Com. v. Macfarlane, J. ( 2023 )

J-S41039-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACK R MACFARLANE JR. :
:
Appellant : No. 272 WDA 2023
Appeal from the Judgment of Sentence Entered February 3, 2023
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0000206-2022
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: December 28, 2023
Appellant, Jack R MacFarlane, Jr., appeals from the judgment of
sentence entered in the Court of Common Pleas of Blair County that imposed
upon him an aggregate sentence of 10 to 20 years’ incarceration, followed by
10 years’ probation, after he pleaded guilty to multiple sex crimes. Herein,
he raises state constitutional challenges to the requirements of Revised
Subchapter H of Pennsylvania’s Sexual Offender Registration and Notification
Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10 to 9799.40.1 Because his
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* Former Justice specially assigned to the Superior Court.
1 Following Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017)
(plurality), cert. denied, 583 U.S. 1107, 138 S.Ct. 925, 200 L.Ed.2d 213(2018) and Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super. 2017)
(“Butler I”), rev'd, 657 Pa. 579, 226 A.3d 972 (2020) (“Butler II”), the
Pennsylvania General Assembly enacted legislation to amend SORNA I. See
Act of Feb. 21, 2018, P.L. 27, No. 10 (“Act 10”). Act 10 amended several
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constitutional challenges are presented for the first time on appeal, we vacate
judgment of sentence only insofar as it directs him to comply with Revised
Subchapter H of SORNA and remand for further development of the relevant
factual record.
The trial court provides the undisputed facts and procedural history of
the present matter, as follows:
The Defendant [(hereinafter “Appellant”)] was charged by
Criminal Information on or about May 2, 2022. The
Commonwealth charged Appellant with various sexual offenses
including six counts of involuntary deviate sexual intercourse, two
counts of statutory sexual assault, one count of unlawful contact
with minor, one count of aggravated indecent assault, one count
of corruption of minors, one count of intimidation, retaliation or
obstruction in child abuse case, two counts of indecent assault and
one count of selling or furnishing alcohol to a minor. The case
proceeded through the pre-trial process.
Appellant pled guilty [on all counts] on November 18, 2022,
pursuant to a plea agreement with the Commonwealth. [The trial
court] sentenced Appellant on February 3, 2023, on seven counts.
Appellant’s aggregate sentence was 10 to 20 years of
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provisions of SORNA I and added several new sections found at 42 Pa.C.S.A.
§§ 9799.42, 9799.51-9799.75. In addition, the Governor of Pennsylvania
signed new legislation striking the Act 10 amendments and reenacting several
SORNA I provisions, effective June 12, 2018. See Act of June 12, 2018, P.L.
1952, No. 29 (“Act 29”). Through Act 10, as amended in Act 29 (collectively,
SORNA II), the General Assembly split SORNA I's former Subchapter H into a
Revised Subchapter H and Subchapter I. Subchapter I addresses sexual
offenders who committed an offense on or after April 22, 1996, but before
December 20, 2012. See 42 Pa.C.S.A. §§ 9799.51-9799.75. Subchapter I
contains less stringent reporting requirements than Revised Subchapter H,
which applies to offenders who committed an offense on or after December
20, 2012. See 42 Pa.C.S.A. §§ 9799.10-9799.42. Based on Appellant's
offense date in this case, the applicable registration requirements fall under
Revised Subchapter H.
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incarceration which included charges of involuntary deviate sexual
intercourse of person less than 16 years of age and statutory
sexual assault. Appellant was also sentenced to an additional 10
years of probation running consecutive to his incarceration.
[During the sentencing hearing, Appellant, who was accompanied
by counsel, signed the Tier III Notice of Registration Requirements
without objection.]
On March 6, 2023, Appellant filed a [timely] Notice of Appeal.
[The trial court issued an Order on March 8, 2023, directing
Appellant to file a Concise Statement of Matters Complained of on
Appeal. As indicated above, Appellant filed his Concise Statement
of Matters Complained of on Appeal on April 11, 2023.
Trial Court Opinion, 4/19/23, at 1-2.
Appellant presents the following issue for this Court’s consideration:
Does the lifetime registration of persons convicted of Tier III
sexual sentences whose maximum sentence is twenty (20) years
violate the Pennsylvania Constitution?
Brief for Appellant, at 5.
The constitutionality of a statute presents a “pure question of law,” over
which our standard of review is de novo, and our scope of review is plenary.
Commonwealth v. Brooker, 103 A.3d 325, 334 (Pa. Super. 2014). Our
Supreme Court has also offered the following discussion of the burden borne
by those seeking to invalidate a statutory scheme on constitutional grounds:
In addressing constitutional challenges to legislative enactments,
we are ever cognizant that “the General Assembly may enact laws
which impinge on constitutional rights to protect the health,
safety, and welfare of society,” but also that “any restriction is
subject to judicial review to protect the constitutional rights of all
citizens.” In re J.B., 107 A.3d 1, 14 (Pa. 2014). We emphasize
that “a party challenging a statute must meet the high burden of
demonstrating that the statute clearly, palpably, and plainly
violates the Constitution.” Id.-3-
J-S41039-23
Commonwealth v. Torsilieri, 232 A.3d 567, 575 (Pa. 2020).
Appellant’s first two constitutional challenges assert that the clause
within Article I, Section I of the Pennsylvania Constitution recognizing
individual rights to protect one’s reputation and to pursue one’s own happiness
precludes the imposition of SORNA’s Revised Subchapter H, Tier III lifetime
registration requirement with the Pennsylvania State Police.2 In support of
this argument, Appellant claims that because his registration and reporting
requirements under SORNA will extend beyond his 20-year sentence, he
“would be precluded from protecting his reputation due to the mandates and
list-making and internet web sites which the Commonwealth and State Police
provide to the public.” Brief of Appellant at 7. As for his right to pursue
happiness, he essentially argues the lifetime stigma carried under this protocol
causes adverse economic and social consequences that implicitly deny this
right. Id.Initially, we inquire whether Appellant may gain this Court’s review of
these constitutional issues when he failed to raise them first with the trial
court. On this question, both the trial court and the Commonwealth conclude
he waived the issues because he failed to preserve them with a timely
objection lodged with the trial court.
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2 The Pennsylvania Constitution provides that “[a]ll men are born equally free
and independent, and have certain inherent and indefeasible rights, among
which are those of enjoying and defending life and liberty, of acquiring,
possessing and protecting property and reputation, and of pursuing their own
happiness.” Pa. Const. art. I, § 1 (emphasis added).
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In general, issues not properly raised and preserved before the trial
court “are waived and cannot be raised for the first time on appeal.” Pa. R.A.P.
302(a); see also Commonwealth v. Hill, 659 Pa. 359, 238 A.3d 399, 407
(2020) (noting issues not raised in trial court are waived and cannot thereafter
be raised for first time on appeal). An appellate issue implicating the legality
of one’s sentence, however, is an exception to the issue preservation
requirement and cannot be waived. See Commonwealth v. Thorne, 276
A.3d 1192, 1196 (Pa. 2022) (“Stated succinctly, an appellate court can
address an appellant's challenge to the legality of his sentence even if that
issue was not preserved in the trial court; indeed, an appellate court may
[even] raise and address such an issue sua sponte. Hill, 238 A.3d at 407”).3
Nevertheless, our jurisprudence has declined to construe issues raising
due process rights to reputation as legality of sentencing claims for purposes
of avoiding waiver:
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3 In Thorne, our Supreme Court explained,
In other words, our ruling today—i.e., that constitutional
challenges to the lifetime registration requirement set forth in
Revised Subchapter H, implicate the legality of a sentence and,
therefore, cannot be waived—would have no meaning if
individuals seeking to challenge Revised Subchapter H on
constitutional grounds were required to present evidence in
support thereof during his/her underlying criminal proceedings in
order to preserve the issue.
Thorne, supra at 1198 n.13.
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Preliminarily, we note that several of [Appellant Snyder’s]
arguments implicate alleged due process violations predicated
upon [his] right to reputation pursuant to Article 1, §§ 1 and 11
of the Pennsylvania Constitution. See Rule 1925(b) Statement,
8/7/19, at ¶ 6(a)-(c), (e); Appellant's brief at 19-24; see also
PA. CONST. Art. 1, §§ 1, 11. As noted above, Thorne reaffirmed
the axiomatic principle of Pennsylvania law that claims concerning
the legality of a defendant's sentence cannot be waived. See
Thorne, supra at 1197-98. However, this Court has historically
rejected attempts to style due process claims as pertaining to the
legality of a defendant's sentence. See, e.g., Commonwealth
v. Wallace, 533 A.2d 1051, 1053-54 (Pa. Super. 1987)
(collecting cases). Moreover, our Supreme Court held in
Commonwealth v. Muniz, 164 A.3d 1189, 1195 n.7 (Pa. 2017),
superseded by statute on separate grounds as recognized in
Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020), that a
defendant waived similar due process arguments under the
Pennsylvania Constitution by failing to raise them in the trial court.
Accordingly, we conclude that [Appellant Snyder’s] constitutional
claims predicated solely upon alleged due process violations are
waived. Id.; accord Thorne, supra at 1197 (noting that a
constitutional claim addressed at an alleged due process violation
did not implicate legality of a sentence).
Commonwealth v. Snyder, 292 A.3d 1106 (Pa. Super. 2023) (unpublished
memorandum, January 19, 2023).4 We employ the same rationale herein to
conclude that Appellant’s first two issues are subject to waiver, as they fail to
implicate the legality of his sentence.
In Appellant’s remaining constitutional challenge raised for the first time
on appeal, he posits that the Revised Subchapter H, Tier III registration and
reporting requirements inflict cruel punishment on him in contravention of the
Pennsylvania Constitution’s Article I, Section 13. Such a claim indisputably
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4 See Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions of this
Court filed after May 1, 2019, for their persuasive value).
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implicates the legality of one’s sentence and cannot be waived on the basis
that it was raised for the first time on appeal. Thorne, supra at 1196, 1198;
Snyder, supra. Furthermore, he contends this claim falls squarely under
the Pennsylvania Supreme Court’s decision in Torsilieri, which remanded for
a full evidentiary hearing to allow the parties to present scientific evidence
bearing on constitutional issues at bar. Brief of Appellant, at 7.
Because Appellant's constitutional challenge was presented for the first
time on appeal, there is no factual record before us. Therefore, consistent
with Thorne and its progeny, we remand this case for development of the
record with respect to Appellant’s claim that SORNA—Subchapter H
unconstitutionally inflicts cruel punishment. See Commonwealth v. Dove,
301 A.3d 427, 438-39 (Pa. Super. 2023) (remanding for factual development
of a claim, raised for first time on appeal, that SORNA--Subchapter H violates
federal and state constitutional proscriptions against cruel and unusual
punishment).5
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5 In remanding the case to allow development of the record, the Dove panel
reasoned:
Generally, an issue that is raised for the first time on appeal is
waived, and this Court cannot review the issue on appeal. See
Pa.R.A.P. 302(a) (stating, as a general rule, “[i]ssues not raised
in the trial court are waived and cannot be raised for the first time
on appeal”). Recently, our Supreme Court held that constitutional
challenges to SORNA – Subchapter H implicate the legality of a
sentence and cannot be waived on the basis that such claims were
raised for the first time on appeal. Thorne, 276 A.3d at 1198.
Because Appellant's constitutional challenges were presented for
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Judgment of sentence vacated, in part, only insofar as Appellant is
required to comply with the requirements of SORNA – Revised Subchapter H.
Case remanded for further development of Appellant's challenge to the
constitutionality of SORNA – Revised Subchapter H. Jurisdiction relinquished.
12/28/2023
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the first time on appeal, however, there is no factual record before
us. Therefore, in consonance with Thorne, supra, we remand
this case for further development of the record related to
Appellant's challenge to the constitutionality of SORNA –
Subchapter H.
Id. at 438–39.
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