Com. v. Elliott, A. ( 2021 )

J-S56015-20
2021 PA Super 58COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALFRED ELLIOTT :
:
Appellant : No. 3066 EDA 2019
Appeal from the PCRA Order Entered October 22, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1003221-2005
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
CONCURRING OPINION BY PELLEGRINI, J.: FILED: APRIL 5, 2021
Before us is an appeal by Alfred Elliott (Appellant) from an order of the
Court of Common Pleas of Philadelphia County (PCRA court) dismissing his
petition under the Post-Conviction Relief Act (PCRA) seeking to vacate the
reporting requirements imposed under the Sexual Offenders Registration and
Notification Act (SORNA) as untimely.1
In his PCRA petition, Appellant claimed that the new SORNA reporting
requirements violate the ex post facto clause of the United States Constitution
because they are punitive in nature precluding their retroactive application.
In his brief to this Court, Appellant contends that his due process rights under
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9799.10- 9799.41.
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the United States Constitution have been violated because there is no rational
basis to impose those requirements on him because he is not a high risk of
being a recidivist. He also claims that causing him to register as a sex offender
violates his inherent right to reputation under Article I, Section 1 of the
Pennsylvania Constitution, and before that right can be taken away, he is
entitled to a hearing. Without addressing the merits, the PCRA court
dismissed the petition as untimely because it was filed more than one year
after his conviction became final.
Relying on Commonwealth v. Smith, 240 A.3d 654, 658 (Pa. Super.
2020), which held that because SORNA imposes non-punitive, administrative
requirements substantive claims challenging SORNA registration requirements
are not cognizable under the PCRA, the majority finds that the PCRA court
erred in dismissing the petition as untimely. See also Commonwealth v.
Moose, ___ A.3d ___, 2021 Pa. Super 2 (Jan. 4, 2021). However, the
majority then goes on to dismiss the PCRA petition, finding that there were no
merits to his claims he raised on appeal. It held that his ex post facto claim
is without merit because in Commonwealth v. Lacombe, 234 A.3d 602 (Pa.
2020), our Supreme Court held that SORNA registration requirements were
not punitive in nature and, therefore, the ex post facto clause is inapplicable.
As to due process and reputation claims, the majority dismisses those claims
because they were not raised in the PCRA petition, as well as the arguments
were not fully developed in Appellant’s brief.
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I agree with the majority that the trial court erred in even conducting
an analysis under the PCRA to determine that it was timely. The PCRA only
“provides for an action by which persons convicted of crimes they did not
commit and persons serving illegal sentences may obtain collateral relief.” 42
Pa.C.S. § 9542. Because SORNA registration requirements are not criminal,
then by definition, those requirements are not part of the criminal sentence.
Moreover, SORNA itself does not give the trial court jurisdiction to
impose SORNA obligations as part of the sentence as it is just one of many
entities that has to inform a sex offender of his obligation to register. 42
Pa.C.S. § 9799.20 provides:
In order to implement the provisions of section 9799.19 (relating
to initial registration), as appropriate, the Pennsylvania State
Police, the court having jurisdiction over the sexual offender, the
chief juvenile probation officer of the court and the appropriate
official of the Pennsylvania Board of Probation and Parole, county
office of probation and parole, the Department of Public Welfare
or a State or county correctional institution shall:
(1) Inform the individual required to register of the
individual’s duties under this subchapter.
(2) Require the individual to read and sign a form stating
that the duty to register has been explained and that the individual
understands the registration requirement.
(3) Collect the information required under section 9799.16
(b) and (c) (relating to registry) and forward the information to
the Pennsylvania State Police for inclusion in the registry as set
forth in this subchapter.
Tellingly, the court’s failure to do so is irrelevant: “Failure by the court
to provide the information ... to correctly inform ... or to require a sexual
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offender to register shall not relieve the sexual offender from the requirements
of this subchapter.” 42 Pa.C.S. § 9799.23(b)(1). In fact, with limited
exceptions, a court has “no authority to relieve a sexual offender from the
duty to register ... or to modify the requirements[.]” 42 Pa.C.S.
§ 9799.23(b)(2).
From the above, it is clear that the PCRA is not the proper vehicle for
challenging SORNA registration requirements because, as a collateral
consequence of a criminal conviction, there was no illegal sentence; in fact,
no sentence at all to correct.2
Where I part company with the majority is that I would not have
addressed the substantive issues that Appellant raised or failed to properly
raise but would have dismissed his PCRA petition as not setting forth a claim
that falls within its statutory provisions; here, an illegal sentence. If he
continues to desire to challenge the SORNA registration requirements,
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2 It is problematic that SORNA registration requirements in a direct appeal of
the prescribed crime because all the trial court does is inform the defendant
of the collateral civil consequences of the conviction of the prescribed crime
which does not result in an appealable order on the docket from which to
appeal. See Pa.R.A.P. 301(a). The scheme echoes the trial court’s
responsibility under 75 Pa.C.S. § 1540 requirements that the trial court or the
district attorney, upon conviction by an offense which calls for mandatory
suspension of an individual’s operating privilege, to inform the defendant that
the suspension shall be effective within 60 days. A challenge to the imposition
of those collateral consequences are not part of the appeal of the underlying
offense, e.g., driving under the influence.
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Appellant needs to bring a due process “as applied” challenge in the
Commonwealth Court’s original jurisdiction3 to enjoin the Pennsylvania State
Police, the agency charged under 42 Pa.C.S. § 9799.22 and 42 Pa.C.S.
§ 9799.32, with implementing and enforcing SORNA, from enforcing those
requirements as applied to him. Those types of challenges will be tried in
accordance with Chapter 15 of the Pa. Rules of Appellate Procedure which
incorporates the Rules of Civil Procedure which provide for an orderly way for
a prompt disposition of the civil claims involved here.
According, for the foregoing reason, I respectfully concur in the
majority’s decision to dismiss Appellant’s PCRA petition.
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342 Pa. C.S. § 761(a) provides “General rule.--The Commonwealth Court shall
have original jurisdiction of all civil actions or proceedings: (1) Against the
Commonwealth government, including any officer thereof, acting in his official
capacity …,”.
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