Com. v. Conroy, K. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
KEVIN THOMAS CONROY :
:
Appellant : No. 2441 EDA 2019
Appeal from the Judgment of Sentence Entered May 17, 2019
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0001315-2018
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED FEBRUARY 17, 2021
Appellant, Kevin Thomas Conroy, appeals from the aggregate judgment
of sentence of 78 to 180 months of confinement, which was imposed after he
pleaded guilty to one count of criminal attempt to commit involuntary deviate
sexual intercourse with a child, two counts of endangering welfare of children,
and one count of child pornography.1 After careful review, we affirm.
Appellant engaged in a pattern of criminal behavior between 2008 and
2015. On November 1, 2018, he pleaded guilty to the aforementioned
charges, and, on May 17, 2019, he was sentenced. On May 23, 2019,
Appellant filed timely post-sentence motions, which he amended the next day,
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 901(a) (to commit § 3123(b)), § 4304(a)(1), and § 6312(d),
respectively.
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including: (1) a motion to bar application of Pennsylvania’s Sex Offender
Registration and Notification Act (“SORNA”), 42 Pa.C.S. §§ 9799.10-9799.42,2
and (2) a request that a “no contact provision with [the victim,] R.C.[,] be
subject to the victim’s request for contact, contact pursuant to R.C.’s
counselor’s recommendation, or contact if the victim desires after she is of the
age of majority.” Amended Post Sentence Motion and Reconsideration of
Sentence, 5/24/2019, at 6. For the former challenge, Appellant contended:
SORNA denies [Appellant] [d]ue [p]rocess under Article 1 and 11
[sic] of the Pennsylvania Constitution because it creates an
irrebuttable presumption that those convicted of enumerated
offenses “pose a high risk of committing additional sexual
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2 Act of December 20, 2011, P.L. 446, No. 111, § 12; amended by Act of
February 21, 2018, P.L. 27, No. 10, §§ 1-20, effective immediately (“Act 10”);
and re-enacted and amended by Act of June 12, 2018, P.L. 140, No. 29, §§ 1-
23, effective immediately.
Act 10 split SORNA, which was previously designated in the
Sentencing Code as Subchapter H, into two subchapters. Revised
Subchapter H applies to crimes committed on or after
December 20, 2012, whereas Subchapter I applies to crimes
committed after April 22, 1996, but before December 20, 2012.
In essence, Revised Subchapter H retained many of the
provisions of SORNA, while Subchapter I imposed arguably
less onerous requirements on those who committed
offenses prior to December 20, 2012, in an attempt to address
this Court’s conclusion in [Commonwealth v.] Muniz[, 164 A.3d
1189 (Pa. 2017) (plurality),] that application of the original
provisions of SORNA to these offenders constituted an ex post
facto violation.
Commonwealth v. Torsilieri, 232 A.3d 567, 580–81 (Pa. 2020) (emphasis
added). Subchapter I was designed to ensure that those required to register
retroactively under SORNA — and therefore entitled to relief following
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (plurality) — will still
have to do so.
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offenses” depriving those individuals of the fundamental right to
reputation. . . .
SORNA constitutes criminal punishment and therefore violates the
separation of powers doctrine because it usurps the exclusive
judicial function of imposing a sentence.
Id. at 4-5.
On May 31, 2019, the Court of Common Pleas of Monroe County sat en
banc to hear Appellant’s SORNA challenge along with a number of other
defendants who had likewise challenged SORNA’s constitutionality. At the
hearing, Appellant’s counsel joined with the arguments of the other
defendants’ counsel, N.T., 5/31/2019, at 22, that SORNA was punitive and
violated due process by creating a rebuttable presumption that a sex offender
is likely to reoffend. Id. at 9-11, 15-19. The panel and counsel discussed
scientific studies about the rate of recidivism amongst sexual offenders
compared to other criminals, but the studies themselves were never
introduced into evidence. Id. at 20-21, 26-27. In fact, no evidence was
presented at the hearing on Appellant’s post-sentence motion. See generally
id. Finally, Appellant and the other defendants requested that the en banc
panel declare SORNA unconstitutional in its entirety, citing to a decision from
the Chester County Court of Common Pleas, Commonwealth v. Torsilieri,
Docket Number CP-15-CR-0001570-2016,3 which found Subchapter H to be
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3 At the time of the en banc panel of the Court of Common Pleas of Monroe
County, two appeals of the Torsilieri decision from the Court of Common
Pleas of Chester County were pending: one appeal by Defendant Torsilieri
before this Court, Commonwealth v. Torsilieri, 221 A.3d 280 (Pa. Super.
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unconstitutional. Id. at 23. A “July 18, 2019 Order disposed of the
constitutional issue raised by Appellant.” Trial Court Opinion, dated
September 19, 2019, at 1. On August 16, 2019, Appellant filed this timely
direct appeal.4
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 provide that [Appellant] can have contact
with R.C. only at R.C.’s desire after they are of the age of majority
or pursuant to R.C.’s counselor’s recommendation?
[2.] Whether the trial court erred as a matter of law and abused
its discretion in failing to find that SORNA denies [Appellant] due
process under Article 1 and 11 [sic] 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”[5] depriving those
individuals of the fundamental right to reputation?
[3.] Whether the trial court erred as a matter of law and abused
its discretion in failing to find that SORNA denies [Appellant]
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filed August 16, 2019); and a second appeal by the Commonwealth filed
directly to the Supreme Court of Pennsylvania pursuant to 42 Pa.C.S. § 722(7)
(relating to the Supreme Court’s exclusive jurisdiction over appeals from final
orders of the Court of Common Pleas in matters where the Court of Common
Pleas has held, inter alia, a statute to be unconstitutional), Commonwealth
v. Torsilieri, 232 A.3d 567 (Pa. 2020). In the former, this Court affirmed,
and Defendant Torsilieri petitioned for allowance of appeal with the
Pennsylvania Supreme Court, which our Supreme Court denied.
Commonwealth v. Torsilieri, 230 A.3d 338 (Pa. 2020).
4 Appellant filed his statement of errors complained of on appeal on
September 10, 2019. The trial court entered its opinion on September 19,
2019.
5The section of SORNA entitled “Legislative findings, declaration of policy and
scope” explicitly asserts: “Sexual offenders pose a high risk of committing
additional sexual offenses and protection of the public from this type of
offender is a paramount governmental interest.” 42 Pa.C.S. § 9799.11(a)(4).
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procedural due process under Article 11 [sic] of the Pennsylvania
constitution because it unlawfully impinges on the right to
reputation 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 denies [Appellant]
procedural due process under the Fifth and Fourteenth
Amendments to the United States Constitution because it
unlawfully restricts liberty and privacy without notice and an
opportunity to be heard?
[5.] 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?
[6.] 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?
[7.] 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)?
[8.] Whether the trial court erred as a matter of law and abused
its discretion in failing to find SORNA 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
[Appellant] does not have an ability to submit the question to a
jury?
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[9.] 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?
Appellant’s Brief at 5-9 (issues reordered to facilitate disposition) (headings,
suggested answers, and unnecessary capitalization omitted).
Appellant first contends that “the trial court erred as a matter of law
and abused its discretion in failing to provide that [Appellant] can have contact
with R.C. only at R.C.’s desire after they are of the age of majority or pursuant
to R.C.’s counselor’s recommendation.” Id. at 64. Appellant’s brief provides
no law in support of his challenge to the “no contact provision,” see id. at 64-
65, and, accordingly, this claim is waived. Pa.R.A.P. 2119(a) (argument shall
include citation of authorities); Kelly v. Carman Corporation, 229 A.3d 634,
656 (Pa. Super. 2020) (citing Commonwealth v. Spotz, 18 A.3d 244, 281
n.21 (Pa. 2011) (without a “developed, reasoned, supported, or even
intelligible argument[, t]he matter is waived for lack of development”
(emphasis added)); In re Estate of Whitley, 50 A.3d 203, 209 (Pa. Super.
2012) (“The argument portion of an appellate brief must include a pertinent
discussion of the particular point raised along with discussion and citation of
pertinent authorities[; t]his Court will not consider the merits of an argument
which fails to cite relevant case or statutory authority” (internal citations and
quotation marks omitted)); Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa.
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Super. 2006) (explaining appellant’s arguments must adhere to rules of
appellate procedure, and arguments which are not appropriately developed
are waived on appeal; arguments not appropriately developed include those
where party has failed to cite any authority in support of contention)).
Appellant’s remaining claims concern his sexual offender registration
requirements. Preliminarily, the question of whether current Subchapter H or
Subchapter I of SORNA applies to Appellant is a crucial starting point. In the
current case, Appellant committed his crimes between 2008 and 2015 – i.e.,
both before and after December 20, 2012. According to Commonwealth v.
Alston, 212 A.3d 526, 528, 530 (Pa. Super. 2019), “when an appellant’s
offenses straddle the effective dates of Subchapters H and I of SORNA” and
“the jury did not specifically find the date of the offenses,” the application of
Subchapter H is unconstitutional, as it “mirrors the version of SORNA found
unconstitutional in” Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)
(plurality); “instead, the court should apply Subchapter I.” However, Alston
involves jury trial convictions, where “the jury did not specifically find the date
of the offenses[.]” Id. at 527-28. In the current action, Appellant pleaded
guilty, and this Court has not issued a published opinion applying Alston to a
guilty plea involving a range of offenses straddling the operative dates of
Subchapters H and I. Accordingly, we cannot assume that Alston applies to
the current appeal.
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“Appellant bore the burden of establishing the unconstitutionality of a
statute, [and] it follows that Appellant was required to argue to the [lower]
court which subchapter applies as a threshold for a constitutional challenge
and to sustain his challenge with affirmative proof and legal support.”
Commonwealth v. Beard, No. 3306 EDA 2019, unpublished memorandum
at 17 (Pa. Super. filed December 30, 2020).6 In the current action, Appellant
did not attempt to establish which subchapter applied. Accordingly,
uncertainty remains as to whether Appellant is actually subject to current
Subchapter H or Subchapter I, and Appellant did not preserve any arguments
in the trial court nor address these issues on appeal. See Pa.R.A.P. 302(a)
(“Issues not raised in the trial court are waived and cannot be raised for the
first time on appeal.”). For these reasons, as in Beard, No. 3306 EDA 2019,
at 8, we affirm.
Judgment of sentence affirmed.
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6 Pursuant to Pa.R.A.P. 126(b) (effective May 1, 2019):
(1) As used in this rule, “non-precedential decision” refers to an
unpublished non-precedential memorandum decision of the
Superior Court filed after May 1, 2019 . . .
(2) Non-precedential decisions as defined in (b)(1) may be cited
for their persuasive value.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2021
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