Com. v. Morgan, R. ( 2021 )

J-S03044-21
2021 PA Super 143COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA, : PENNSYLVANIA
:
Appellee :
:
v. :
:
RONALD SCOTT MORGAN, :
: No. 658 WDA 2020
Appellant
Appeal from the Judgment of Sentence Entered March 6, 2020
in the Court of Common Pleas of Butler County
Criminal Division at No(s): CP-10-CR-0000991-2011
BEFORE: DUBOW, J., MURRAY, J. and STRASSBURGER, J.*
OPINION BY DUBOW, J.: FILED: JULY 13, 2021
Appellant, Ronald Scott Morgan, appeals from the Judgment of Sentence
entered on March 6, 2020, wherein the sentencing court resentenced
Appellant to the same aggregate sentence as his original sentence. After
careful review, we affirm Appellant’s designation as a sexually violent predator
(“SVP”), vacate his judgment of sentence, and remand for resentencing.
In May 2013, a jury convicted Appellant of one count each of Possession
of a Controlled Substance, Possession of a Small Amount of Marijuana,
Statutory Sexual Assault, Aggravated Indecent Assault, Indecent Assault,
Endangering the Welfare of Children, and Corruption of Minors; two counts
each of Involuntary Deviate Sexual Intercourse (“IDSI”); and 104 counts each
of Sexual Abuse of Children (Photographing, Videotaping, Depicting on
Computer or Filming Sexual Acts) and Sexual Abuse of Children (Child
* Judge Strassburger did not participate in the consideration or decision of
this case.
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Pornography).1 The court sentenced Appellant to an aggregate term of 182
to 364 months of imprisonment.2 After a hearing, the court also designated
him an SVP and lifetime registrant under The Sexual Offender Registration
and Notification Act (“SORNA”).3 Appellant timely appealed, but this Court
denied relief. See Commonwealth v. Morgan, 135 A.3d 661 (Pa. Super.
2015) (unpublished memorandum).
On January 12, 2017, Appellant timely sought collateral relief under the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541-46, challenging the
legality of his sentence and the effective assistance of counsel. Following a
hearing, the PCRA court entered an order on May 21, 2018, partially granted
the petition and vacated Appellant’s sentence because the mandatory
1 35 P.S. §§ 780-113(a)(16) and (a)(31), 18 Pa.C.S. §§ 3122.1, 3125(a)(8),
3126(a)(8), 4304(a)(1), 6301(a)(1), 3123(a)(7), 6312(b), and 6312(d),
respectively.
2 Specifically, the court sentenced Appellant to the mandatory minimum
sentence of ten to twenty years of imprisonment for each count of IDSI, set
to run concurrently to each other; a concurrent term of one to two years of
imprisonment for Statutory Sexual Assault; a consecutive term of 36 to 72
months of imprisonment for Aggravated Indecent Assault; fourteen to twenty-
eight months of imprisonment for each count of Sexual Abuse of Children
(Photographing), set to run concurrently to each other and consecutively to
the sentences imposed at the first count of IDSI and Aggravated Indecent
Assault; a consecutive term of one to two years of imprisonment for
Endangering the Welfare of Children; a concurrent term of nine to eighteen
months of imprisonment for Corruption of Minors, and guilty without further
penalty at the remaining counts.
3 Act of Feb. 21, 2018, P.L. 27, No. 10 (Act 10); Act of June 12, 2018, P.L.
140, No. 29 (Act 29) (collectively, SORNA II). See also Act of Dec. 20, 2011,
P.L. 446, No. 111, as amended, 42 Pa.C.S. §§ 9799.10 to 9799.41 (SORNA
I).
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minimum sentences imposed at the two IDSI convictions were illegal in light
of Alleyne v. United States, 570 U.S. 99 (2013). The PCRA court denied
the petition in all other respects. Appellant timely appealed, but this Court
denied relief. See Commonwealth v. Morgan, 221 A.3d 1228 (Pa. Super.
2019) (unpublished memorandum).
On March 6, 2020, the court held a resentencing hearing and imposed
the same aggregate sentence of 182 to 364 months of imprisonment. 4
Appellant timely filed a Post-Sentence Motion, challenging the constitutionality
of his SVP designation, the discretionary aspects of his sentence, and seeking
credit for time served. As to his sentence, he argued the court erred by
imposing consecutive IDSI sentences and failing to consider his rehabilitative
needs, resulting in his receiving the same sentence that had been previously
vacated. The court granted the motion for time credit and otherwise denied
relief.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
Statement. The trial court issued a responsive Opinion, referring us in part to
its June 10, 2020 Opinion disposing of the Post-Sentence Motion.
4 Specifically, instead of imposing the prior mandatory minimum sentence of
ten to twenty years of imprisonment at each count of IDSI to run concurrent
to each other as in the original sentence, the court imposed consecutive
standard-range sentences of five to ten years of imprisonment at each count,
for a total aggregate sentence of ten to twenty years of imprisonment for the
two IDSI counts. The court reimposed the original sentences at the remaining
counts, resulting in the same aggregate sentence. The court did not disturb
Appellant’s SVP designation.
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Appellant raises the following issues on appeal:
1. [Whether] the trial court abuse[d] its discretion when it
resentenced Appellant to the same sentence that was
previously imposed following the PCRA court’s grant of
Ap[p]ellant’s relief on his illegal mandatory minimum sentence
claim in that the trial court’s new sentence merely continued to
impose the previously vacated minimum sentence, the trial
court failed to consider, as it must, all required sentencing
factors set forth in the Sentencing Code (specifically, 42
Pa.C.S. § 9721(b) and 42 Pa.C.S. § 9725), and the trial court
failed to order a new pre-sentence investigation report,
resulting in a sentence that was not individually tailored to the
Appellant, requiring another resentencing hearing[; and]
2. [Whether] the [SVP] designation as provided under [SORNA]
is unconstitutional because it violates Appellant’s fundamental
right to protect his reputation as secured by Article 1, Section
1 of the Pennsylvania Constitution[.]
Appellant’s Br. at 15 (lower court answers and unnecessary capitalization
omitted).
We first consider Appellant’s claim that his SVP designation violates his
right to reputation under the Pennsylvania constitution. We begin with a brief
background on SORNA and SVP designations. In Commonwealth v. Muniz,
164 A.3d 1189 (Pa. 2017) (plurality), our Supreme Court held that SORNA’s
sex offender registration requirements constituted punishment, and therefore
retroactive application of those requirements violated the constitutional
prohibition against ex post facto laws. Relying on Muniz, our Court held in
Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) (“Butler I”),
that the registration requirements applicable to SVPS pursuant to SORNA I
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constituted increased criminal punishment and that the procedure for
conducting SVP determinations did not comply with Alleyne.
[T]he lifetime registration, notification, and counseling
requirements (RNC requirements) applicable to SVPs pursuant
to 42 Pa.C.S. §§ 9799.15, 9799.16, 9799.26, 9799.27, and
9799.36 are increased criminal punishment such that the
procedure for conducting SVP determinations violates the
requirements of Apprendi v. New Jersey, 530 U.S. 466 (2000)
and Alleyne v. United States, 570 U.S. 99 (2013).3
______
3 In Apprendi and Alleyne, the Supreme Court of the
United States held any fact, which increases the statutory
maximum penalty (Apprendi), or mandatory minimum
sentence (Alleyne), must be submitted to a jury and proven
beyond a reasonable doubt.
Commonwealth v. Butler (“Butler II”), 226 A.3d 972, 976 (Pa. 2020)
(parallel citations omitted). Our Supreme Court reversed this Court’s decision
in Butler I, concluding that the “RNC requirements do not constitute criminal
punishment and therefore the procedure for designating individuals as SVPs
under Section 9799.24(e)(3) is not subject to the requirements of Apprendi
and Alleyne and remains constitutionally permissible.” Butler II, 226 A.3d
at 976.5
5 The issue of whether the SVP designation violates an individual’s right to
reputation under the Pennsylvania Constitution was raised in Butler I but was
not reached in Butler I or Butler II. Appellant incorrectly states in his brief
that, in Butler II, our Supreme Court remanded that issue to this Court for
review. See Appellant’s Br. at 50–51. In fact, our Supreme Court remanded
Butler II directly to the Butler County Court of Common Pleas.
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Prior to our Supreme Court’s decision in Butler II, and in response to
Muniz and Butler I, the General Assembly enacted Act 10, which split SORNA
into two different subchapters, Subchapter H and Subchapter I.
In response to Muniz and Butler I, the General Assembly
enacted Act 10, specifically declaring that “[i]t is the intention of
the General Assembly to address the Pennsylvania Supreme
Court’s decision in … Muniz… and the Pennsylvania Superior
Court’s decision in Butler [I].” 42 Pa.C.S. § 9799.11(4). 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 Muniz 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).
Appellant sought relief from his SVP designation in 2020. At that time,
he was no longer subject to the requirements of SORNA I. Rather, he was
subject to the registration requirements mandated by Subchapter I of SORNA
II because he committed his offenses prior to December 20, 2012. Our
Supreme Court held in Commonwealth v. Lacombe, 234 A.3d 602, 605–06
(Pa. 2020), that Subchapter I of SORNA II “is nonpunitive and does not violate
the constitutional prohibition against ex post facto laws.”
While the Lacombe Court found Subchapter I constitutional, it did not
address whether Subchapter I’s SVP designation violates the right to
reputation as provided in the Pennsylvania Constitution. Thus, as a matter of
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first impression, we now turn to that question. We begin with our standard of
review.
When an appellant challenges the constitutionality of a statute,
the appellant presents this Court with a question of law.
See Commonwealth v. Atwell, 785 A.2d 123, 125 (Pa. Super.
2001) (citation omitted). Our consideration of questions of law is
plenary. See id., 785 A.2d at 125 (citation omitted). A statute
is presumed to be constitutional and will not be declared
unconstitutional unless it clearly, palpably, and plainly violates the
constitution. See Commonwealth v. Etheredge, 794 A.2d 391,
396 (Pa. Super. 2002) (citations omitted). Thus, the party
challenging the constitutionality of a statute has a heavy burden
of persuasion. See id., 794 A.2d at 396 (citation omitted).
Commonwealth v. Manzano, 237 A.3d 1175, 1179–80 (Pa. Super. 2020)
(quoting Commonwealth v. Howe, 842 A.2d 436, 441 (Pa. Super. 2004)).
The Pennsylvania Constitution recognizes the right to reputation as a
fundamental interest.
[I]n Pennsylvania, reputation is an interest that is recognized and
protected by our highest state law: our Constitution. Sections 1
and 11 of Article I make explicit reference to “reputation,”
providing the basis for this Court to regard it as a fundamental
interest which cannot be abridged without compliance with
constitutional standards of due process and equal protection.
R. v. Commonwealth, Dep't of Pub. Welfare, 636 A.2d 142, 149 (Pa.
1994) (citation omitted). See also Torsilieri, 232 A.3d at 585 (“[U]nlike the
federal constitution, the Pennsylvania Constitution specifically protects the
right to reputation as a fundamental right in Article I, Section 1, which
provides: ‘All 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, acquiring, possessing and protecting property and
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reputation, and of pursuing their own happiness.’”). We apply a multi-part
test in analyzing the constitutionality of laws that infringe upon fundamental
rights, such as the right to reputation.
The constitutional analysis applied to the laws that impede upon
these inalienable rights is a means-end review, legally referred to
as a substantive due process analysis. Under that analysis, courts
must weigh the rights infringed upon by the law against the
interest sought to be achieved by it, and also scrutinize the
relationship between the law (the means) and that interest (the
end). Where laws infringe upon certain rights considered
fundamental, … courts apply a strict scrutiny test. Under that test,
a law may only be deemed constitutional if it is narrowly tailored
to a compelling state interest.
Nixon v. Commonwealth, 839 A.2d 277, 286–87 (Pa. 2003) (citations
omitted).
Appellant has a protected fundamental interest in his reputation, which
he argues will be harmed by his having to register as an SVP. Thus, we “focus
on the extent to which the [sex offender] information … is readily available
and/or accessible.” R., 636 A.2d at 149. Subchapter I of SORNA II details,
in pertinent part, the following RNC requirements.
In [Subchapter I of SORNA II], the General Assembly, inter alia,
eliminated a number of crimes that previously triggered
application of SORNA [I] and reduced the frequency with which an
offender must report in person to the Pennsylvania State Police
(PSP). With regard to Subchapter I, the General Assembly
declared its intent that the statute “shall not be considered as
punitive.” 42 Pa.C.S. § 9799.51(b)(2).
To achieve its dual goals of ensuring public safety without creating
another unconstitutionally punitive scheme, the General Assembly
made a number of material changes to the operation of SORNA
[II]. The provisions of Subchapter I most relevant to our present
analysis follow:
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• Subchapter I applies to those convicted of a sexually
violent offense after April 22, 1996, but before December
20, 2012. 42 Pa.C.S. § 9799.52(1), (2).
• Those convicted of one of the triggering offenses must
register either for a period of ten years or for life. 42 Pa.C.S.
§ 9799.55(a), (b). Those offenders designated as SVPs must
register for life. Id. § 9799.55(b)(3).
***
• Persons convicted of the following crimes, SVPs, and
offenders convicted of two or more of the ten-year reporting
crimes are subject to lifetime registration: rape, IDSI,
sexual assault, aggravated indecent assault, and incest with
a child under the age of twelve. 42 Pa.C.S. § 9799.55(b).
***
• A non-SVP must report in person once per year at an
approved facility to verify their residence and be
photographed. 42 Pa.C.S. §§ 9799.60(b), 9799.54(b). An
SVP must report in person four times per year.
Id. § 9799.60(a).
• All offenders must contact the PSP within three days of
any change to their registration information, including
changes to residence, employment, or education. However,
Subchapter I does not require that the offender must appear
in person to satisfy this obligation. 42 Pa.C.S. §
9799.56(a)(2).
• Generally, failure to comply with the registration
requirements results in a felony prosecution. 42 Pa.C.S.
§ 9799.60(e); 18 Pa.C.S. § 4915.2(b), (c).
• The subchapter also establishes a website to be operated
in conjunction with the statewide registry. The website
[publishes] the following information as to each offender:
(1) name and known aliases; (2) year of birth; (3) the
address, municipality, county, and zip code of any residence
at which the offender lives; (4) the location of any schools
attended by the offender; (5) the address of any
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employment location; (6) a photograph of the offender that
must be updated at least once per year; (7) a physical
description of the offender, including sex, height, weight,
eye color, hair color, and race; (8) any identifying marks,
including tattoos, scars, or birthmarks; (9) the license plate
number and a description for any vehicle owned or
registered to the offender; (10) a status report regarding
whether the offender is compliant with the terms of SORNA
[II]; (11) an indication of whether the offender’s victim was
a minor; (12) a description of the offense committed by the
offender; (13) the dates of the offense and conviction; and
(14) the location of the offender’s temporary shelter and
where the offender receives mail, if the offender is
homeless. 42 Pa.C.S. § 9799.63(c).
• If a member of the public so desires, the website will alert
that person by electronic notification if an offender moves in
or out of the geographic area designated by the person. 42
Pa.C.S. § 9799.63(b)(7).
• Finally, an SVP or lifetime reporter can petition a court to
be removed from the statewide registry. At the time of the
petition, the SVP must not have been convicted of any crime
punishable by one year or longer after being released from
prison or after registering for the first time, whichever is
later, for a period of twenty-five years. Also, the offender
must be reviewed by a member of the Sexual Offender
Assessment Board [(“SOAB”)]. The SVP or lifetime reporter
must demonstrate by clear and convincing evidence that he
or she no longer poses a risk, or a threat of risk, to the public
or any individual person. 42 Pa.C.S. § 9799.59(a).
Lacombe, 234 A.3d at 615–17.
Although Lacombe discussed Subchapter I of SORNA II in the context
of whether it constituted punishment, its findings regarding whether
Subchapter I’s requirements had historically been regarded as punishment are
instructive on Subchapter I’s reach and capacity to impact one’s reputation.
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Specifically, it found that the requirements of Subchapter I are akin to public
shaming. Lacombe, 234 A.3d at 623.
Similar to SORNA [I], Subchapter I directs the PSP “shall” operate
and maintain a publicly accessible internet website and upload a
plethora of information about each offender. 42 Pa.C.S.
§ 9799.63(b), (c). Subchapter I further directs the PSP to
“develop, implement and maintain a process which allows
members of the public to receive electronic notification when an
individual required to register under [Subchapter I] moves into or
out of a user-designated location.” Id. § 9799.63(b)(7).
Id.; see also Commonwealth v. Perez, 97 A.3d 747, 766 (Pa. Super. 2014)
(Donohue, J., concurring) (discussing SORNA I and noting that “[t]he
public internet website utilized by the [PSP] broadcasts worldwide, for an
extended period of time, the personal identification information of individuals
who have served their ‘sentences.’ This exposes registrants to ostracism and
harassment without any mechanism to prove rehabilitation—even through the
clearest proof”). Because the RNC requirements pursuant to Subchapter I are
so wide-reaching as to result in ostracization, we conclude that it infringes on
the right to reputation. However, our analysis does not end there.
Next, we must weigh the infringement of this right against the interest
sought to be achieved by the government. The Lacombe Court discussed the
stated purpose of Subchapter I as follows.
[T]he General Assembly declared that the purpose of Subchapter
I is to “[p]rotect the safety and general welfare of the people of
this Commonwealth by providing for registration, community
notification and access to information regarding sexually violent
predators and offenders who are about to be released from
custody and will live in or near their neighborhood.” 42 Pa.C.S.
§ 9799.51(b)(1). Such purpose is based on the General
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Assembly's finding that “sexually violent predators and offenders
pose a high risk of engaging in further offenses even after being
released from incarceration or commitments, and protection of the
public from this type of offender is a paramount government
interest.” Id. § 9799.51(a)(2).
Lacombe, 234 A.3d at 625.
Considering the relationship between the means and the end, an SVP is
defined by Subchapter I as follows.
[A] person who has been convicted of a sexually violent offense
and who is determined to be a sexually violent predator under
section 9799.58 (relating to assessments) due to a mental
abnormality or personality disorder that makes the person likely
to engage in predatory sexually violent offenses or who has ever
been determined by a court to have a mental abnormality or
personality disorder that makes the person likely to engage in
predatory sexually violent offenses under a former sexual offender
registration law of this Commonwealth.
42 Pa.C.S. § 9799.53. Section 9799.58, which details the procedure for
deeming an individual to be an SVP, provides in relevant part, as follows.
(a) Order for assessment.--After conviction but before sentencing,
a court shall order an individual convicted of an offense specified
in section 9799.55 (relating to registration) to be assessed by the
[SOAB]. The order for an assessment shall be sent to the
administrative officer of the [SOAB] within 10 days of the date of
conviction.
(b) Assessment.--Upon receipt from the court of an order for an
assessment, a member of the [SOAB] as designated by the
administrative officer of the [SOAB] shall conduct an assessment
of the individual to determine if the individual should be classified
as a[n SVP]. The [SOAB] shall establish standards for evaluations
and for evaluators conducting the assessments. An assessment
shall include, but not be limited to, an examination of the
following:
(1) Facts of the current offense, including:
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(i) Whether the offense involved multiple victims.
(ii) Whether the individual exceeded the means
necessary to achieve the offense.
(iii) The nature of the sexual contact with the victim.
(iv) Relationship of the individual to the victim.
(v) Age of the victim.
(vi) Whether the offense included a display of unusual
cruelty by the individual during the commission of the
crime.
(vii) The mental capacity of the victim.
(2) Prior offense history, including:
(i) The individual’s prior criminal record.
(ii) Whether the individual completed any prior
sentences.
(iii) Whether the individual participated in available
programs for sexual offenders.
(3) Characteristics of the individual, including:
(i) Age of the individual.
(ii) Use of illegal drugs by the individual.
(iii) A mental illness, mental disability or mental
abnormality.
(iv) Behavioral characteristics that contribute to the
individual’s conduct.
(4) Factors that are supported in a sexual offender
assessment field as criteria reasonably related to the risk of
reoffense.
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(c) Release of information.--All State, county and local agencies,
offices or entities in this Commonwealth, including juvenile
probation officers, shall cooperate by providing access to records
and information as requested by the [SOAB] in connection with
the court-ordered assessment and the assessment requested by
the Pennsylvania Board of Probation and Parole….
(d) Submission of report by [SOAB].--The [SOAB] shall have 90
days from the date of conviction of the individual to submit a
written report containing its assessment to the district attorney.
(d.1) Summary of offense.--The [SOAB] shall prepare a
description of the offense or offenses which trigger the application
of this subchapter to include, but not be limited to:
(1) A concise narrative of the offender’s conduct.
(2) Whether the victim was a minor.
(3) The manner of weapon or physical force used or
threatened.
(4) If the offense involved unauthorized entry into a room
or vehicle occupied by the victim.
(5) If the offense was part of a course or pattern of conduct
involving multiple incidents or victims.
(6) Previous instances in which the offender was determined
guilty of an offense subject to this subchapter or of a crime
of violence as defined in section 9714(g) (relating to
sentences for second and subsequent offenses).
(e) Hearing.--
(1) A hearing to determine whether the individual is a[n
SVP] shall be scheduled upon the praecipe filed by the
district attorney. The district attorney upon filing a praecipe
shall serve a copy of the same upon defense counsel
together with a copy of the report of the [SOAB].
(2) The individual and district attorney shall be given notice
of the hearing and an opportunity to be heard, the right to
call witnesses, the right to call expert witnesses and the
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right to cross-examine witnesses. In addition, the individual
shall have the right to counsel and to have a lawyer
appointed to represent the individual if he or she cannot
afford one. If the individual requests another expert
assessment, the individual shall provide a copy of the expert
assessment to the district attorney prior to the hearing.
(3) At the hearing prior to sentencing, the court shall
determine whether the Commonwealth has proved by clear
and convincing evidence that the individual is a[n SVP].
(4) A copy of the order containing the determination of the
court shall be immediately submitted to the individual, the
district attorney, the Pennsylvania Board of Probation and
Parole, the Department of Corrections, the [SOAB] and the
[PSP].
42 Pa.C.S. § 9799.58.
Although an SVP designation and the concomitant RNC requirements
infringe upon a defendant’s right to reputation, it is only after the above-
detailed assessment and hearing process that an individual may be subject to
that infringement. Upon review, we conclude that this procedure comports
with due process and that Subchapter I is narrowly tailored to its compelling
state purpose of protecting the public “from those who have been found to be
dangerously mentally ill.” Butler II, 226 A.3d at 992–93 (citation omitted).
Accordingly, we hold that SVP designations under Subchapter I of SORNA II
are constitutional and do not violate the right to reputation under
Pennsylvania’s constitution. Thus, Appellant is not entitled to relief on this
claim.
Next, Appellant challenges the discretionary aspects of his sentence. A
challenge to the discretionary aspects of sentencing is not automatically
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reviewable as a matter of right. Commonwealth v. Hunter, 768 A.2d 1136,
1144 (Pa. Super. 2001). Prior to reaching the merits of
a discretionary sentencing issue, we conduct the following analysis.
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence, see [Pa.R.Crim.P. 720]; (3) whether appellant's brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted).
Appellant has fulfilled the first three prongs. With respect to the fourth
prong, Appellant states in his Rule 2119(f) statement that the court essentially
continued to impose the illegal ten-year mandatory minimum sentence and
failed to consider the factors enumerated in 42 Pa.C.S. §§ 9721(b) and 9725
or order a new presentence investigation report. See Appellant’s Br. at 26–
29. Whether a substantial question exists is determined on a case-by-case
basis. Here, we conclude that Appellant has raised a substantial question.
See Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011)
(explaining that an allegation that the court imposed the sentence without
considering the requisite statutory factors or providing adequate reasons for
not ordering a pre-sentence report raises a substantial question).
An appellate court will not disturb the sentencing court’s judgment
absent a manifest abuse of discretion. In order to constitute an abuse
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of discretion, “a sentence must either exceed the statutory limits or be so
manifestly excessive as to constitute an abuse of discretion.”
Commonwealth v. Ahmad, 961 A.2d 884, 887 (Pa. Super. 2008). To
demonstrate that the sentencing court abused its discretion, “the appellant
must establish, by reference to the record, that the sentencing court ignored
or misapplied the law, exercised its judgment for reasons of partiality,
prejudice, bias or ill will, or arrived at a manifestly unreasonable
decision.” Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa. Super.
2003). “As long as the trial court’s reasons demonstrate that it weighed the
Sentencing Guidelines with the facts of the crime and the defendant’s
character in a meaningful fashion, the court’s sentence should not be
disturbed.” Id. at 1018–19.
Our Supreme Court “has determined that where the trial court is
informed by a pre-sentence report, it is presumed that the court is aware of
all appropriate sentencing factors and considerations, and that where the
court has been so informed, its discretion should not be
disturbed.” Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super.
2009) (citation omitted). However, when a defendant appears before a court
for resentencing, the sentencing judge should conduct the hearing as if for the
first time.
When a sentence is vacated and the case is remanded
to the sentencing court for resentencing, the
sentencing judge should start afresh.
Commonwealth v. Losch, 535 A.2d 115 (Pa. Super.
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1987). “Reimposing a judgment of sentence should
not be a mechanical exercise.” Id. at 122. “Given the
important nature of the interests involved, the judge
at the second sentencing hearing should reassess the
penalty to be imposed on the defendant—especially
where defense counsel comes forward with relevant
evidence which was not previously
available.” Id. Thus, [a defendant’s] conduct since
the prior sentencing hearing is relevant at
resentencing. Id. at 123. The sentencing judge must
take note of this new evidence and reevaluate
whether the jail term which [a defendant] received is
a just and appropriate punishment. Id.Commonwealth v. Serrano, 150 A.3d 470, 473 (Pa. Super. 2016) (parallel
citations and brackets in original omitted) (quoting Commonwealth v.
Jones, 640 A.2d 914, 919–20 (Pa. Super. 1994)).
At Appellant’s resentencing hearing, the sentencing court did not have
the benefit of an updated pre-sentence investigation report, nor did it have
any information pertaining to Appellant’s conduct after he began serving his
sentence in 2014. See N.T., 3/6/2020, at 8-9. In imposing the same
aggregate sentence, the sentencing court explained as follows:
Now, the reason for this sentence, [Appellant], is all the things I
noted in the original sentence from [2014], were noted on the
record at that time. There was a comprehensive sentencing
scheme that I worked out at that time taking into account the
mandatories that were involved, and those have been removed by
decisional law. The [c]ourt is going to sentence you basically at
count one and two[, the two counts of IDSI]. The other counts
get reaffirmed in their entirety to achieve the sentencing scheme
that I originally laid out. The sentences at counts one and two are
within the standard range of sentence. They are, however,
consecutive to each other. … Total sentence imposed is the same
as the original, one eighty-two minimum, three sixty-four
maximum months.
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N.T., 3/6/2020, at 12–13, 15.
At the original sentencing hearing, the court noted that it was familiar
with the case as the presiding judge at the jury trial and had considered the
sentencing guidelines, the pre-sentence report, the findings of the SOAB, and
the then-mandatory minimum sentences that the court was required to
impose for the IDSI convictions. N.T., 2/19/2014, at 53. Appellant asked the
court not to impose the mandatory minimum sentences, but the court noted
that it was bound by those mandatory minimum sentences and that failure to
impose them would result in this Court sending the case back. Id. at 45–46.
The court did, however, state that it was imposing them concurrently to avoid
giving Appellant a life sentence. See id. at 53. Thus, it is evident that the
court initially imposed the mandatory minimum sentences not because it
found them appropriate, but because it was required to impose them, and it
deliberately imposed the shortest possible sentence it could for those
convictions. In reimposing the same aggregate sentence for the IDSI
convictions, the trial court did not explain why it deemed that sentence
appropriate.
We are cognizant that, unlike Serrano, the same judge who presided
over Appellant’s trial and original sentence also imposed his new sentence.
Additionally, we recognize that Appellant’s new IDSI sentences are within the
standard range of the sentencing guidelines and do not violate Alleyne.
However, that does not absolve the court from the requirement to impose an
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individualized sentence. It is evident from the record that the sentencing
court did not “start afresh” but instead mechanically reimposed the same
aggregate sentence without explanation as to why such a sentence was
individualized to Appellant and without consideration of his conduct over the
preceding six years. Jones, 640 A.2d at 920. “This was not only an abuse of
the court’s discretion, but a complete failure to exercise that discretion.”
Serrano, 150 A.3d at 475.
Accordingly, we vacate Appellant’s judgment of sentence and remand
for resentencing. Upon remand, the sentencing court “should start afresh”
and “reassess the penalty to be imposed” upon Appellant. Jones, 640 A.2d
at 919-20.
SVP designation affirmed. Judgment of sentence vacated. Case
remanded for resentencing in accordance with the dictates of this Opinion.
Jurisdiction relinquished.
Judge Murray joins the opinion.
Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/13/2021
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