Com. v. Carey, R. ( 2021 )

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2021 PA Super 74COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT TIRRELLE DEVANTE CAREY :
:
Appellant : No. 206 MDA 2020
Appeal from the Judgment of Sentence Entered January 13, 2020
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0000691-2019
BEFORE: LAZARUS, J., McCAFFERY, J., and STEVENS, P.J.E.*
OPINION BY McCAFFERY, J.: FILED APRIL 19, 2021
Robert Tirrelle Devante Carey (Appellant) appeals from the judgment of
sentence entered in the Cumberland County Court of Common Pleas following
his jury conviction of two counts of possession with intent to deliver controlled
substances (PWID)1 (cocaine and oxycodone) and related offenses. Appellant
argues the trial court erred when it denied his motion to suppress based on
an invalid warrant and the unlawful execution of that warrant. He also insists
the court’s imposition of a 12-month period of re-entry supervision pursuant
to 61 Pa.C.S. § 6137.2 is an unconstitutional ex post facto punishment.
Because we agree the application of Section 6137.2 is unconstitutional as
applied to Appellant, where he committed the underlying offenses before the
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* Former Justice specially assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30).
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effective date of the statute, we vacate that part of his sentence. In all other
respects, we affirm.
We glean the following facts from the affidavits of probable cause
supporting two search warrants executed in this case, as well as the testimony
presented at the suppression hearing.2 On October 26, 2018, a Carlisle Police
officer attempted to initiate a traffic stop of a black Chevrolet Impala operated
by Appellant. Search Warrant & Authorization, 2/13/19, Affidavit of Probable
Cause at ¶ 2 (Body Warrant). Appellant did not stop, but rather fled the scene
in his car at a high rate of speed. Id. He then pulled into a parking lot and
fled from the vehicle on foot. Id. During his escape, Appellant “kicked in a
rear door at 136 W Louther St gaining entry into a residence which he did not
have permission to be in.” Id. He successfully evaded capture, and a warrant
was issued for his arrest. Id. Appellant was also wanted for a parole violation
“with the original charges being related to [felony] firearms possession[.]” Id.
Appellant’s “lengthy criminal history” includes charges of robbery, carrying a
firearm without a license, and delivery of narcotics. Id.
On February 12, 2019, the Carlisle Police Department received a tip
through “Crimewatch” that Appellant was “staying at 1820 Heishman Gardens
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2 As the trial court notes in its opinion, because “the facts from trial are not at
issue[,]” the trial transcript was not requested by Appellant. Trial Ct. Op.,
7/21/20, at 3.
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in North Middleton Township” with Lanajah Hodge,3 and that he was driving a
“white Nissan SUV.” Body Warrant at ¶ 3. That same day, the Carlisle Police
Department conducted surveillance of the Heishman Gardens residence at
approximately 7:30 p.m. Id. Officers “observed a dark colored Honda Civic
registered to Lanaja[h] Hodge parked in the driveway of 1820 Heishman
Gardens.” Id. Ms. Hodge’s driver’s license lists the Heishman Gardens
residence as her address. Id. Carlisle Police Sergeant Joshua Bucher4
returned the next day at about 2:30 p.m., at which time he “observed a white
. . . Nissan Rogue sitting in the driveway at 1820 Heishman Gardens.” Id.
Sergeant Bucher then applied for a warrant to search 1820 Heishman Gardens
for Appellant. The warrant was approved at 3:00 p.m. on February 13th.
At approximately 6:20 a.m. the next morning, February 14, 2019, the
Cumberland County Special Response Team executed the warrant at 1820
Heishman Gardens. Search Warrant & Authorization, 2/14/19, Affidavit of
Probable Cause at ¶ 4 (Search Warrant); N.T., Suppression H’rg, at 13.
Hampden Township Police Officer Jason Wayne Julseth was the team leader
for the Special Response Team. See N.T., Suppression H’rg, at 12, 14. Officer
Julseth testified that the team was “briefed that it was going to be a high risk
search warrant involving possible drugs and a gun.” Id. at 13. He explained
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3 Although the Affidavit of Probable Cause spells Hodge’s first name “Lanaja,”
Ms. Hodge testified at the suppression hearing that her first name is spelled
“Lanajah.” See N.T. Suppression H’rg, 8/30/19, at 25.
4Sergeant Bucher is also a detective with the Cumberland County Drug Task
Force. N.T., Suppression H’rg, at 5.
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that he had members of the team stationed at the front and back of the
residence, as well a “full coverage around the sides.” Id. at 15. Officer Julseth
testified the team could not see inside the residence because the windows
“were draped.” Id. Therefore, they did a “knock-and-announce” where they
banged on the door, “waited about 10 seconds, and then . . . manually
breached the door open[.]” Id. Officer Julseth stated the team did not “make
entry” at that time, but rather “h[e]ld the threshold.” Id. He explained that
about ten seconds later, Appellant “appeared out of the back” and the officers
“called him out.” Id. at 16. Officer Julseth stated Appellant was not
handcuffed until he was “outside the threshold of his residence.” Id. at 17.
The team then “called out” Hodge as well before entering the residence to
check for “other persons.” Id. at 20.
Sergeant Bucher testified that, once inside the residence, he “smelled a
strong odor of burnt marijuana” and noticed several “partially smoked
marijuana ‘blunts’” in an ash tray in plain view. Search Warrant at ¶ 4. Based
on his observations, he obtained a second warrant for 1820 Heishman Gardens
to search for additional marijuana. Id. at ¶¶ 6-7. The second warrant was
executed at approximately 8:40 a.m. Id. at ¶ 7. During the execution of that
warrant, officers observed “individually packaged baggies of suspected crack
cocaine, oxycodone and [P]ercocet pills,” as well as additional drug packaging
materials, and a loaded firearm. Id. Sergeant Bucher applied for, and was
granted, a third search warrant to seize the additional drugs and firearm. Id.
at ¶ 9.
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Ms. Hodge’s suppression hearing testimony concerning the officers’
execution of the body warrant differed from that of Officer Julseth. She
claimed that she and Appellant were sleeping when she heard “someone
outside say whoever is in the residence of 1820 Heishman Gardens . . . come
outside.” N.T., Suppression H’rg, at 26. She did not hear anyone knock on
the door. Id. at 27. Ms. Hodge testified that “two seconds later,” she and
Appellant came out of the bedroom and “there were already people inside”
the house. Id. at 26-27. She stated that the officers “had guns everywhere”
and immediately arrested Appellant and put her in handcuffs. Id. at 27.
Appellant was subsequently arrested and charged with two counts each
of PWID (cocaine and oxycodone) and possession of controlled substances
(cocaine and oxycodone), and one count each of persons not to possess
firearms, receiving stolen property, possession of a small amount of
marijuana, and possession of drug paraphernalia.5 Appellant filed a pre-trial
omnibus motion seeking suppression of the drugs and weapon recovered
during the search, as well as dismissal of the firearms charge. The Honorable
Albert H. Masland conducted a suppression hearing on August 30, 2019. After
permitting the parties to file briefs, Judge Masland denied the pre-trial motion
on November 5, 2019.
The case proceeded to a jury trial before the Honorable Thomas A.
Placey. On December 11, 2019, the jury returned a verdict of guilty on all the
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5 See 18 Pa.C.S. 3925(a), 6105; 35 P.S. § 780-113(a)(16), (31), (32).
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drug charges, and not guilty on the firearms and receiving stolen property
offenses. On January 13, 2020, the trial court sentenced Appellant to an
aggregate term of 45 to 90 months’ imprisonment. Because Appellant had a
state parole violation, with a maximum date of January 17, 2021, the court
noted that Appellant’s “aggregate sentence” was more than four years. See
N.T., 1/13/20, at 7-8. Thus, the trial court determined it was required to
impose an additional 12-month period of reentry supervision pursuant to 61
Pa.C.S. § 6137.2. Id. at 8-9, 12. This timely appeal follows.6
Appellant asserts three issues on appeal:
I. Did the court err when it denied Appellant’s motion to
suppress when it found that there was a valid search
warrant to search a home where [Appellant] was found as a
guest?
II. Did the court err in denying Appellant’s motion to suppress
when it found that the execution of the warrant was
procedurally lawful?
III. Is 61 Pa.C.S. § 6137.2 an unlawful statute that imposed an
illegal twelve month period of re-entry supervision upon
Appellant?
Appellant’s Brief at 6 (some capitalization omitted).
Appellant’s first two issues challenge the trial court’s denial of his
suppression motion. Our standard of review is well-established:
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
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6Appellant complied with the trial court’s directive to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. The
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to our plenary review.
Moreover, appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining a
ruling on a pre-trial motion to suppress.
Commonwealth v. Harlan, 208 A.3d 497, 499 (Pa. Super. 2019) (citation
omitted).
Appellant first contends the body warrant was issued without adequate
probable cause. He insists the affiant failed to sufficiently corroborate the
anonymous tip received through Crimewatch. See Appellant’s Brief at 12-13.
Appellant maintains:
Nothing in the warrant application linked [Appellant] to Ms.
Hodge. The warrant application did not note whether the plates
on the Nissan Rogue were linked to [Appellant]. No officer ever
saw [Appellant] enter or leave the residence. The residence was
not a known address of [Appellant].
Id. at 13. Thus, he argues the information contained in the probable cause
affidavit of the body warrant did “not give rise to the level of probable cause
that is required in order to execute the search warrant.” Id.
When considering the adequacy of a search warrant, we must bear in
mind the following:
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Before an issuing authority may issue a constitutionally valid
search warrant, he or she must be furnished with information
sufficient to persuade a reasonable person that probable cause
exists to conduct a search. The standard for evaluating a search
warrant is a “totality of the circumstances” test as set forth in
Illinois v. Gates, 462 U.S. 213[ ] (1983), and adopted in
Commonwealth v. Gray, [ ] 503 A.2d 921 ([Pa.] 1985). A
magistrate is to make a “practical, common sense decision
whether, given all the circumstances set forth in the affidavit
before him, including the ‘veracity’ and ‘basis of knowledge’ of
persons supplying hearsay information, there is a fair probability
that contraband or evidence of a crime will be found in a particular
place.” The information offered to establish probable cause must
be viewed in a common sense, nontechnical manner.
Commonwealth v. Manuel, 194 A.3d 1076, 1081 (Pa. Super. 2018) (some
citations and footnote omitted). When determining whether a warrant is
supported by probable cause, the magistrate “may not consider any evidence
outside of the affidavit.” Commonwealth v. Housman, 986 A.2d 822, 843
(Pa. 2009), citing Pa.R.Crim.P. 203(B). Moreover:
The Supreme Court of the United States has instructed “that after-
the-fact scrutiny by courts of the sufficiency of an affidavit should
not take the form of de novo review.” Indeed, a magistrate’s
probable cause determination should receive deference from the
reviewing courts. In keeping with the Fourth Amendment’s strong
preference for warrants, “courts should not invalidate ... warrants
by interpreting affidavits in a hyper[-]technical, rather than a
commonsense, manner.”
Commonwealth v. Leed, 186 A.3d 405, 413 (Pa. 2018), citing Gates, 462
U.S. at 236. “[I]nformation received from an informant whose reliability is
not established may be sufficient to create probable cause where there is some
independent corroboration by police of the informant’s information.” Manuel,
194 A.3d at 1083 (citations omitted).
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In concluding the body warrant issued herein was supported by probable
cause, the trial court opined:
Affiant learned by tip that [Appellant] was seen in a white Nissan
SUV and . . . was identified as the operator. [Appellant] was
reportedly staying with a Lanaja[h] Hodge at a specific address,
which the issuing authority would know as being just outside the
Borough of Carlisle. The same day the tip was received, affiant
obtained a follow-[up] police statement confirming the tip
identified person — Lanaja[h] Hodge; her address was confirmed,
and another officer identified a vehicle registered to [her] that was
seen at the given address. Less than twenty-four (24) hours later,
the affiant went to the now verified address and observed a white
Nissan Rogue parked in the driveway of the residence. Affiant
obtained a search warrant within a half hour based on cumulative
collected information. The sum of this information adds up to a
fair probability that [Appellant] would be found in that particular
place and residence. [T]his probability was not to a mathematic
certainly nor was it the most fastidious police work ever done, but
the totality of the information gave enough verified detail to
believe in the likelihood that [Appellant] would be found at that
residence.
If one where to perceive this information from a trained law
enforcement perspective, it is known that [Appellant] has a drug
delivery history, and the officer is told via tip that [Appellant] is
lodging with a specific person at a specific address. The police
check out that given address and find a car that is registered to
the specific person named in the tip and at the specific address;
therefore, these parts of the tip are confirmed. Further, the tip
also identifies the vehicle [Appellant] was last seen driving, a
white Nissan SUV, and when the police go back to the verified
specific address they observe a white Nissan Rogue, a small white
SUV. The totality of these circumstances, observations, and
verified information leads the affiant to the common sense
conclusion that there is probable cause to believe that [Appellant]
is NOW most likely at the verified address based on all the multiple
confirmations of people, place, and vehicles. This non-hyper-
technical interpretation of the affidavit’s conclusion is reasonably
calculated and sound.
Trial Ct. Op., 7/21/20, at 12-14.
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Upon our review of the record, and in particular, the body warrant’s
affidavit of probable cause, we agree with the trial court’s conclusion that the
information contained in the warrant was sufficient to provide probable cause
that Appellant would be located at 1820 Heishman Gardens. Indeed, the
probable cause affidavit states Appellant was wanted not only for fleeing police
in October of 2018, but also for a state parole violation related to a felony
possession of a firearm. See Body Warrant at ¶ 2. The affidavit also
summarized Appellant’s “lengthy criminal history[,]” which included firearms
and drug offenses. Id. Although Appellant’s purported location was based on
an anonymous tip, that same day, the officers corroborated some of the
information by confirming that Lanajah Hodge did indeed live at the address
provided by the tipster, and that a car registered to Hodge was parked in the
driveway. See id. at ¶ 3. Less than 24 hours later, the affiant observed a
white Nissan SUV — the same color and type of vehicle the tipster stated
Appellant was driving — parked in the driveway of 1820 Heishman Gardens.
This information was sufficient for the magistrate to make a common-sense
determination that Appellant would be found at that address. See Leed, 186
A.3d at 413. Thus, no relief is warranted.
Next, Appellant insists the trial court erred when it determined the
execution of the warrant was “procedurally lawful.” Appellant’s Brief at 15.
Rather, Appellant argues the officers violated the knock-and-announce rule by
entering the residence without providing a sufficient amount of time for
Appellant to surrender. See id. at 17. He maintains the mere 10 seconds the
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officers waited before breaching the entryway was not sufficient time for
Appellant and Ms. Hodge to “navigate [the] house at the break of dawn to
answer the door[.]” Id. at 18. Moreover, Appellant emphasizes that the
Commonwealth, which bore the burden of proof, “did not provide testimony
as to the substance of the announcement made to persons in the residence.”
Id. at 18.
The knock-and-announce rule “requires that police officers announce
their identity, purpose and authority and then wait a reasonable amount of
time for the occupants to respond prior to entering any private premises” to
execute a search warrant. Commonwealth v. Frederick, 124 A.3d 748, 754
(Pa. Super. 2015) (citation and footnote omitted). Pennsylvania Rule of
Criminal Procedure 207 provides:
Rule 207. Manner of Entry Into Premises
(A) A law enforcement officer executing a search warrant
shall, before entry, give, or make reasonable effort to give, notice
of the officer’s identity, authority, and purpose to any occupant of
the premises specified in the warrant, unless exigent
circumstances require the officer’s immediate forcible entry.
(B) Such officer shall await a response for a reasonable
period of time after this announcement of identity, authority, and
purpose, unless exigent circumstances require the officer’s
immediate forcible entry.
(C) If the officer is not admitted after such reasonable
period, the officer may forcibly enter the premises and may use
as much physical force to effect entry therein as is necessary to
execute the search.
Pa.R.Crim.P. 207(A)-(C).
When considering whether police officers violated Rule 207,
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the critical inquiry remains whether sufficient time elapsed in
which the police could form “a reasonable belief that the occupants
of the premises did not intend to voluntarily or peaceably
surrender the premises.” In reviewing this question of whether
the police waited a reasonable period of time before forcibly
entering the premises, we utilize an objective standard as to the
reasonable belief of the police. Accordingly, in evaluating an
officer’s compliance with a knock-and-announce rule we look only
to the facts and circumstances with which the officers are faced at
the time they make their decisions and act on them.
Commonwealth v. Walker, 874 A.2d 667, 673 (Pa. Super. 2005) (citations
omitted). In the absence of exigent circumstances, the Pennsylvania Supreme
Court has held that a “five to ten-second delay is not a reasonable time for an
occupant to respond to police officers’ knocking and announcing their
purpose.” Commonwealth v. Means, 614 A.2d 220, 223 (Pa. 1992); see
also Commonwealth v. DeMichel, 277 A.2d 159, 164 (Pa. 1971) (holding
the officers’ actions in breaking down the defendant’s front door “five to fifteen
seconds after announcing their presence and purpose” was unreasonable) (per
Roberts, J., with one Justice joining and one Justice concurring in the result).
In finding the officers did not violate the knock-and-announce rule, the
trial court opined:
Law enforcement herein complied with the spirit and intent of
[Rule 207], although [Appellant] takes issue with the ten seconds
before the door was breached. It is unknown what, if any, amount
of damage was done from the door breach, but damage is not the
primary focus of the Rule; safety of the police and occupants is
the most critical purpose. Safety was achieved though the
systematic process employed — that did not involve guns-a-
blazing entry — indeed, no entry was made into the residence until
after completion of “knock-and-announce,” followed by “breach,”
that was ultimately followed by the “call-out” procedure. The
warrant execution herein promoted peaceable entry by affording
fair warning and safeguarding legitimate privacy expectations to
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the degree possible. The efficacy of this “call-out” procedure was
ably demonstrated in this case, which does not give rise of
suppression of evidence.
Trial Ct. Op. 14-15 (citation omitted).
Upon our review of the record, we agree. Officer Julseth testified at the
suppression hearing that the windows to the residence were “draped” such
that the officers “couldn’t see inside anywhere.” N.T., Suppression H’rg, at
15. He explained they did a “knock-and announce” by banging on the door,
and waiting “about 10 seconds” before “manually breach[ing] the door open”
so that they had “a window . . . to look inside.” Id. See also id. at 23 (Officer
Julseth testifying under cross-examination, “We didn’t enter after ten seconds.
We knocked-and-announced, and then we broke the door open in ten seconds
about.”). Officer Julseth emphasized that the officers remained “outside the
threshold” of the residence, and “call[ed]-out” Appellant when he appeared.
Id. at 15-16. He explained they waited ten seconds “based on the fact that
[they] had no vantage point to look inside.” Id. at 21.
While the ten second delay was brief, we must evaluate the officers’
actions based upon the “facts and circumstances [they] faced at the time they
[made] their decisions.” See Walker, 874 A.2d at 673. Although the October
2018 incident involved Appellant fleeing and eluding police officers, the
probable cause affidavit for the body warrant also stated Appellant was
“wanted by the State Board of Probation and Parole for a parole violation with
the original charges being related to firearms possession (felony).” Body
Warrant at ¶ 2. Further, it indicated Appellant had a “lengthy criminal history
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[which] include[d] charges of robbery, resisting arrest, fleeing and eluding,
firearms not to be carried without a license and delivery of a controlled
substance.” Id. Officer Julseth testified that his team was “briefed that it was
going to be a high risk search warrant involving possible drugs and a gun.”
N.T., Suppression Hr’g at 13. Sergeant Bucher explained:
[T]he search warrant was not for drugs or guns. The reason the
special response team was used was based off the criminal history
of [Appellant]. There were firearm-related charges in the past, as
well as felony drug charges in the past. At any time that there
are firearms in a person’s criminal history, we typically use a
special response team just because there is [a] fair probability
that there may be a firearm again in this case.
Id. at 24. Thus, based on all the information available to the officers at the
time of the execution of the warrant, we agree with the conclusion of the
suppression court that the officers “waited a reasonable period before the door
was broken down.” Memorandum Op. & Order, 11/5/19, at 2; Trial Ct. Op. at
14-15.
To the extent Appellant criticizes the Commonwealth for failing “to
present any evidence as to what was announced when the police were
executing the [body] warrant[,]”7 we note the suppression court opined it was
“satisfied that [the officers’] presence was properly announced[.]”
Memorandum Op. & Order at 1-2. Although Officer Julseth could not recall
which officer announced their presence, he did testify that they “knocked-and-
announced” before breaching the residence. See N.T., Suppression H’rg, at
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7 See Appellant’s Brief at 18 (footnote omitted).
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15, 23. Appellant provides no authority mandating the officers recall the exact
words spoken when they announced their presence and purpose. See
Appellant’s Brief at 18. Accordingly, we detect no basis to reverse the trial
court’s determination that the officers complied with the knock-and-announce
rule before breaching the residence where Appellant was staying.8
In his final issue, Appellant insists the imposition of a 12-month period
of reentry supervision, pursuant to 61 Pa.C.S. § 6137.2, is an unconstitutional
ex post facto punishment as applied to him. We agree.
When considering a challenge to the constitutionality of a statute, we
are presented with “a pure question of law, for which our standard of review
is de novo and our scope of review is plenary.” Commonwealth v. Brown,
26 A.3d 485, 493 (Pa. Super. 2011) (citation omitted).
“As a threshold matter, a statute is presumed to be constitutional
and will only be invalidated as unconstitutional if it clearly,
palpably, and plainly violates constitutional rights.” Further, a
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8 In his brief, Appellant also challenges the officers’ protective sweep of the
residence, which led to the observation of marijuana blunts in plain view, and
the subsequent search warrants. See Appellant’s Brief at 19-22. However,
he failed to raise this issue in either his suppression motion or before the court
during the suppression hearing. See Appellant’s Pretrial Omnibus Motion,
7/15/19, at 2-3 (unpaginated); N.T., Suppression H’rg, at 33-37 (defense
counsel’s argument). Thus, it is waived for our review. See Commonwealth
v. Banks, 165 A.3d 976, 980-81 (Pa. Super. 2017) (holding trial court abused
discretion in suppressing evidence based on grounds not asserted in
defendant’s motion to suppress); Pa.R.Crim.P. 581(D) (suppression motion
“shall state specifically and with particularity the evidence sought to be
suppressed, the grounds for suppression, and the facts and events in support
thereof.”).
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defendant may contest the constitutionality of a statute on its face
or as-applied.
. . . An as-applied attack . . . does not contend that a law is
unconstitutional as written but that its application to a
particular person under particular circumstances deprived
that person of a constitutional right. . . .
Id. (citations omitted).
Article I, Section 17 of the Pennsylvania Constitution prohibits the
enactment of any ex post facto law. See Pa. Const. art. I, § 17. A criminal
law is deemed ex post facto if “two critical elements” are met: “it must be
retrospective, that is, it must apply to events occurring before its enactment,
and it must disadvantage the offender affected by it.” Commonwealth v.
Muniz, 164 A.3d 1189, 1195-96 (Pa. 2017) (citation omitted).9
The statute at issue, 61 Pa.C.S. § 6137.2, was enacted on December
18, 2019. It is included under the provisions concerning the parole power of
the Pennsylvania Parole Board. See 61 Pa.C.S. § 6137. The statute provides
as follows:
§ 6137.2. Reentry supervision
(a) General rule.—This section applies to persons
committed to the department with an aggregate minimum
sentence of total confinement under 42 Pa.C.S. § 9756(b)
(relating to sentence of total confinement) of 4 years or more.
Regardless of the sentence imposed, this section does not apply
to persons sentenced to death, life imprisonment, persons
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9 Although Muniz was a plurality decision, a majority of the justices agreed
the registration requirements of the then-applicable sexual offender
registration statute violated Pennsylvania’s ex post facto clause. See Muniz,
164 A.3d at 1224 (Wecht, J. Concurring Opinion, joined by Todd, J., agreeing
Pennsylvania’s sex offender registration statute “violates Article I, Section 17
of the Pennsylvania Constitution”).
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otherwise ineligible for parole or persons subject to 42 Pa.C.S. §
9718.5 (relating to mandatory period of probation for certain
sexual offenders).
(b) Reentry supervision.—Any person under subsection
(a) shall be sentenced to a period of reentry supervision of
12 months consecutive to and in addition to any other
lawful sentence issued by the court.
(c) Parole granted.—Persons who have been granted any
period of parole by the parole board during the same period of
incarceration shall be deemed to have served the requirements of
this section.
(d) Supervision.—A person released to reentry supervision
shall be considered to be released on parole.
(e) Imposition.—The court shall impose reentry
supervision in addition to the maximum sentence
permitted for the offense for which the defendant was
convicted.
(f) Applicability.—This section shall only apply to persons
sentenced after the effective date of this section.
61 Pa.C.S. § 6137.2 (emphases added).
The statute requires a trial court to impose a mandatory 12-month
period of reentry supervision “in addition to” any aggregate sentence of four
or more years’ imprisonment. See 61 Pa.C.S. § 6137.2(e). Furthermore, it
applies to any defendant “sentenced after the effective date.” 61 Pa.C.S. §
6137.2(f). As the trial court observed in its opinion, “[c]learly, this law
changes the punishment, and inflicts a greater punishment, than the law
annexed to the crime, when it was committed.” Trial Ct. Op. at 15 (footnote
omitted). Indeed, the Commonwealth concurs that “the application of an
additional punishment it the form of a required supervisory period . . . is an
ex post facto violation.” See Commonwealth’s Brief at 27.
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We agree. Here, Appellant was sentenced for acts he committed in
February of 2019. The court’s imposition of a 12-month period of reentry
supervision based upon Section 6137.2 constitutes an additional punishment
for acts he committed before the December 2019 enactment of the statute.
Thus, as applied to Appellant, the sentencing provision constitutes an
unconstitutional ex post facto punishment. Accordingly, we vacate the
provision of Appellant’s sentence imposing a 12-month period of reentry
supervision. In all other respects, we affirm.10
Judgment of sentence vacated in part and affirmed in part. Jurisdiction
relinquished.
Judge Lazarus joins the Opinion.
President Judge Emeritus Stevens Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/19/2021
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10Because our ruling does not disturb the trial court’s sentencing scheme, we
need not remand for resentencing. See Commonwealth v. Thur, 906 A.2d
552, 570 (Pa. Super. 2006).
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