Com. v. Thorne, S. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAUNE JAREL THORNE, SR. :
:
Appellant : No. 774 WDA 2019
Appeal from the Judgment of Sentence Entered April 9, 2019
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002013-2018
BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.
JUDGMENT ORDER BY LAZARUS, J.: FILED: SEPTEMBER 7, 2022
Pursuant to the Pennsylvania Supreme Court’s decision in
Commonwealth v. Thorne, 276 A.3d 1192 (Pa. 2022),1 in which the Court
acknowledged that the question of whether the lifetime registration
requirements2 of Revised Subchapter H of Pennsylvania’s Sexual Offender
Registration and Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.42,
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1 The Supreme Court’s order granted allowance of appeal limited to the issue
of whether Thorne’s two constitutional challenges to Revised Subchapter H
implicated the legality of his sentence and, thus, cannot be waived. See
Order, 8/11/21. The Court’s decision does not affect this Court’s decision
affirming Thorne’s convictions.
2 Thorne’s convictions for indecent assault–course of conduct, 18 Pa.C.S.A. §
3126(a)(7), and aggravated indecent assault, 18 Pa.C.S.A. § 3125(b), are
designated as Tier III offenses under SORNA, subjecting him to lifetime
registration. See 42 Pa.C.S. §§ 9799.14(d)(7), (8). Thorne was not found
to be a sexually violent predator (SVP).
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constitute punishment remains unanswered, but held constitutional challenges
to those requirements implicate the legality of sentencing, and, thus, cannot
be waived, see Thorne, 276 A.3d at 1194, 1198, we remand. Thorne’s
issues, which mirror those presented in Commonwealth v. Torsilieri, 232
A.3d 567 (Pa. 2020),3 are presented for the first time in Thorne’s appellate
brief. Thus, remand is appropriate “to allow the parties to address whether a
consensus has developed to call into question the relevant legislative policy
decisions impacting offenders’ constitutional rights.” Id. at 595.4
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3 Thorne raised the following challenges on direct appeal:
Appellant submits that SORNA’s lifetime registration requirement
constitutes an illegal sentence as the registration/notification
provisions qualify as punishment and effectively extended
Appellant’s maximum sentence without a jury’s finding of the
offender’s future dangerousness.
Appellant asserts that SORNA’s lifetime registration requirement
constitutes an illegal sentence as it is violative of the state and
federal constitutional prohibitions against cruel and unusual
punishment.
Appellant’s Brief, at 7.
4 In Commonwealth v. Muniz, 164 A.3d 1189, 1193 (Pa. 2017), superseded
by statute as stated in, Commonwealth v. Lacombe, 234 A.3d 602, 607 n.4
(Pa. 2020), our Supreme Court held SORNA’s registration requirements were
“punitive,” and, thus, could not be retroactively applied to individuals whose
offenses predated enactment of the statute. Thereafter, this Court relied upon
Muniz to conclude that the provisions of the statute applicable to sexually
violent predators (“SVPs”), were also unconstitutional. See Commonwealth
v. Butler, 173 A.3d 1212, 1218 (Pa. Super. 2017) (“Butler I”), reversed by,
Commonwealth v. Butler, 226 A.3d 972 (Pa. 2020) (“Butler II”). In
response, the General Assembly passed amendments to SORNA, commonly
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referred to as Acts 10 and 29. Through Act 10, as amended in Act 29
(collectively, SORNA II), the General Assembly divided 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.A. §§ 9799.10-
9799.42. Here, Thorne’s offenses occurred between July 30, 2015 and July
30, 2017; thus, he is subject to registration under Revised Subchapter H.
Notably, in enacting SORNA II, the General Assembly expressed its intention
and declaration of policy as “a means of assuring public protection and
shall not be construed as punitive.” 42 Pa.C.S. § 9799.11(b)(2)
(emphasis added).
Following these amendments, our Supreme Court held in Lacombe, supra at
626-27, that Subchapter I’s registration requirements do not constitute
punishment. The Pennsylvania Supreme Court also overruled Butler I and
held that the registration requirements of Subchapter H applicable to SVPs
also do not constitute punishment. Butler II, supra at 993. However,
neither case is applicable here. Lacombe is inapposite because Thorne is not
within the class of registrants covered by Subchapter I, as his offenses were
committed after December 20, 2012, and Butler II involved provisions
related to the SVP designation, which “is not relevant to [Thorne], who was
not designated an SVP.” Torsilieri, 232 A.3d at 572 n.2.
Thus, as the Supreme Court has acknowledged, “the viability of [Thorne’s
constitutional] claims depends on whether Revised Subchapter H is punitive
in nature such that Revised Subchapter H’s lifetime registration requirements
are part of [Thorne’s] criminal sentence.” Thorne, supra at 1198 n. 14.
See Commonwealth v. Snyder, 251 A.3d 782, 793 (Pa. Super. 2021)
(observing Torsilieri trial court concluded Subchapter H was “punitive”
pursuant to seven-factor test set forth in Kennedy v. Mendoza-Martinez,
372 U.S. 144 (1963), citing Torsilieri, supra at 588-94). Notably, the
Supreme Court in Torsilieri stated that the Torsilieri trial court’s
labeling of Revised Subchapter H as punitive was impacted by its
assessment of [Torsilieri’s] expert evidence such that reevaluation
of the balancing of the seven Mendoza-Martinez factors is
appropriate following presentation of additional scientific evidence
on remand. The trial court’s conclusion that Revised Subchapter
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Here, because Thorne’s constitutional challenges were presented for the
first time on appeal, there is no factual record before us. Therefore, in
accordance with Torsilieri, we remand. See Torsilieri, 232 A.2d at 594
(where record showed no consensus of scientific evidence demonstrating
presumption is not universally true, nor “clearest proof” needed to overturn
General Assembly’s statements that provisions are not punitive, which
requires more than mere showing of disagreement among relevant
authorities). See also Commonwealth v. Mickley, 240 A.3d 957 (Pa.
Super. 2020) (remanding pursuant to Torsilieri); Commonwealth v.
Asher, 244 A.3d 27 (Pa. Super. 2020) (same).
Case remanded for proceedings consistent with Torsilieri. Jurisdiction
relinquished.
Judge Musmanno did not participate in the consideration or decision of this
case.
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H is punitive inevitably resulted in the court’s determination that
the registration requirements were part of [Torsilieri’s] criminal
sentence, and thus, subject to the various constitutional and
statutory protections. Evaluating each challenge raised by
[Torsilieri], the trial court concluded that [ ] Revised Subchapter
H violated the dictates of Apprendi and Alleyne 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[.]
Torsilieri, supra at 594. Essentially, the Court directed the trial court to
reevaluate the Mendoza-Martinez factors, this time considering the
defense's scientific evidence, as well as the Commonwealth’s opposing
science.
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