the hearing on Mickley’s post-sentence motion.
Thus, in accordance with Torsilieri, we vacate the order denying
Mickley’s post-sentence motion and remand for a hearing at which
the parties can present evidence for and against the relevant
legislation determinations discussed above.
Mickley, 240 A.3d at 963; see also Commonwealth v. Asher, ___ A.3d
___, 2020 PA Super 293, at *4 (Pa. Super., filed December 21, 2020) (citing
Torsilieri and Mickley and concluding that where the defendant preserved
his constitutional challenges to SORNA, but trial court denied relief without
developing factual record, remand was proper for hearing at which parties
could present evidence for and against relevant legislative determinations).
Upon review of the record, we conclude that the same remedy is
appropriate here. As noted by the Commonwealth, the SORNA issues raised
by Appellant are the same as those raised in Torsilieri. Commonwealth’s
Brief at 15 n.9. At the en banc trial court hearing held September 17, 2018,
Appellant’s counsel noted that the record was not complete and sought to
present into evidence various affidavits “relevant to the due process
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challenges.” N.T., 9/17/18, at 5. Appellant’s counsel indicated the desire to
create a record similar to Torsilieri. N.T., 9/17/18, at 5-6. However, the
Commonwealth was hesitant to stipulate to the admission of the evidence.
After extensive discussion and a brief recess, the en banc court reached the
following conclusion:
We’ve decided [to] proceed with the remaining arguments
but not proceed on the due process issue today, and we’re
ordering both sides to meet within ten days and to endeavor to
see whether or not you can reach an agreement as to what the
record will be, whether there will be a stipulation as to the
admissibility of affidavits and curriculum vitae for experts for us
to consider.
The second thing we’re asking you to meet and discuss is
for what purpose are we to consider those expert reports. See if
you can reach an agreement, and if you cannot, you’ll let us know
that as well and what your position is. And then we can decide
how we proceed on the due process issue.
Id. at 32-33.
The record further reflects that the parties were not able to reach an
agreement as requested. Moreover, the trial court failed to address the due
process claims presented by Appellant in either its memorandum opinion
entered on December 17, 2018, or in its subsequent order entered on
March 18, 2019. Hence, the proper remedy under these circumstances is to
remand for a hearing at which the parties can present evidence relating to
Appellant’s SORNA arguments.
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Judgment of sentence affirmed. Order entered March 18, 2019, denying
supplemental post-sentence motion vacated and case remanded for
proceedings consistent with Torsilieri. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/21
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