Com. v. Chai, J. ( 2021 )

J-A03017-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JERRY CHAI :
:
Appellant : No. 135 WDA 2018
Appeal from the Judgment of Sentence Entered September 25, 2017
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0005246-2014
BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J.*
CONCURRING MEMORANDUM BY BOWES, J.: FILED: APRIL 13, 2021
Although I find no legal error in the Majority’s analysis, I write separately
to express my belief that the decision of Commonwealth v. Reslink, ___
A.3d ___, 2020 WL 7415959 (Pa.Super. 2020), was wrongly decided.
Like Appellant in the instant case, Reslink was subject to tier-based
registration under Subchapter H of the Pennsylvania Sentencing Code. See
42 Pa.C.S. § 9799.14(b)(6). He asserted for the first time on appeal that
Subchapter H creates “an irrefutable and irrebuttable presumption against the
offender” and is, therefore, unconstitutional. Reslink, supra at *3. In
relevant part, Reslink claimed that his registration obligations under
Subchapter H constituted “cruel and unusual punishment” 1 and also violated
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* Retired Senior Judge assigned to the Superior Court.
1 See U.S. CONST., VIII Amend.; PA. CONST., Art. 1, § 13.
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Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“[I]t is unconstitutional
for a legislature to remove from the jury the assessment of facts that increase
the prescribed range of penalties to which a criminal defendant is exposed;
. . . such facts must be established by proof beyond a reasonable doubt.”).
These constitutional claims for relief sounded in legality of sentence.
See Commonwealth v. Newman, 99 A.3d 86, 91 (Pa.Super. 2014) (en
banc) (“[A] challenge to a sentence premised upon Apprendi implicates the
legality of that sentence[.]”); Commonwealth v. Yasipour, 957 A.2d 734,
740 n.3 (Pa.Super. 2008) (“[A]n appellant who challenges the constitutionality
of his sentence of imprisonment on a claim that it violates his right to be free
from cruel and unusual punishment raises a legality of sentencing claim since
he is challenging the trial court’s authority in imposing the sentence.”).
While Pa.R.A.P. 302(a) provides that “[i]ssues not raised in the trial
court are waived and cannot be raised for the first time on appeal,” it is a well-
established precept of Pennsylvania law that such waiver does not apply to
claims for relief that implicate the legality of a defendant’s sentence. See
Commonwealth v. Wolfe, 140 A.3d 651, 660 (Pa. 2016) (“[L]egality-of-
sentence claims are not subject to traditional waiver doctrine.”);
Commonwealth v. Hodges, 193 A.3d 428, 432-33 (Pa.Super. 2018) ("Rule
302’s prohibition does not apply to claims of an illegal sentence[.]”).
Nonetheless, this Court found these legality-of-sentence claims waived due to
Reslink’s failure to raise them in the trial court, without acknowledging the
apparent inconsistency of this holding. Reslink, supra at *4.
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Turning to the instant case, a significant portion of Appellant’s
constitutional arguments implicate the prohibitions against cruel and unusual
punishment contained in the United States and Pennsylvania Constitutions.
See Appellant’s brief at 67-69. This claim for relief clearly implicates the
legality of Appellant’s sentence.2 See Yasipour, supra at 740 n.3. However,
the Majority correctly concludes that we are bound to find Rule 302(a) waiver
under Reslink because Appellant did not raise this argument in the trial court.
Cf. Wolfe, supra at 660; Hodges, supra at 432-33.
Accordingly, I am constrained to concur in the Majority’s holding.3
However, in my view, Reslink was wrongly decided and it constitutes a
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2 By contrast, Appellant’s arguments raising separate constitutional concerns
regarding the presumption of recidivism contained in Subchapter H do not
pertain to the legality of his sentence. See Commonwealth v. Muniz, 164
A.3d 1189, 1195 n.7 (Pa. 2017) (finding waiver under Pa.R.A.P. 302(a) as to
issues concerning the “reputation clause of the Pennsylvania Constitution”),
superseded by statute on separate grounds, Commonwealth v. Lacombe,
234 A.3d 602, 607 n.4 (Pa. 2020).
3 I also note that Appellant’s assertions concerning the alleged cruelty of his
registration obligations align closely with arguments recently adjudicated in
Commonwealth v. Torsilieri, 232 A.3d 567, 594 (Pa. 2020) (remanding for
further development of the record concerning claims that, inter alia, the
provisions of Subchapter H “resulted in an excessive sentence in violation of
the federal and state constitutional provisions related to cruel and unusual
punishments”), and Commonwealth v. Mickley, 240 A.3d 957, 960-63
(Pa.Super. 2020) (same). In both of these cases, the reviewing appellate
court remanded to the trial court so that the factual record could be properly
developed and to give both parties an opportunity to fully present argument.
Were we not bound by the holding in Commonwealth v. Reslink, ___ A.3d
___, 2020 WL 7415959, at *4 (Pa.Super. 2020), I would remand this case for
further proceedings limited to the discrete issue of cruel and unusual
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significant deviation from our established precedent concerning the ambit of
waiver under Rule 302(a).
I reluctantly concur.
Judge Strassburger did not participate in the consideration or decision
of this Concurring Memorandum.
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punishment raised in Appellant’s brief. Accord Torsilieri, supra at 595
(remanding despite determining the Commonwealth “prevented the necessary
development of the record”); Mickley, supra at 963 (remanding where no
evidence concerning constitutional claims was presented in the trial court).
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