Com. v. Chai, J. ( 2023 )

J-S15045-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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., STABILE, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED: AUGUST 1, 2023
Jerry Chai (“Chai”) appeals from the judgment of sentence imposed
following his conviction for indecent assault.1 This matter returns to this Court
after our Supreme Court remanded for this Court to apply Commonwealth
v. Thorne, 276 A.3d 1192 (Pa. 2022) (holding that legality-of-sentence
claims involving current Subchapter H of Pennsylvania’s Sexual Offender
Registration and Notification Act2 (“SORNA”) can be raised for the first time
on appeal). We remand.
The parties are familiar with the factual and procedural history of this
appeal, and we briefly note that in 2014, Chai sexually assaulted S.F. A jury
found Chai guilty of indecent assault, and, on September 25, 2017, the trial
court sentenced him to two years of probation and directed him to register for
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1 See 18 Pa.C.S.A. § 3126(a)(1).
2 See 42 Pa.C.S.A. §§ 9799.11-9799.42 (as amended effective 2018).
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fifteen years as a sexual offender pursuant to Subchapter H. Chai took a
timely appeal challenging: (1) the impartiality of a juror; (2) the weight of the
evidence; and (3) his registration requirement, which he claimed constituted
an illegal sentence and violated his reputational rights.3 This Court affirmed
the judgment of sentence and, in relevant part, held that Chai waived his
claims that his registration requirement constituted an illegal sentence. See
Commonwealth v. Chai, 253 A.3d 277, 2021 WL 1386572, at *8 (Pa. Super.
2021) (unpublished memorandum) (finding Chai’s legality-of-sentence
challenge to Subchapter H waived pursuant to Commonwealth v. Reslink,
257 A.3d 21 (Pa. Super. 2020)).4
Chai filed a petition for allowance of appeal (“PAA”) in our Supreme
Court. Thereafter, our Supreme Court issued its decision in Thorne, which
disapproved of the waiver analysis in Reslink and held that challenges to
SORNA which implicate legality-of-sentence claims cannot be waived. See
Thorne, 276 A.3d at 1197-98. In the present case, the Court granted Chai’s
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3 Specifically, in his original brief to this Court (“Chai’s Brief”), Chai asserted
that his fifteen-year registration requirement exceeded the lawful maximum
penalty for his conviction. See Chai’s Brief, 8/22/18, at 67. Further, in
conjunction with his due process claims involving the irrebuttable
presumptions of future dangerousness and likelihood to reoffend, he asserted
that his registration requirement constituted a cruel and unusual punishment.
See Chai’s Brief, 8/22/18, at 67-69. Chai cited research contradicting the
presumption of dangerousness. See id. at 65-66.
4 Our esteemed colleague, the Honorable Mary Jane Bowes, concurred in the
prior decision and highlighted the problems of applying the waiver analysis set
forth in Reslink. See Chai, 2021 WL 1386572, at *8-9 (Bowes, J.,
concurring).
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PAA as to the SORNA issues and remanded to this Court to apply Thorne.
See Commonwealth v. Chai, 285 A.3d 885 (Pa. 2022) (per curiam order).
The Court denied allowance of appeal on Chai’s remaining issues. See id. at
886.
Following our Supreme Court’s remand, Chai filed in this Court a
supplemental brief requesting a remand to the trial court to afford him the
opportunity to substantiate his claims that his SORNA registration requirement
constituted an illegal sentence. The Commonwealth submitted a letter stating
that it did not oppose a remand to the trial court.
This Court, in Commonwealth v. Boyd, 287 A.3d 957 (Pa. Super.
2022), addressed similar procedures and claims involving legality-of-sentence
claims concerning Subchapter H. See Boyd, 287 A.3d at 958-59. The Boyd
Court remanded to the trial court for the development of a factual record on
claims that a Subchapter H registration requirement constituted an illegal
sentence. See id. at 960. Here, as in Boyd, we conclude that a remand is
appropriate for the development of the record on Chai’s legality-of-sentence
claims concerning his registration requirement.5
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5 We are mindful that in May 2023, our Supreme Court heard oral arguments
in Commonwealth v. Torsilieri, 97 MAP 2022, to consider the
Commonwealth’s appeal from a trial court’s decision that current Subchapter
H contains an unconstitutional irrebuttable presumption of recidivism, is
punitive, and imposes unconstitutional punishments. We note that both
Torsilieri and Boyd involve lifetime registration requirements, whereas the
instant appeal involves a fifteen-year registration requirement. Nevertheless,
we conclude that Chai, like Boyd, should have an opportunity to substantiate
his legality-of-sentence claims.
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Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/1/2023
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