Com. v. Chittester, M. ( 2021 )

J-A06012-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL CHITTESTER :
:
Appellant : No. 256 WDA 2020
Appeal from the Judgment of Sentence Entered December 12, 2019
In the Court of Common Pleas of Elk County Criminal Division at No(s):
CP-24-CR-0000053-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL ALLEN CHITTESTER :
:
Appellant : No. 257 WDA 2020
Appeal from the Judgment of Sentence Entered December 12, 2019
In the Court of Common Pleas of Elk County Criminal Division at No(s):
CP-24-CR-0000449-2018
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: MAY 20, 2021
Appellant, Michael Allen Chittester, appeals from the aggregate
judgment of sentence of 37½ to 75 years’ incarceration, followed by 15 years’
probation, imposed after he was convicted of various sexual offenses in two
separate, but consolidated cases.1 Herein, Appellant solely challenges the
____________________________________________
1 This Court sua sponte consolidated Appellant’s appeals by per curiam order
filed July 17, 2020.
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constitutionality of Revised Subchapter H of the Sexual Offender Registration
and Notification Act (“SORNA II”).2 After careful review, we affirm.
We need not discuss the facts underlying Appellant’s convictions. We
only note that he was convicted of numerous sexual offenses — including rape
of a child less than 13 years of age, aggravated assault, and involuntary
deviate sexual intercourse — based on his “having oral and anal sex with his
stepdaughter … when she was between the ages of five and ten.” Appellant’s
____________________________________________
2 See 42 Pa.C.S. §§ 9799.10-9799.42. As this Court explained in
Commonwealth v. Reslink, --- A.3d ----, 2020 WL 7415959 (Pa. Super.
filed Dec. 18, 2020):
SORNA was originally enacted on December 20, 2011, effective
December 20, 2012. See Act of Dec. 20, 2011, P.L. 446, No. 111,
§ 12, effective in one year or Dec. 20, 2012 (Act 11 of 2011). Act
11 was amended on July 5, 2012, also effective December 20,
2012, see Act of July 5, 2012, P.L. 880, No. 91, effective Dec. 20,
2012 (Act 91 of 2012), and amended on February 21, 2018,
effective immediately, known as Act 10 of 2018, see Act of Feb.
21, 2018, P.L. 27, No. 10, §§ 1-20, effective Feb. 21, 2018 (Act
10 of 2018), and, lastly, reenacted and amended on June 12,
2018, P.L. 140, No. 29, §§ 1-23, effective June 12, 2018 (Act 29
of 2018). Acts 10 and 29 of 2018 are generally referred to
collectively as SORNA II. Through Act 10, as amended in Act 29
(collectively, SORNA II), the General Assembly split SORNA I’s
former Subchapter H into a Revised Subchapter H and Subchapter
I. Subchapter I addresses sexual offenders who committed an
offense on or after April 22, 1996, but before December 20,
2012. See 42 Pa.C.S.[] §§ 9799.51-9799.75. Subchapter I
contains less stringent reporting requirements than Revised
Subchapter H, which applies to offenders who committed an
offense on or after December 20, 2012. See 42 Pa.C.S.[] §§
9799.10-9799.42.
Id. at *1 n.8.
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Brief at 5. Appellant’s offenses occurred in both Elk and McKean Counties,
and took place between the dates of October 1, 2014, and October 6, 2018.
Id. at 5. On December 12, 2019, the court imposed the aggregate sentence
stated supra. Appellant was not deemed to be a sexually violent predator,
but he was notified that he is subject to lifetime registration as a Tier III sex
offender under Revised Subchapter H of SORNA II. See 42 Pa.C.S. §
9799.14(d)(16).
Appellant filed a timely post-sentence motion, which was denied on
January 28, 2020. He then filed a timely notice of appeal, after which his
counsel sought, and was granted, leave to withdraw. The court appointed
new counsel for Appellant, and after delays due to the COVID-19 pandemic,
counsel complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. The trial court filed a Rule
1925(a) opinion on August 20, 2020. Herein, Appellant raises five issues for
our review:
A. Whether [SORNA II] violates substantive due process under
Article 11 of the Pennsylvania Constitution because it deprives
individuals of the fundamental right to reputation and fails to
satisfy strict scrutiny?
B. Whether [SORNA II] violates due process under Articles 1 and
11 of 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 when this presumption is not universally true?
C. Whether lifetime registration under [SORNA II] denied
Appellant procedural due process under the Pennsylvania and
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Federal Constitutions because it unlawfully impinges the right to
reputation without notice and an opportunity to be heard?
D. Whether lifetime registration under [SORNA II] constitutes
criminal punishment and[,] therefore[,] violates the separation of
powers doctrine because it usurps exclusive judicial adjudicatory
and sentencing authority?
E. Whether lifetime registration under [SORNA II] is punishment
under the Mendoza-Martinez[3] test and it contravenes the 5th,
6th and 14th Amendments of the United States Constitution and
the corresponding protections of the Pennsylvania Constitution,
[see] Apprendi [v. New Jersey], [530 U.S. 466] (2000)[,] and
Alleyne [v. United States], 570 U.S. 99 (2013), when not every
fact necessary to support the imposition of a mandatory[-]
minimum sentence must be found by a jury beyond a reasonable
doubt?
Appellant’s Brief at 4.
Appellant’s issues all challenge the constitutionality of Revised
Subchapter H of SORNA II.
The constitutionality of a statute presents a “pure question of law,”
over which our standard of review is de novo[,] and our scope of
review is plenary. Commonwealth v. Brooker, 103 A.3d 325,
334 (Pa. Super. 2014). Our Supreme Court has also offered the
following discussion of the burden borne by those seeking to
invalidate a statutory scheme on constitutional grounds:
In addressing constitutional challenges to legislative
enactments, we are ever cognizant that “the General
Assembly may enact laws which impinge on constitutional
rights to protect the health, safety, and welfare of society,”
but also that “any restriction is subject to judicial review to
protect the constitutional rights of all citizens.” In re J.B.,
… 107 A.3d 1, 14 ([Pa.] 2014). We emphasize that “a party
challenging a statute must meet the high burden of
demonstrating that the statute clearly, palpably, and plainly
violates the Constitution.” Id.____________________________________________
3 Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).
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Commonwealth v. Snyder, --- A.3d ----, 2021 WL 1324388, at *7 (Pa.
Super. filed Apr. 9, 2021).
As Appellant recognizes, the claims he raises herein mirror those
addressed by our Supreme Court in Commonwealth v. Torsilieri, 232 A.3d
567 (Pa. 2020). See Appellant’s Brief at 16 (“[T]he issues raised by Torsilieri
are controlling to Appellant’s appeal.”); id. at 17 (“Appellant currently raises
the same issues as Torsilieri.”). There,
Torsilieri challenged his registration requirements under [Revised]
Subchapter H in post-sentence proceedings. The linchpin of his
arguments consisted of expert scientific evidence indicating that
“sexual offenders generally have low recidivism rates and
questioning the effectiveness of sexual offender registration
systems[.]” [Torsilieri, 232 A.3d] at 574. Based largely upon
this evidence, the trial court declared [Revised] Subchapter H
unconstitutional under a number of interrelated theories, including
that Subchapter H impaired Torsilieri’s “right to reputation” under
the Pennsylvania Constitution by utilizing an “irrebuttable
presumption” that all registrants pose a high risk of
recidivism. Id. at 574-75.
The Torsilieri trial court also concluded [Revised] Subchapter H
was “punitive” pursuant to the seven factors set forth in …
Mendoza-Martinez…. Id. at 588-94. This conclusion “inevitably
resulted” in a number of additional rulings:
[T]he trial court concluded that (1) [Revised] Subchapter H
violated the dictates of Alleyne … and Apprendi … because
it subjected offenders to increased registration provisions
without a jury determining that the offender posed a risk of
future dangerousness beyond a reasonable doubt; (2) the
registration periods constituted illegal sentences in excess
of the statutory maximum terms of incarceration; (3) the
provisions resulted in an excessive sentence in violation of
the federal and state constitutional provisions related to
cruel and unusual punishments; and (4) [Revised]
Subchapter H violated the separation of powers doctrine by
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encroaching upon the judiciary’s fact-finding and
individualized sentencing responsibilities.
Id. at 594.
On direct appeal, our Supreme Court determined that the trial
court had correctly considered Torsilieri’s scientific evidence. Id.
at 584. However, the High Court ultimately remanded the case
for further development of the record and arguments:
[A]s 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.
Id. at 596…. Thus, the holding in Torsilieri did not announce any
new substantive law, but merely set the stage for future
proceedings.
Snyder, 2021 WL 1324388, at *7-8 (some brackets and footnotes omitted).
In Snyder, the appellant presented the same claims as addressed in
Torsilieri. However, “[u]nlike Torsilieri, [Snyder] did not raise his claims of
constitutional dimension before the trial court. Rather, he first raised these
arguments in his Rule 1925(b) concise statement….” Id. at *8. Consequently,
the Snyder panel held that it was “constrained to follow Reslink” in deeming
Snyder’s claims waived. We explained:
In that case, Reslink asserted for the first time on appeal that
[Revised] Subchapter H creates “an irrefutable and irrebuttable
presumption against the offender,” which renders it
unconstitutional. Reslink, … 2020 WL 7415959[,] at *3. He
claimed that registration under [Revised] Subchapter H
constituted “cruel and unusual punishment” and also violated
Apprendi, [530 U.S.] at 490…. Id. It is beyond cavil that such
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claims implicate the legality of a defendant’s sentence. See
Commonwealth v. Newman, 99 A.3d 86, 91 (Pa. Super. 2014)
(“[B]ecause a challenge to a sentence premised upon Apprendi
implicates the legality of that sentence, it cannot be waived on
appeal.”); Commonwealth v. Yasipour, 957 A.2d 734, 740 (Pa.
Super. 2008) (“[A]n appellant who challenges the constitutionality
of his sentence of imprisonment on a claim that it violates his right
to be free from cruel and unusual punishment raises a legality of
sentencing claim since he is challenging the trial court’s authority
in imposing the sentence.”). However, this Court found these
legality-of-sentence issues waived due to Reslink’s failure to raise
them in the trial court. See Reslink, … 2020 WL 7415959[,] at
*4.
After Reslink, even assuming, arguendo, that some of [Snyder’s]
constitutional claims sound in legality of sentence, we are
compelled to find waiver of the balance of [Snyder’s]
constitutional arguments. [Snyder] did not raise these issues in
the trial court, and Reslink has created an exception to the typical
rules governing [Pa.R.A.P.] 302(a) waiver and claims aimed at
allegedly illegal sentences. Thus, no relief is due on these waived
issues.
Snyder, 2021 WL 1324388[,] at *9.
In the present case, Appellant did not assert his constitutional
challenges to Revised Subchapter H in his post-sentence motion. Instead, he
presented them for the first time in his Rule 1925(b) statement. It is clear
that under Reslink and Snyder, we must deem Appellant’s issues waived.
Judgment of sentence affirmed.
Judge Lazarus joins this memorandum.
Judge McCaffery joins and files a concurring statement in which
President Judge Emeritus Bender and Judge Lazarus join.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/2021
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