Com. v. Balchick, T. ( 2015 )

J-S09045-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TIMOTHY F. BALCHICK,
Appellant No. 1720 WDA 2014
Appeals from the Judgment of Sentence entered October 8, 2014,
in the Court of Common Pleas of Fayette County,
Criminal Division, at No(s): CP-26-CR-0001120-2013
BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED FEBRUARY 11, 2015
Timothy F. Balchick (“Appellant”) appeals from the judgment of
sentence imposed after he pled guilty to statutory sexual assault, unlawful
contact with a minor, corruption of minors, indecent assault of a person less
than sixteen years of age, and disorderly conduct.1 We affirm.
On April 24, 2013, the victim, a fifteen year old female, reported to
the Washington Township Police Department in Fayette County that
Appellant had sexually assaulted her. Affidavit of Probable Cause, 6/5/13.
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1
18 Pa.C.S.A. §§ 3122.1(a)(1), 6318(a)(1), 6301(a)(1)(ii), 3126(a)(8), and
5503(a)(4).
J-S09045-15
Appellant was subsequently arrested and charged with the aforementioned
crimes.
At a hearing on October 1, 2014, Appellant entered his guilty plea, and
on October 8, 2014, the trial court sentenced Appellant to six (6) to twenty-
four (24) months of imprisonment plus a consecutive five (5) years of
probation. Appellant was notified of his duty to register as a sex offender for
the entirety of his lifetime in accordance with the Sex Offender Registration
and Notification Act (“SORNA”), 42 Pa.C.S.A. § 9799.10 et seq.2
Appellant presents two constitutional issues for our review:
I. IS IT UNCONSTITUTIONAL TO REQUIRE AN APPELLANT TO
REGISTER FOR A LIFETIME WHEN SAID REGISTRATION
REQUIREMENT EXCEEDS THE STATUTORY MAXIMUM
PENALTY FOR APPELLANT’S OFFENSE?
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2
“The Pennsylvania General Assembly passed SORNA as Act 111 of 2011,
signed December 20, 2011. In so doing, it provided for the expiration of
prior registration requirements, commonly referred to as Megan's Law, 42
Pa.C.S. §§ 9791–9799.9, as of December 20, 2012, and for the
effectiveness of SORNA on the same date. The General Assembly set forth
its purposes in adopting SORNA, which included bringing Pennsylvania into
substantial compliance with the Adam Walsh Act and providing a mechanism
for the general public and law enforcement to obtain information concerning
sexual offenders. Id. § 9799.10. SORNA also includes legislative findings
and a declaration of policy instructing that ‘[t]he Adam Walsh Child
Protection and Safety Act of 2006 provides a mechanism for the
Commonwealth to increase its regulation of sexual offenders in a manner
which is nonpunitive but offers an increased measure of protection to the
citizens of this Commonwealth.’ Id. § 9799.11(a)(2) …” In re J.B., ---
A.3d ---, 2014 WL 7369785, at 1 (Pa. 2014).
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II. IS THE ADAM WALSH STATUTE UNCONSTITUTIONAL IN
REQUIRING AN APPELLANT TO REGISTER FOR TWENTY
FIVE (25) YEARS? 3
Appellant’s Brief at 7. Appellant’s issues are interrelated. Therefore, we will
address them together.
Appellant argues that SORNA is unconstitutional because the lifetime
registration requirement exceeds the statutory maximum sentence for the
crimes to which he pleaded guilty, and because the lifetime registration
requirement constitutes cruel and unusual punishment. See Appellant’s
Brief at 11. Preliminarily, we note that the argument portion of Appellant’s
brief in which he asserts that SORNA is unconstitutional consists of less than
four full pages, and does not reference the constitutional provisions upon
which Appellant bases his argument. Nor does Appellant in his brief direct
this Court to the specific provisions of SORNA that he seeks to have declared
unconstitutional. It is Appellant’s responsibility to develop arguments in his
brief and where he has not done so we will find the claim waived. See
Commonwealth v. Gibbs, 981 A.2d 274, 284 (Pa. Super. 2009), appeal
denied, 3 A.3d 670 (Pa. 2010) (“It is Appellant's obligation to sufficiently
develop arguments in his brief by applying the relevant law to the facts of
the case, persuade this Court that there were errors below, and convince us
____________________________________________
3
The record indicates that Appellant is subject to lifetime registration and
not twenty-five (25) years as he suggests in his statement of questions.
See N.T., 10/8/14, 4-5.
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relief is due because of those errors [and if] an appellant does not do so, we
may find the argument waived.”). Thus, we find that based upon his failure
to sufficiently develop his constitutional argument, Appellant has waived his
constitutionality claims.
Moreover, even if Appellant had not waived his claims, they are devoid
of merit. With regard to Appellant’s claim that the lifetime registration
requirement constitutes excessive punishment and is unconstitutional
because it exceeds the statutory maximum sentence, our Courts have found
such claims unavailing. Our Supreme Court has repeatedly held, under the
now-expired provisions of Megan’s Law, that lifetime registration
requirements are not punitive but remedial in nature, and “[b]ecause we do
not view the registration requirements as punitive but, rather, remedial, we
do not perceive mandating compliance by offenders who have served their
maximum term to be improper.” Commonwealth v. Gaffney, 733 A.2d
616, 622 (Pa. 1999) and Commonwealth v. Williams, 832 A.2d 962 (Pa.
2003). See also Commonwealth v. Benner, 853 A.2d 1068 (Pa. Super.
2004).
In reliance on Gaffney, Williams and Benner, this Court in
Commonwealth v. McDonough, 96 A.3d 1067, 1070-1710 (Pa. Super.
2014) recently explained, “[w]hile Gaffney and Benner were decided prior
to the effective date of SORNA, the same principles behind the registration
requirements for sexual offenders under Megan's Law apply to those subject
to SORNA. Namely, to effectuate, through remedial legislation, the non-
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punitive goal of public safety.” Accordingly, because SORNA is a non-
punitive remedial scheme, and not a punishment, we concluded in
McDonough that the appellant’s claims – that his registration requirements
constituted excessive punishment, and that SORNA was unconstitutional for
requiring an individual to register for many years longer than the maximum
penalty – failed. Id.In the present case, Appellant advances arguments identical to those
raised in McDonough, in which we declined to find SORNA unconstitutional.
Although McDonough pertained to a fifteen (15) year registration
requirement, the rationale is equally applicable to the lifetime registration
requirement at issue in the present case. Consonant with McDonough,
Appellant’s constitutional claims fail.
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/2015
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