Com. v. Rura, J. ( 2014 )

J-S53042-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN EDWARD RURA, III,
Appellant No. 711 WDA 2014
Appeal from the Judgment of Sentence March 21, 2014
in the Court of Common Pleas of Fayette County
Criminal Division at No.: CP-26-CR-0001662-2012
BEFORE: DONOHUE, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 17, 2014
Appellant, John Edward Rura, III, appeals from the judgment of
sentence entered on March 21, 2014, following Appellant’s October 10, 2013
open guilty plea to one count of unlawful contact with a minor1 and one
count of indecent assault.2 On appeal, Appellant challenges the
constitutionality of Pennsylvania’s Sex Offender Registration and Notification
Act [SORNA]. See 42 Pa.C.S.A. §§ 9799.14, 9799.15. For the reasons
discussed below, we affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 6318(a)(1).
2
18 Pa.C.S.A. § 3126(a)(8).
J-S53042-14
As noted above, on October 10, 2013, Appellant entered an open
guilty plea to the aforementioned charges. The charges arose from an
incident that took place on August 12, 2012, when the then nineteen-year-
old Appellant had sexual contact with a fourteen-year-old girl. (See N.T.
Guilty Plea Hearing, 10/10/13, at 8-10).
On March 21, 2014, the sentencing court sentenced Appellant to a
term of two years of probation. (See N.T. Sentencing, 3/21/14, at 3). The
sentencing court found that Appellant was not a sexually violent predator
[SVP]. (See id. at 2-3). However, the sentencing court found that
Appellant was subject to lifetime registration under Section 9799.23 of
SORNA. (See id. at 4).
On March 27, 2014, Appellant filed a timely motion for reconsideration
of sentence, which the sentencing court denied on May 8, 2014. On May 2,
2014, Appellant filed a timely notice of appeal and a concise statement of
errors complained of on appeal. See Pa.R.A.P. 1925(b). On June 18, 2014,
the trial court issued an opinion. See Pa.R.A.P. 1925(a).
On appeal, Appellant raises the following questions for our review:
Issue No. 1: Is it unconstitutional to require [an] Appellant
to register for a lifetime for a crime that carries
a maximum penalty in the instant case of five
years?
Issue No. 2: Is the Adam Walsh Statute unconstitutional in
requiring the an [sic] Appellant to register for a
lifetime for said crime?
(Appellant’s Brief, at 7).
-2-
J-S53042-14
Appellant’s two issues are interrelated; therefore, we will address
them together. Appellant argues that SORNA’s registration requirements are
“manifestly excessive” and “an unusual punishment” in violation of both the
Pennsylvania and United States Constitutions. (Id. at 9). We note that
Appellant’s argument that SORNA is unconstitutional consists of less than
four full pages, does not reference the constitutional provisions upon which
he bases his argument, and does not contain any citation to the applicable
statutory section of SORNA. (See id. at 10-13). It is Appellant’s
responsibility to develop arguments in his brief; 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). Thus,
we find that, based upon his failure to develop his constitutional argument
sufficiently, Appellant has waived his claim on appeal.
Moreover, even if Appellant had not waived his claim, it is devoid of
merit. Appellant’s issue presents a question of law, thus our standard of
review is de novo and our scope of review is plenary. See Commonwealth
v. Perez, --- A.3d ---, 2014 WL 3339161, at *1 (Pa. Super. Filed July 9,
2014). Further, “[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) (citations omitted).
-3-
J-S53042-14
Although Appellant’s constitutional claim is underdeveloped, he
appears to contend that the lifetime registration requirements of SORNA are
punitive and constitute “unusual punishment” presumably in violation of the
Eighth Amendment to the United States Constitution, and Article 1, Section
13 of the Pennsylvania Constitution. (Appellant’s Brief, at 12). We note that
Section 13 of the Pennsylvania Constitution does not provide any greater
protection against cruel and unusual punishment than does the Eighth
Amendment to the United States Constitution. See Commonwealth v.
Baker, 24 A.3d 1006, 1026, n.20 (Pa. Super. 2011), affirmed, 78 A.3d 1044
(Pa. 2013).
In Perez, supra, a panel of this Court addressed the issue of whether
SORNA was “punitive” and therefore violated the ex post facto clauses of the
federal and state constitutions. Perez, supra at *1. We held that SORNA
was not sufficiently punitive to overcome the General Assembly’s
classification of it as a civil regulatory scheme that “shall not be construed as
punitive.” Id. at *10; see also 42 Pa.C.S.A. § 9799.11(b)(2).
Further, in an even more recent decision, a different panel of this
Court addressed the identical issues raised by Appellant. See
Commonwealth v. McDonough, --- A.3d ---, 2014 WL 3563346, at *3
(Pa. Super. Filed July 21, 2014). We note that the appellant in
McDonough, like Appellant here, was not classified as an SVP. See id. In
upholding the registration provisions of SORNA, we stated:
-4-
J-S53042-14
However, even assuming that [McDonough’s] 15–year
registration requirement is excessive in comparison to his actual
sentence of one to two years’ imprisonment, we cannot ignore
our Supreme Court’s pronouncement that:
Because 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. Furthermore, the fact that
an offender may be held until such information is
furnished is no different from confining someone in a
civil contempt proceeding. While any imprisonment,
of course, has punitive and deterrent effects, it must
be viewed as remedial if release is conditioned upon
one’s willingness to comply with a particular
mandate.
Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616, 622
(Pa. 1999) (emphasis added) (citations omitted). Similarly, in
[Commonwealth v.] Benner, [853 A.2d 1068 (Pa. Super.
2004)] this Court also recognized that:
The registration provisions of Megan’s Law do
not constitute criminal punishment. The registration
requirement is properly characterized as a collateral
consequence of the defendant’s plea, as it cannot be
considered to have a definite, immediate and largely
automatic effect on a defendant’s punishment.
* * *
Because the registration requirements under
Megan’s Law impose only collateral consequences of
the actual sentence, their application is not limited
by the factors that control the imposition of
sentence. Thus, while a defendant may be subject
to conviction only under statutes in effect on the
date of his acts, and sentence configuration under
the guidelines in effect on that same date, the
application of the registration requirements under
Megan’s Law is not so limited. This is so due to the
collateral nature of the registration requirement.
-5-
J-S53042-14
Benner, 853 A.2d at 1070–71.
While 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-punitive goal of public
safety. Gaffney, 733 A.2d at 619; see 42 Pa.C.S. § 9791(a)
(legislative findings and declaration of policy behind registration
of sexual offenders). In fact, one of the main purposes behind
SORNA is to fortify the registration provisions applicable to such
offenders. See 42 Pa .C.S. § 9799.10 (purpose of registration of
sexual offenders under SORNA); see also H.R. 75, 195th Gen.
Assemb. Reg. Sess. (Pa. 2012). With this purpose in mind, we
cannot find that the law is unconstitutional as it applies to [the
appellant]. He has offered neither competent nor credible
evidence to undermine the legislative findings behind SORNA’s
registration provisions. Accordingly, we find no error. Benner,
supra.
McDonough, supra at **3-4 (emphasis in original). These well-reasoned
decisions are binding on this Court. See Commonwealth v. Pepe, 897
A.2d 463, 465 (Pa. Super. 2006), appeal denied 946 A.2d 686 (Pa. 2008),
cert. denied, 555 U.S. 881 (2008) (“It is beyond the power of a Superior
Court panel to overrule a prior decision of the Superior Court, except in
circumstances where intervening authority by our Supreme Court calls into
question a previous decision of this Court.”) (citations omitted). Thus,
Appellant’s claim that the registration requirements of SORNA are
unconstitutional must fail.
Judgment of sentence affirmed.
Olson, J., joins the Memorandum.
Donohue, J., concurs in the result.
-6-
J-S53042-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2014
-7-