Com. v. Hubert, J. ( 2022 )

J-S31024-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMES HUBERT :
:
Appellant : No. 178 EDA 2021
Appeal from the PCRA Order Entered December 1, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014205-2012
BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED MARCH 4, 2022
Appellant, James Hubert, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which denied his “Post Conviction
Relief Act Petition To Bar The Applicability Of Sex Offender Registration And/Or
Petition For Writ Of Habeas Corpus.” We affirm.
The relevant facts and procedural history of this case are as follows. On
February 12, 2013, Appellant entered a negotiated guilty plea to rape by
forcible compulsion and endangering the welfare of a child (“EWOC”), in
connection with his sexual attack on a four-year-old victim on April 12, 2012.
The court sentenced Appellant on June 4, 2013, in accordance with the plea
deal, and imposed a term of 8 to 16 years’ imprisonment plus four years’
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S31024-21
probation for the rape conviction. The court imposed no further penalty for
the EWOC conviction. The court did not designate Appellant as a sexually
violent predator (“SVP”). Appellant did not seek direct review from his
judgment of sentence.
During 2015-2016, Appellant unsuccessfully litigated a first petition
pursuant to the Post Conviction Relief Act (“PCRA”).1 On September 20, 2017,
Appellant filed the current pro se prayer for relief. The court appointed
counsel, who filed an amended petition on Appellant’s behalf on July 9, 2018.
In it, Appellant challenged the constitutionality of his registration and
reporting requirements under the Sex Offender Registration and Notification
Act (“SORNA”). On December 1, 2020, the court denied relief. Appellant
timely appealed.2 On January 7, 2021, the court ordered Appellant to file a
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
2 Appellant submitted a pro se notice of appeal dated December 21, 2020, and
postmarked December 28, 2020. Pursuant to the prisoner mailbox rule,
Appellant’s filing was timely. See Commonwealth v. DiClaudio, 210 A.3d
1070 (Pa.Super. 2019) (explaining that prisoner mailbox rule provides that
pro se prisoner’s document is deemed filed on date he delivers it to prison
authorities for mailing). Although Appellant was still represented when he
filed the pro se notice of appeal, the rule against hybrid representation does
not render Appellant’s pro se timely notice of appeal a legal nullity. See
Commonwealth v. Williams, 151 A.3d 621 (Pa.Super. 2016) (explaining
that because notice of appeal protects constitutional right, it is distinguishable
from other filings that require counsel to provide legal knowledge and strategy
in creating motion, petition, or brief; holding that this Court is required to
docket pro se notice of appeal despite appellant being represented by
counsel). Following the filing of Appellant’s pro se notice of appeal, counsel
filed a petition to withdraw, which the court granted on February 8, 2021. The
(Footnote Continued Next Page)
-2-
J-S31024-21
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Following the grant of an extension of time, Appellant complied.
Appellant raises one issue for our review:
Did the PCRA court err in dismissing Appellant’s PCRA
petition without a hearing because Appellant’s PCRA petition
was timely filed and because Appellant’s lifetime reporting
mandate is illegal and violative of state and federal ex post
facto Constitutional provisions because lifetime reporting is
punitive and violative of even the revised SORNA statute
because Appellant has not been convicted of two or more
ten-year reporting crimes and because there was no SVP
determination at sentencing and life reporting violates the
terms of Appellant’s negotiated plea?
(Appellant’s Brief at 4).
Appellant argues that he was not subject to lifetime reporting
requirements at the time he entered his guilty plea. Consequently, Appellant
asserts that requiring him to register for life as a sex offender violates ex post
facto principles. Appellant claims that requiring him to register for life also
violates due process concerns because it creates an irrebuttable presumption
of dangerousness. Appellant further insists that application of the lifetime
reporting requirements renders his plea non-voluntary. Appellant concludes
his registration and reporting requirements are unconstitutional, and this
Court must remand for resentencing or vacate the lifetime reporting provision.
We disagree.
____________________________________________
court appointed new counsel to represent Appellant for this appeal on
February 22, 2021.
-3-
J-S31024-21
Our review of this case implicates the following legal principles:
When an appellant challenges the constitutionality of a
statute, the appellant presents this Court with a question of
law. Our consideration of questions of law is plenary. A
statute is presumed to be constitutional and will not be
declared unconstitutional unless it clearly, palpably, and
plainly violates the constitution. Thus, the party challenging
the constitutionality of a statute has a heavy burden of
persuasion.
Commonwealth v. Howe, 842 A.2d 436, 441 (Pa.Super. 2004) (internal
citations omitted).
In Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017)
(plurality), cert. denied, ___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018),
our Supreme Court held that the registration provisions of SORNA I were
punitive, such that application of those provisions to offenders who committed
their crimes prior to SORNA I’s effective date violated ex post facto principles.
Following Muniz and Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super.
2017) (“Butler I”), rev’d, ___ Pa. ___, 226 A.3d 972 (2020) (“Butler II”),3
____________________________________________
3 In Butler I, this Court held that the provision of SORNA I requiring a court
to designate a defendant a SVP by clear and convincing evidence violates the
federal and state constitutions because it increases a defendant’s criminal
penalty without the fact-finder making necessary factual findings beyond a
reasonable doubt. See Butler I, supra. However, the Pennsylvania Supreme
Court reversed Butler I. See Butler II, supra (holding SVPs are different
from non-SVP SORNA registrants at issue in Muniz due to heightened public
safety concerns based on determination that SVPs have mental abnormality
or personality disorder that makes individual likely to engage in predatory
sexually violent offenses; procedure for designating individuals as SVPs is not
subject to requirements of Apprendi and Alleyne and remains
constitutionally permissible). See also Apprendi v. New Jersey, 530 U.S.
(Footnote Continued Next Page)
-4-
J-S31024-21
the Pennsylvania General Assembly enacted legislation to amend SORNA I.
See Act of Feb. 21, 2018, P.L. 27, No. 10 (“Act 10”). Act 10 amended several
provisions of SORNA I and added several new sections found at 42 Pa.C.S.A.
§§ 9799.42, 9799.51-9799.75. In addition, the Governor of Pennsylvania
signed new legislation striking the Act 10 amendments and reenacting several
SORNA I provisions, effective June 12, 2018. See Act of June 12, 2018, P.L.
1952, No. 29 (“Act 29”). 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; or those who were
required to register under a former sexual offender registration law of this
Commonwealth on or after April 22, 1996, but before December 20, 2012,
whose period of registration has not expired. See 42 Pa.C.S.A. § 9799.52.
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.A. §§ 9799.10-9799.42.
____________________________________________
466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (holding that any facts, other
than fact of prior conviction, that subject defendant to additional penalty
beyond statutory maximum must be submitted to jury and proven beyond
reasonable doubt) and Alleyne v. United States, 570 U.S. 99, 133 S.Ct.
2151, 186 L.Ed.2d 314 (2013) (holding that any fact that increases mandatory
minimum sentence for crime is fact that must be submitted to jury and found
beyond reasonable doubt).
-5-
J-S31024-21
In Commonwealth v. Lacombe, ___ Pa. ___, 234 A.3d 602 (2020),
our Supreme Court held that Subchapter I of SORNA II is nonpunitive and
does not violate the constitutional prohibition against ex post facto laws. See
id. at ___, 234 A.3d at 626-27. See also Commonwealth v. Elliott, 249
A.3d 1190, 1194 (Pa.Super. 2021) (rejecting ex post facto challenge to
lifetime registration for rape conviction where appellant was subject to
Subchapter I reporting requirements).
Instantly, the court explained its rationale for denying Appellant relief
as follows:
Appellant’s appeal is meritless. Subchapter I of SORNA
(referred to as “SORNA II”) applies to individuals “who were
convicted of a sexually violent offense committed on or after
April 22, 1996, but before December 20, 2012, whose
period of registration with the Pennsylvania State Police, as
described in section 9799.55 (relating to registration), has
not expired.” See 42 Pa.C.S.A. § 9799.52(1). Persons
convicted of rape are subject to lifetime reporting under
Subchapter I. See 42 Pa.C.S.A. § 9799.55(b).
Appellant raped the 4-year-old victim on April 12, 2012, and
his registration period as described in section 9799.55 had
not expired when Subchapter I was enacted. He therefore
is subject to the lifetime registration/reporting requirements
under Subchapter I.
The Pennsylvania Supreme Court held that Subchapter I “is
narrowly tailored to its nonpunitive purpose of protecting
the public.” The registration/reporting requirements are not
punitive and ex post facto challenges thereto, as brought by
Appellant, “necessarily fail.” Lacombe[, supra at ___,]
234 A.3d [at] 626-627.1
1 The timeliness of Appellant’s Petition is also
controlled by Lacombe. Although captioned as a
PCRA, the relief Appellant sought was termination of
-6-
J-S31024-21
his registration requirements imposed under SORNA.
He filed his Petition just 2 months after the Supreme
Court’s decision in Muniz. Under these
circumstances, Appellant’s Petition, which
alternatively sought a “Writ of Habeas Corpus”
compelling termination of his registration
requirements, cannot be dismissed as untimely.
Lacombe[, supra at ___], 234 A.3d [at] 617-618
(“Our approach in this regard takes into account the
fact 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…
Accordingly, we decline to find the PCRA, or any other
procedural mechanism, is the exclusive method for
challenging sexual offender registration statutes and
we thus conclude the trial court had jurisdiction to
consider Lacombe’s “Petition to Terminate His Sexual
Offender Registration Requirements.”).
Lastly, Appellant’s amended Petition stated: “In the
alternative that the [c]ourt finds that Petitioner may be
required to register as a Tier III sex offender pursuant to
SORNA II, the [c]ourt should still order that Petitioner need
not register as a [SVP].” Appellant’s request was irrelevant.
Following Appellant’s guilty pleas on February 12, 2013, this
[c]ourt held a hearing on June 4, 2013, and found Appellant
was not [a] SVP. Accordingly, Appellant is not subject to
the registration requirements of [a] SVP, but he is subject
to the registration requirements of a Tier III sex offender
under Subchapter I.
(Trial Court Opinion, filed June 22, 2021, at 3-4) (emphasis in original). We
agree with the court’s analysis.
As Appellant committed his sex offenses on April 12, 2012, he is subject
to registration and reporting requirements under Subchapter I. See 42
Pa.C.S.A. § 9799.52. Subchapter I requires Appellant to report for life based
on his rape conviction. See 42 Pa.C.S.A. § 9799.55(b)(2)(i)(A). Under
-7-
J-S31024-21
Lacombe and its progeny, Appellant’s ex post facto challenge fails. See
Lacombe, supra; Elliott, supra.
Regarding Appellant’s claim of due process violations based on an
unconstitutional irrebuttable presumption, we initially note that this claim is
undeveloped on appeal. In his brief, Appellant merely states that in his
amended petition he raised due process claims, and then Appellant cites to
his amended petition at pages 3-5. (See Appellant’s Brief at 10-11).
Nevertheless, “‘incorporation by reference’ is an unacceptable manner of
appellate advocacy for the proper presentation of a claim for relief[.]”
Commonwealth v. Briggs, 608 Pa. 430, 515, 12 A.3d 291, 342 (2011), cert.
denied, 565 U.S. 889, 132 S.Ct. 267, 181 L.Ed.2d 157 (2011). Appellant
offers no additional discussion to support his due process argument in his
appellate brief. (See Appellant’s Brief at 10-11). Appellant’s failure to
properly develop his due process challenge on appeal renders this claim
waived. See Elliott, supra (holding appellant waived due process claim for
lack of development where he offered no meaningful discussion of how SORNA
II’s presumption that he poses high risk of recidivism violates his
constitutional right to reputation, such that we should afford him relief he
requests of vacating his lifetime registration requirement).4
____________________________________________
4 Moreover, this Court has recently rejected a similar argument. See
Commonwealth v. Spears, No. 2424 & 2439 EDA 2019 (Pa.Super. Apr. 14,
2021) (unpublished memorandum) (explaining that Subchapter I does not
(Footnote Continued Next Page)
-8-
J-S31024-21
Further, regarding Appellant’s claim that application of the reporting
requirements somehow renders his guilty plea non-voluntary, this claim is
similarly waived for lack of development on appeal. (See Appellant’s Brief at
11). See also Commonwealth v. Hardy, 918 A.2d 766 (Pa.Super. 2007),
appeal denied, 596 Pa. 703, 940 A.2d 362 (2008) (explaining it is appellant’s
duty to present arguments that are sufficiently developed for our review; brief
must support claims with pertinent discussion, with references to record and
with citations to legal authorities; this Court will not act as counsel and will
not develop arguments on behalf of appellant; when defects in brief impede
our ability to conduct meaningful review, we may dismiss appeal entirely or
deem certain issues waived).5 Based upon the foregoing, Appellant is not
____________________________________________
signal dangerousness of any particular offender; it merely provides that adult
sex offenders, as group, have high risk of recidivism; hearing on adult
offender’s individual dangerousness or likelihood to reoffend is irrelevant to
universal truth of group as whole; therefore, irrebuttable presumption
doctrine does not apply). See also Pa.R.A.P. 126(b) (explaining that this
Court can rely on unpublished decisions of Superior Court filed after May 1,
2019 for persuasive value).
5 Moreover, the record makes clear there was no agreement that Appellant
would be free from reporting requirements as part of his plea deal. To the
contrary, the record indicates that Appellant entered a negotiated guilty plea
to rape and EWOC, in exchange for the Commonwealth dropping additional
charges, and for a negotiated sentence of 8 to 16 years’ imprisonment, plus
four years’ probation. The court imposed the negotiated sentence. As well,
the written plea agreement expressly states that Appellant would be subject
to sex offender probation and a Megan’s Law assessment. In the absence of
a specific condition of his plea agreement providing for an exception to
registration requirements, Appellant did not have a right to evade registration
requirements under his plea deal. See Commonwealth v. Hainesworth,
(Footnote Continued Next Page)
-9-
J-S31024-21
entitled to relief. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/4/2022
____________________________________________
82 A.3d 444, 448 (Pa.Super. 2013), appeal denied, 626 Pa. 683, 95 A.3d 276(2014) (holding that dispositive question in plea enforcement cases
concerning sex offender registration requirements is whether non-registration
was term of defendant’s plea agreement). See also Commonwealth v.
Moose, 245 A.3d 1121, 1133 (Pa.Super. 2021) (en banc), appeal denied, No.
53 MAL 2021 (Pa. Dec. 7, 2021) (stating: “[W]hen a registration scheme is
not punitive, it constitutes a collateral consequence of a guilty plea. Further,
because non-punitive registration requirements are not criminal punishment,
they would not materially alter a negotiated term establishing a petitioner’s
criminal sentence”) (emphasis in original; internal citation omitted).
- 10 -