Com. v. Galant, S. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SCOTT MELVIN GALANT :
:
Appellant : No. 1487 EDA 2020
Appeal from the Order Entered July 9, 2020
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0001573-2019
BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED AUGUST 3, 2021
Appellant Scott Melvin Galant appeals from the order1 denying his post-
sentence “Motion to Reconsider Sentence as to [Sexual Offender Registration
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1 As noted by the Commonwealth, there is an issue concerning whether the
trial court’s order constitutes an order denying a post-sentence motion under
Pa.R.Crim.P. 720, or a separate order denying a challenge of a sex offender
registration requirement pursuant to Commonwealth v. Lacombe, 234 A.3d
602 (Pa. 2020). See Commonwealth’s Brief at 4 n.2; see also Pa.R.Crim.P.
720(A)(1) & (B)(3) (requiring that a defendant file a post-sentence motion
within ten days of the judgment of sentence and that the trial court decide the
motion no later than 150 days); Lacombe, 234 A.3d at 617 (noting that our
Supreme Court “has not yet required that sexual offender registration statutes
be challenged through the PCRA or some other procedural mechanism”).
However, while this issue affects whether this appeal properly lies from
Appellant’s judgment of sentence as made final by the denial of a post-
sentence motion or from the order denying Appellant’s challenge to SORNA
II, it does not impact this Court’s jurisdiction over this appeal. See
Commonwealth v. Khalil, 806 A.2d 415, 421 (Pa. Super. 2020) (declining
to quash an appeal because the clerk of the court did not enter an appropriate
order denying post-sentence motions by operation of law). We will retain the
caption in this appeal as Appellant filed it. Cf. Commonwealth v. Torsilieri,
(Footnote Continued Next Page)
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and Notification Act2] registration.” Appellant argues that the trial court erred
in rejecting his claims that (1) Subchapter H violates his due process and
reputational rights by creating an irrebuttable presumption concerning his risk
of reoffending and (2) Subchapter H is punitive. The Commonwealth concedes
that Appellant is entitled to a remand for further consideration of his claims.
We vacate the order and remand for further proceedings.
The procedural background of this appeal is as follows. The
Commonwealth charged Appellant with committing numerous sex offenses
against a minor victim “on or about August 20, 2018.” Information, 4/17/19.
On January 8, 2020, Appellant entered a negotiated guilty plea to rape of a
child, aggravated indecent assault of a child, and indecent assault of a person
less than thirteen years of age.3,4 That same day, the trial court sentenced
Appellant to an aggregate term of fifteen to fifty years’ incarceration and
advised Appellant of Subchapter H’s lifetime registration requirements for the
commission of Tier III offenses.
On January 16, 2019, Appellant timely filed his motion to reconsider his
sentence in which he challenged the constitutionality of Subchapter H based
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232 A.3d 567, 572-74, 596 (Pa. 2020) (vacating, in part, an order denying
the defendant’s post-sentence motion nunc pro tunc challenging SORNA II
without referencing the judgment of sentence).
2 42 Pa.C.S. §§ 9799.11-9799.42 (hereinafter SORNA II or Subchapter H).
3 18 Pa.C.S. §§ 3121(c), 3125(b), and 3126(a)(7), respectively.
4 Before entering his plea, Appellant filed pre-trial motions, which included
constitutional challenges to SORNA II.
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on prior decisions by the court of common pleas which found Subchapter H to
be punitive. Appellant asserted that the trial court initially scheduled a hearing
for March 2020, but the court granted Appellant’s motion to continue a hearing
due to the COVID-19 pandemic. During the continuance, our Supreme Court
decided Torsilieri on June 16, 2020.
The trial court convened a hearing on July 9, 2020. The parties agreed
that Appellant’s motion was “a procedural motion just to preserve his right to
appeal the SORNA [II] registration requirement.” N.T., 7/9/20 at 2. At that
time, Appellant admitted into evidence exhibits from the prior court of
common pleas decisions, which included copies of affidavits concluding that
sex offenders did not pose a high risk of reoffending and that registration laws
fail to improve community safety. The parties presented no further evidence
or argument at the hearing, and the trial court denied Appellant’s motion
immediately following the hearing.
Appellant timely filed his notice of appeal on August 5, 2020, and both
Appellant and the trial court complied with Pa.R.A.P. 1925. In its opinion, the
trial court concluded that Subchapter H’s lifetime registration for a Tier III
offense was constitutional. The trial court discussed our Supreme Court’s
decisions in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), and
Commonwealth v. Butler, 226 A.3d 972 (Pa. 2020), but did not consider
Torsilieri. Trial Ct. Op., 11/10/2, at 4-5.
Appellant presents the following questions for review:
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1. Did the trial court err in finding that [Subchapter H] did not
violate [A]ppellant’s rights to due process of law because it
creates an irrebuttable presumption which infringes upon the
constitutional right to reputation?
2. Did the trial court err in finding that [Subchapter H] registration
and notification provisions are not punitive in nature?
Appellant’s Brief at 4.
Appellant summarizes his arguments as follows:
The scientific evidence presented by both . . . Appellant and the
Commonwealth is sufficient to establish a consensus in the
scientific community that sex offenders do not pose a high risk of
recidivism. On the contrary, the evidence establishes that sex
offenders pose a low risk of re-offense. As the Pennsylvania
Supreme Court noted previously, the existence of this
presumption impacts [a] defendant’s right to reputation, which is
a right specifically protected in the Pennsylvania Constitution. In
re: J.B., 107 A.3d 1 (Pa. 2014). As the presumption is not
universally true and there exists reasonable alternatives to
ascertain the presumed facts, the trial court erred in failing to find
SORNA [II] unconstitutional.
Weighing the Mendoza-Martinez[5] factors, based upon the
scientific evidence presented herein, it is clear that the majority
of the factors weigh in favor of SORNA [II] being punitive. The
punitive nature of SORNA violates the Due Process and Ex Post
Facto clauses of the United States and Pennsylvania Constitutions.
Appellant’s Brief at 20. As noted above, the Commonwealth concedes that “a
remand in this case is appropriate” consistent with Torsilieri.
Commonwealth’s Brief at 16.
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5 Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).
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Appellant’s constitutional issues raise questions of law. Accordingly, the
standard and scope of our review is de novo and plenary, respectively.
Torsilieri, 232 A.3d at 575.
In Torsilieri, our Supreme Court vacated a trial court’s order declaring
Subchapter H unconstitutional. Id. at 572. In that case, the defendant
challenged the validity of the statute’s presumption that all sex offenders were
dangerous and posed a high risk of reoffending. Id. at 573. The trial court
permitted Appellant to introduce three expert affidavits. Id. at 574. The
Commonwealth did not offer evidence to the contrary before the trial court,
but cited rebuttal evidence in the appeal. Id. at 574, 582-84.
Of relevance to this appeal, the Torsilieri Court stated that the
defendant posed “colorable constitutional challenges” to Subchapter H based
on the evidence presented to and relied on by the trial court. Id. at 584. The
Court continued:
Nevertheless, we are unable to conclude based upon the record
currently before this Court whether [the defendant] has
sufficiently undermined the validity of the legislative findings
supporting . . . Subchapter H’s registration and notification
provisions, especially in light of the contradictory scientific
evidence cited by the Commonwealth during this appeal which
may refute the [the defendant]’s experts. It is not the role of an
appellate court to determine the validity of the referenced studies
based on mere citations rather than allowing the opportunity for
the truths to develop through a hearing on the merits of the
evidence. Accordingly, a remand is appropriate to allow the
parties to address whether a consensus has developed to call into
question the relevant legislative policy decisions impacting
offenders’ constitutional rights.
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Id. at 585. Notably, the Torsilieri Court determined that a remand was
necessary to consider the defendant’s claim based on the irrebuttable
presumption doctrine and to inform further the trial court’s analysis of whether
Subchapter H was punitive. Id. at 587-88, 594 (observing that the
defendant’s scientific evidence “arguably influenced” the trial court’s analysis
of whether Subchapter H was punitive).
In Commonwealth v. Asher, 244 A.3d 27 (Pa. Super. 2020), this
Court affirmed the defendant’s judgment of sentence but vacated the trial
court’s order rejecting an irrebuttable presumption claim. The Asher Court
explained: “Here, although [the defendant] properly preserved his challenges
at sentencing and in post-sentence motions, there is no factual record.
Therefore, in accordance with Torsilieri, we vacate and remand for a hearing
at which the parties can present evidence for and against the relevant
legislative determinations discussed above.” Asher, 244 A.3d at 33.
Following our review, we agree with Appellant and the Commonwealth
that a remand is necessary pursuant to our Supreme Court’s decision in
Torsilieri and this Court’s decision Asher. As in Torsilieri, Appellant raised
a colorable constitutional challenge and presented some evidence attempting
to refute the legislative finding. See Torsilieri, 232 A.3d at 585. Like Asher,
the trial court denied relief without creating and considering a proper factual
record. See Asher, 244 A.3d at 33. Accordingly, as in Torsilieri and Asher,
this Court does not have the benefit of a fully developed factual record.
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For these reasons, we vacate the order denying Appellant’s motion and
remand for further proceeding “at which the parties can present evidence for
and against the relevant legislative determinations” consistent with Torsilieri
and Asher.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/3/2021
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