Com. v. Ward, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DAVID ELIJAH WARD :
:
Appellant : No. 1580 EDA 2020
Appeal from the PCRA Order Entered June 26, 2020
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0007977-2016
BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED AUGUST 9, 2021
Appellant David Elijah Ward appeals nunc pro tunc from the order
dismissing his timely first petition for relief under the Post Conviction Relief
Act1 (PCRA). Appellant argues that the PCRA court erred in concluding that it
lacked jurisdiction to review a constitutional challenge to revised Subchapter
H of the Sexual Offender Registration and Notification Act (SORNA II).2 He
also requests that we remand the matter to the PCRA court for further
development of the record. We vacate the PCRA court’s order and remand for
further proceedings consistent with this memorandum.
____________________________________________
1 42 Pa.C.S. §§ 9541-9546.
2 42 Pa.C.S. §§ 9799.51-9799.75.
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The underlying facts of this matter are well known to the parties. Briefly,
Appellant was convicted of two counts of indecent assault3 after he sexually
assaulted two women at a spa in July of 2016. See Commonwealth v.
Ward, 2018 WL 6191089, 109 EDA 2018 (Pa. Super. filed Nov. 28, 2018)
(unpublished mem.). On August 14, 2017, the trial court sentenced Appellant
to an aggregate term of four to twenty-three months’ incarceration. He was
also classified as a Tier I offender and ordered to register as a sex offender
for fifteen years.
Appellant subsequently filed a direct appeal, and this Court affirmed
Appellant’s judgment of sentence. See id. Appellant did not file a petition for
allowance of appeal with our Supreme Court.
Appellant filed a timely pro se PCRA petition on April 24, 2019. The
PCRA court appointed counsel, who filed an amended petition alleging that
both trial counsel and direct appeal counsel were ineffective. Following a
hearing, Appellant withdrew his ineffectiveness claims and the PCRA court
granted leave for Appellant to amend his petition. In his second amended
PCRA petition, Appellant challenged the constitutionality of both SORNA and
Act 29 of 2018.
On June 1, 2020, the PCRA court issued a Pa.R.Crim.P. 907 notice of
intent to dismiss Appellant’s petition. Therein, the PCRA court stated that
Appellant was ineligible for relief under the PCRA because he was no longer
____________________________________________
3 18 Pa.C.S. § 3126(a)(1).
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serving a sentence. See Rule 907 Notice at 2-3 (unpaginated). Appellant
filed a response in which he reiterated his constitutional claims and asserted
that the PCRA was his “only means of redress” for challenging his registration
requirements. See Resp. to Rule 907 Notice, 6/22/20, at 5 (unpaginated).
The PCRA court formally dismissed Appellant’s petition on June 26,
2020. On August 7, 2020, the PCRA court reinstated Appellant’s PCRA appeal
rights nunc pro tunc. Appellant subsequently filed a timely notice of appeal
and a court-ordered Pa.R.A.P. 1925(b) statement. The PCRA court issued a
Rule 1925(a) opinion addressing Appellant’s claims.
On appeal, Appellant raises the following issues:
1. Whether the [PCRA] court erred in dismissing Appellant’s
[PCRA] petition due to the fact that Appellant is no longer
serving a sentence of incarceration, probation or parole, when
Appellant is still subject to the registration requirements listed
in Act 29, as a result of his conviction in this case, which is
tantamount to a sentence of supervision?
2. Whether Appellant’s case should be remanded to the [PCRA]
court so that the court can review (1) whether Act 29 (SORNA
II) is unconstitutional as applied to Appellant because it
violates Appellant’s due process rights by creating an
irrebuttable presumption which infringes upon Appellant’s right
to reputation and (2) because its registration and notification
provisions are punitive in nature.
Appellant’s Brief at 4 (some formatting altered).
Initially, both Appellant and the Commonwealth agree that the PCRA
court had jurisdiction to review Appellant’s SORNA claims based on our
Supreme Court’s decision in Commonwealth v. Lacombe, 234 A.3d 602 (Pa.
2020). Appellant’s Brief at 13; Commonwealth’s Brief at 13. The parties also
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request that we remand the matter to the PCRA court for further development
of the record, consistent with Commonwealth v. Torsilieri, 232 A.3d 567(Pa. 2020). See Appellant’s Brief at 18; Commonwealth’s Brief at 15-16.
As noted above, the PCRA court concluded that it lacked jurisdiction to
review Appellant’s SORNA claim because he was no longer serving a sentence.
PCRA Ct. Op., 9/30/20, at 4 (unpaginated). However, while Appellant’s appeal
was pending, our Supreme Court held that petitioners may challenge the
application of a sexual offender registration statute outside the framework of
the PCRA. Lacombe, 234 A.3d at 618. In reaching that conclusion, the
Lacombe Court explained:
This Court has not yet required that sexual offender registration
statutes be challenged through the PCRA or some other procedural
mechanism. Indeed, we have consistently decided cases
regarding sexual offender registration statutes that were
challenged via different types of filings. Our approach in this
regard takes into account the fact that frequent changes to sexual
offender registration statutes, along with more onerous
requirements and retroactive application, complicate registrants’
ability to challenge new requirements imposed years after their
sentences become final.
This is especially so under the PCRA as many registrants . . . would
be ineligible for relief on timeliness grounds. Other registrants
may be ineligible because their sentence has expired while their
registration requirements continue. Both situations arise from the
fact that the registration period does not begin until registrants
are released from prison, which may be well after their sentence
has become final or may signal the completion of their sentence.
Accordingly, we decline to find the PCRA, or any other procedural
mechanism, is the exclusive method for challenging sexual
offender registration statutes . . . .
Id. at 617-18 (citations omitted).
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Additionally, in Torsilieri, our Supreme Court vacated an order
declaring Subchapter H unconstitutional and remanded the matter to the trial
court for further development of the record. Torsilieri, 232 A.3d at 596. The
Torsilieri Court explained that, although the petitioner preserved
constitutional claims before the trial court, the Court was unable to review the
merits of those claims on the existing record. Id. Therefore, the Court
concluded that remand was appropriate to “provide both parties an
opportunity to develop arguments and present additional evidence and to
allow the trial court to weigh that evidence in determining whether [the
petitioner] has refuted the relevant legislative findings supporting the
challenged registration and notification provisions of Revised Subchapter H.”
Id.
Here, we are constrained to agree with the parties that the PCRA court
had jurisdiction to review Appellant’s SORNA claims outside the framework of
the PCRA. See Lacombe, 234 A.3d at 618. Further, the record reflects that
Appellant preserved his Subchapter H claim before the PCRA court. However,
because the PCRA court did not conduct a hearing, there is no factual record
on which we can evaluate Appellant’s Subchapter H claims. Therefore, we
vacate Appellant’s sentence and remand for further proceedings in accordance
with Torsilieri. See Torsilieri, 232 A.3d at 596; see also Commonwealth
v. Asher, 244 A.3d 27, 32 (Pa. Super. 2021) (concluding that remand was
necessary based on Torsilieri because the defendant raised an irrebuttable
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presumption claim before the trial court, but the court declined to hold a
hearing).
Accordingly, we vacate the order dismissing Appellant’s petition and
remand this matter for the PCRA court to conduct a hearing on the merits of
Appellant’s claim.
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2021
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