Com. v. Miller, M. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MARK LEE MILLER :
:
Appellant : No. 2513 EDA 2019
Appeal from the Judgment of Sentence Entered July 1, 2019
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0001451-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK LEE MILLER :
:
Appellant : No. 2514 EDA 2019
Appeal from the Judgment of Sentence Entered July 1, 2019
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0001452-2018
BEFORE: SHOGAN, J., LAZARUS, J., and COLINS, J.*
MEMORANDUM BY SHOGAN, J.: Filed: December 30, 2020
Appellant, Mark Lee Miller, appeals from the judgments of sentence
entered following his convictions of incest at CP-45-CR-0001451-2018 and
aggravated indecent assault at CP-45-CR-0001452-2018. At the time of
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* Retired Senior Judge assigned to the Superior Court.
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sentencing, the trial court deemed Appellant to be a Tier-III offender and
ordered Appellant to comply with the Sexual Offenders Registration and
Notification Act (“SORNA”), 42 Pa.C.S. §§9799.10 et seq., as modified by Act
10 and Act 29 of 2018 (“SORNA II”). Upon careful review, we affirm in part
and vacate the portion of Appellant’s judgments of sentence deeming him to
be a Tier-III offender under SORNA II, and remand for further proceedings
consistent with this memorandum.
We consider only the procedural history of this case because the
underlying facts of this matter are not pertinent to this appeal. On July 1,
2019, Appellant pled nolo contendere to the crimes stated above.1 That same
day the trial court sentenced Appellant to serve an aggregate term of
incarceration of five to ten years, followed by ten years of probation. The trial
court also ordered Appellant to register as a Tier-III offender under SORNA II.
On July 10, 2019, Appellant filed post-sentence motions in the above-
captioned cases, in which he challenged the constitutionality of SORNA II. At
that time, our Supreme was still considering the case of Commonwealth v.
Torsilieri, No. 37 MAP 2018, 2020 WL 3241625 (Pa. filed June 16, 2020). In
Appellant’s post-sentence motions, he raised claims identical to the issues
upon which the trial court in Torsilieri deemed SORNA II unconstitutional.
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1 This Court has long noted that in “terms of its effect upon a case, a plea of
nolo contendere is treated the same as a guilty plea.” Commonwealth v.
Laszczynski, 715 A.2d 1185, 1187 n.3 (Pa. Super. 1998) (quoting
Commonwealth v. Nelson, 666 A.2d 714, 717 (Pa. Super. 1995)).
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Appellant’s Post-Sentence Motion, 9/10/19, at 2-3. “On July 19, 2019, the en
banc panel [of the Court of Common Pleas of Monroe County that had been
empaneled to hear a variety of challenges to SORNA II raised by other SORNA
registrants] entered an order (“the SORNA order”) denying the constitutional
challenges to SORNA [II].” Trial Court Opinion, 10/11/19, at 2. Based on the
SORNA order, the trial court denied Appellant’s post-sentence motions without
a hearing on July 22, 2019. Id. These timely appeals followed. Both
Appellant and the trial court complied with Pa.R.A.P. 1925. We will address
these two cases in a single memorandum, and observe that Appellant has filed
with this Court appellate briefs under each of the captions set forth above that
are essentially identical in the issues set forth and the arguments presented.
Appellant presents the following issues for our review:
1. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW
AND ABUSED ITS DISCRETION IN FAILING TO FIND THAT SORNA
DENIES THE DEFENDANT DUE PROCESS UNDER ARTICLE 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 THE FUNDAMENTAL RIGHT TO REPUTATION?
2. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW
AND ABUSED ITS DISCRETION IN FAILING TO FIND THAT SORNA
DENIES THE DEFENDANT PROCEDURAL DUE PROCESS UNDER
ARTICLE 11 OF THE PENNSYLVANIA CONSTITUTION BECAUSE IT
UNLAWFULLY IMPINGES ON THE RIGHT TO REPUTATION
WITHOUT NOTICE AND AN OPPORTUNITY TO BE HEARD?
3. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW
AND ABUSED ITS DISCRETION IN FAILING TO FIND THAT SORNA
DENIES THE DEFENDANT PROCEDURAL DUE PROCESS UNDER
THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED
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STATES CONSTITUTION BECAUSE IT UNLAWFULLY RESTRICTS
LIBERTY AND PRIVACY WITHOUT NOTICE AND AN OPPORTUNITY
TO BE HEARD?
4. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW
AND ABUSED ITS DISCRETION IN FAILING TO FIND THAT SORNA
VIOLATES SUBSTANTIVE DUE PROCESS UNDER THE STATE AND
FEDERAL CONSTITUTIONS, U.S. CONST. AMEND. XIV, PA.
CONST. ART. I, § 1, BECAUSE SORNA DEPRIVES INDIVIDUALS OF
INALIENABLE RIGHTS AND FAILS TO SATISFY STRICT SCRUTINY?
5. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW
AND ABUSED ITS DISCRETION IN FAILING TO FIND THAT SORNA
CONSTITUTES CRIMINAL PUNISHMENT AND THEREFORE
VIOLATES THE SEPARATION OF POWERS DOCTRINE BECAUSE IT
USURPS THE EXCLUSIVE JUDICIAL FUNCTION OF IMPOSING A
SENTENCE?
6. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW
AND ABUSED ITS DISCRETION IN FAILING TO FIND THAT SORNA
CONTRAVENES THE 5TH, 6TH AND 14TH AMENDMENTS OF THE
UNITED STATES CONSTITUTION AND THE CORRESPONDING
PROTECTIONS OF THE PENNSYLVANIA CONSTITUTION BECAUSE
AS A CRIMINAL PUNISHMENT, SORNA CANNOT BE IMPOSED
WITHOUT DUE PROCESS, NOTICE AND OPPORTUNITY TO
CONTEST ITS IMPOSITION, AND ENSURING THAT EACH FACT
NECESSARY TO SUPPORT THE MANDATORY SENTENCE IS
SUBMITTED TO A JURY AND PROVEN BEYOND A REASONABLE
DOUBT PURSUANT TO APPRENDI V. NEW JERSEY, 530 U.S.
266 (2000) AND ALLEYNE V. UNITED STATES, 1570 U.S. 99
(2013)?
7. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW
AND ABUSED ITS DISCRETION IN FAILING TO FIND SORNA
CONSTITUTES CRIMINAL PENALTIES AND THEREFORE THE
IMPOSITION OF MANDATORY LIFETIME SEX OFFENDER
REGISTRATION FOR NEARLY ALL TIER III OFFENSES IS A CRUEL
AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 13 OF THE
PENNSYLVANIA CONSTITUTION?
8. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW
AND ABUSED ITS DISCRETION IN FAILING TO FIND SORNA
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CONSTITUTES CRIMINAL PUNISHMENT, THEREFORE 42 PA.
C.S.A. § 9799.24(E)(3) VIOLATES THE SIXTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND THE CORRESPONDING
PROVISION OF THE PENNSYLVANIA CONSTITUTION AS IT
ENHANCES THE DEGREE OF PUNISHMENT BEYOND THE
OTHERWISE PROSCRIBED SORNA REQUIREMENTS ON A FINDING
OF CLEAR AND CONVINCING EVIDENCE AS OPPOSED TO BEYOND
A REASONABLE DOUBT AND THE DEFENDANT DOES NOT HAVE
AN ABILITY TO SUBMIT THE QUESTION TO A JURY?
Appellant’s Brief at 5-8.
We address Appellant’s eighth issue first, wherein he challenges the
procedure under SORNA II for determining whether an individual is a sexually
violent predator (“SVP”). Appellant’s Brief at 56-61. Appellant concludes that
the trial court erred in failing to find that SORNA II constitutes criminal
punishment, and “therefore 42 Pa.C.S. § 9799.24(e)(3) violates the Sixth
Amendment to the United States Constitution and the corresponding provision
of the Pennsylvania Constitution, as it enhances the degree of punishment
beyond the otherwise proscribed SORNA [II] requirements on a finding of clear
and convincing evidence as opposed to beyond a reasonable doubt and the
defendant does not have an ability to submit the question to a jury.” Id. at
60-61.
Recently, in Commonwealth v. Butler, 226 A.3d 972 (Pa. 2020), our
Supreme Court determined that this issue lacks merit. The Court held that the
registration, notification, and counseling requirements of SORNA II “do not
constitute criminal punishment and therefore the procedure for designating
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individuals as SVPs under [42 Pa.C.S. §] 9799.24(e)(3) is ... constitutionally
permissible.” Id. at 976. Accordingly, Appellant’s contrary claim fails.
We next address Appellant’s first seven issues together, as they are all
claims identical to the matters considered by our Supreme Court in Torsilieri.
Therefore, Torsilieri guides our disposition in this case.
In Torsilieri, the Commonwealth appealed from the trial court’s order
deeming SORNA II unconstitutional under multiple legal theories pertaining to
the registration and reporting requirements set forth in Subchapter H of the
statute. More specifically, the trial court:
concluded that the registration and notification provisions of
Revised Subchapter H[2] violated [Torsilieri’s] right to due process
by impairing his right to reputation, as protected by the
Pennsylvania Constitution, through the utilization of an
irrebuttable presumption. The court also concluded that the
statute violated his right to due process under the United States
and Pennsylvania Constitutions because the statutory system
failed to provide the requisite notice and opportunity to be heard.
It also concluded that Revised Subchapter H violated the
separation of powers doctrine because the General Assembly’s
enactment of Revised Subchapter H essentially removed the trial
court’s ability to fashion an individualized sentence. Finally, the
court held that the statute violated Alleyne and Apprendi by
allowing “the imposition of enhanced punishment based on an
irrebuttable presumption of future dangerousness that is neither
determined by the finder of fact nor premised upon proof beyond
a reasonable doubt.” The court, therefore, vacated [Torsilieri’s]
sentence to the extent it required him to comply with Revised
Subchapter H’s sexual offender registration provisions.
Torsilieri, 2020 WL 3241625 at *3 (citation omitted).
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2 The Supreme Court uses the term “Revised Subchapter H” to refer to
Subchapter H as it appears under SORNA II.
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In order to resolve all of the constitutional challenges, the Torsilieri
Court concluded that factual and credibility findings were necessary regarding
whether “the legislative determinations underpinning Revised Subchapter H
[of SORNA II] … (1) that all sexual offenders pose a high risk of recidivation
and (2) that the tier-based registration system of Revised Subchapter H
protects the public from the alleged danger of recidivist sexual offenders …
have been undermined by recent scientific studies….” Id. at *21.
In our recent decision in Commonwealth v. Mickley, ___ A.3d ___,
1258 EDA 2019 (Pa. Super. filed September 24, 2020), we recognized the
following with regard to Torsilieri and its conclusion compelling a remand to
the trial court for development of an evidentiary record:
The Torsilieri Court did not reach the merits of any of the
constitutional claims at issue, determining instead that the factual
record was not sufficiently developed in the trial court. The Court
concluded a remand was 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 *13. The Court stated:
We recognize that the Commonwealth parties
relied upon our recent statement in Muniz, rejecting
[ ] expert evidence calling into question the
legislature’s assessment of sexual offender recidivism
risks and the effectiveness of tier-based registration
systems. In light of this reliance, we emphasize that
all cases are evaluated on the record created in the
individual case. Thus, a court need not ignore new
scientific evidence merely because a litigant in a prior
case provided less convincing evidence. Indeed, this
Court will not turn a blind eye to the development of
scientific research, especially where such evidence
would demonstrate infringement of constitutional
rights.
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Nevertheless, we also emphasize that it will be
the rare situation where a court would reevaluate a
legislative policy determination, which can only be
justified in a case involving the infringement of
constitutional rights and a consensus of scientific
evidence undermining the legislative determination.
We reiterate that while courts are empowered to
enforce constitutional rights, they should remain
mindful that “the wisdom of a public policy is one for
the legislature, and the General Assembly’s
enactments are entitled to a strong presumption of
constitutionality rebuttable only by a demonstration
that they clearly, plainly, and palpably violate
constitutional requirements.”
* * *
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 [the
Commonwealth] has refuted the relevant legislative
findings supporting the challenged registration and
notification provisions of Revised Subchapter H.
Id. at *21 (emphasis added) (citations omitted).
Mickley, ___ A.3d at ___, 1258 EDA 2019 at * 9-10.
Instantly, the trial court denied without a hearing Appellant’s post-
sentence motions, which raised claims identical to those at issue in Torsilieri.
In doing so, the trial court relied exclusively on the SORNA order. See Order,
7/23/19, at 1 ¶ 1 (denying Appellant’s constitutional challenges “for the
reasons set forth in the separate en banc order of this Court”); Trial Court
Opinion, 10/11/19, at 2 (“The SORNA [o]rder stated the reasons for the
denial”). The trial court further noted Appellant’s “challenge will ultimately
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rise or fall with our Supreme Court’s decision in the Torsilieri appeal.” Id.
However, the SORNA order contains no analysis of the Torsilieri issues.
SORNA Order, 7/18/19, at 2-3.
Here, there is no evidence of record to decide any of the issues before
us. Thus, following Torsilieri, we vacate the order denying Appellant’s post-
sentence motions and remand for a hearing at which the parties can present
evidence for and against the relevant legislative determinations discussed
above. Otherwise, we affirm Appellant’s judgments of sentence in all other
respects.
Judgments of sentence vacated in part and affirmed in part. Case
remanded for further proceedings consistent with this memorandum and
Torsilieri. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/20
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