Com. v. Boyd, T.

J-S37040-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TONY BOYD JR. :
:
Appellant : No. 1007 EDA 2021
Appeal from the Judgment of Sentence Entered June 23, 2020
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0005725-2018
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 18, 2022
Appellant, Tony Boyd, Jr., appeals nunc pro tunc from the judgment of
sentence entered in the Court of Common Pleas of Montgomery County after
he pled guilty to one count of Rape, Forcible Compulsion1 and one count of
Unlawful Contact with a Minor.2 Sentenced to four and one-half years to nine
years’ imprisonment, followed by three years’ probation, Appellant argues on
appeal that the imposition of lifetime reporting requirements pursuant to his
Tier III sex offender categorization under Pennsylvania’s Sexual Offender
Registration and Notification Act, 42 Pa.C.S.A. §§ 9799.10-9799.42,
(hereinafter SORNA or Subchapter H) violates his due process rights and is
unconstitutionally punitive. Finding Appellant’s claims waived, we affirm.
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 3121.
2 18 Pa.C.S.A. § 6318.
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The procedural background of this appeal is as follows: On December
18, 2019, Appellant pled guilty to the above-cited charges filed on accusations
that he had raped an 11-year old boy by forcible compulsion on August 6,
2018 and on August 7, 2018. He was sentenced on June 23, 2020, at which
time he signed and affirmed on the record the sexual offender’s addendum to
the guilty plea colloquy acknowledging that by pleading guilty he would be
classified as a tier III sex offender under SORNA.
At sentencing, counsel for Appellant stated, “I’m objecting to the SVP
lifetime registration. I know the court will impose it.” N.T. at 15. After
receiving clarification that Appellant was not declared a sexually violent
predator but was nonetheless subject to lifetime registration, counsel
reiterated that “in terms of lifetime registration under SORNA, we are making
an objection.” N.T. at 16. After sentencing, Appellant filed neither a post-
sentence motion nor a timely appeal.
On January 18, 2021, Appellant filed a timely counseled petition under
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, which
alleged ineffective assistance of counsel in failing to file a timely notice of
appeal and sought reinstatement of direct appeal rights nunc pro tunc.
Without objection by the Commonwealth, the PCRA court granted Appellant’s
PCRA petition and reinstated his right to file an appeal nunc pro tunc with this
Court thirty days from the date of the order. See Order, 4/14/21.
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On April 28, 2021, Appellant filed a timely counseled notice of appeal.
On May 6, 2021, the trial court ordered Appellant to submit a concise
statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied with the court’s order by filing his Rule 1925(b) statement.
On June 22, 2021 the trial court filed a responsive Rule 1925(a) opinion.
In Appellant’s brief, he asserts for the first time in his case that revised
Subchapter H of the Pennsylvania Sentencing Code violates the United States
and Pennsylvania Constitutions. Specifically, he maintains that application of
the lifetime registration of SORNA, Subchapter H, 42 Pa.C.S. 9799.10–
9799.42, violates due process by creating an irrebuttable presumption that he
poses a high risk of recidivism thereby infringing on his right to reputation
under the Pennsylvania Constitution with no meaningful opportunity to
challenge the presumption of dangerousness. He also argues that the
presumption-based lifetime registration is punitive and thus extends his
sentence beyond the statutory maximum for his offense and in violation of
Alleyne v. United States, 570 U.S. 99, 103, 122 S.Ct. 2151 (2013) (holding
“[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that
must be submitted to a jury and found beyond a reasonable doubt.”). See
Appellant’s brief, at 3.
“[T]he constitutionality of a statute presents a pure question of law.
Therefore, our standard of review is de novo and scope of review is plenary.”
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Commonwealth v. Wade, 33 A.3d 108, 115-16 (Pa. Super. 2011) (citation
omitted).
In addressing constitutional challenges to a statute, we remain mindful
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. 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.
Commonwealth v. Torsilieri, 232 A.3d 567, 575 (Pa. 2020) (citations
and internal quotation marks omitted).3
Before we may conduct merits review of Appellant’s claims, we address
whether he has preserved them for appeal. As noted, supra, at Appellant’s
June 23, 2020 sentencing hearing conducted before the Honorable Todd D.
Eisenberg, defense counsel stated summarily and nonspecifically that
Appellant was objecting to “lifetime registration under SORNA,” without
articulating the legal grounds—constitutional or otherwise—or supplying any
facts or evidence to support the objection. N.T. 6/23/20 at 15-16. She cited
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3 In Torsilieri, the Pennsylvania Supreme Court addressed the
constitutionality of Revised Subchapter H of SORNA, which applies to
individuals who commit an offense after December 20, 2012. Since Appellant
committed his offenses after that date, his registration is premised upon
Subchapter H.
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no caselaw, secondary source, or scientific treatise while offering this generic
objection, nor did she request a hearing on the objection or file a post-
sentence motion delineating the objection for the trial court’s review.4 Judge
Eisenberg confirms in his Pa.R.A.P. 1925(a) opinion that defense counsel failed
to assert on the record “her reasoning or evidence for this objection.” Trial
Court Opinion, 6/22/21, at 4.
This Court has held that defendants waive for appellate review lifetime
registration challenges they failed to articulate before the trial court. In
Commonwealth v. Snyder, 251 A.3d 782 (Pa.Super. 2021), the defendant
asserted on appeal that lifetime registration for non-SVP offenders under
Subchapter H both violated due process rights under the Pennsylvania
Constitution’s reputation clause and constituted punishment based upon a fact
not submitted to the jury and found beyond a reasonable doubt in violation of
Alleyne. The defendant, however, did not raise these claims before the trial
court. Id. at 794.
On appeal, we first recognized that “constitutional issues, including
sentencing issues based upon the constitution, are waived if they are not
properly raised in the trial court.” Id. (citing Commonwealth v. Howe, 842
A.2d 436, 441 (Pa.Super. 2004)). On this point, our decision relied on recent
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4 The trial court correctly observes that Appellant’s PCRA petition sought only
reinstatement of direct appeal rights and, thus, forewent the option of
requesting reinstatement of post-sentence rights, as well.
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precedent in which this Court held “a defendant waived numerous
constitutional arguments concerning whether Subchapter H creates ‘an
irrefutable and irrebuttable presumption against the offender’ by failing to
raise the claims in the trial court.” Id. (quoting Commonwealth v. Reslink,
257 A.3d 21 (Pa.Super. 2020) (holding defendant waived claim that Revised
Subchapter H was based on an unconstitutional irrebuttable presumption by
failing to raise it at sentencing or in a post-sentence motion)).
Snyder also acknowledged that the defendant raised an additional claim
sounding in legality of sentence where he asserted that Subchapter H was
punitive under Alleyne and Apprendi. We noted, further, the general
proposition that claims arising under Alleyne and Apprendi cannot be waived
on appeal. Snyder, supra at 795.
Notwithstanding, Snyder held that our decision in Reslink, which
applied waiver to a similar legality of sentence claim that Subchapter H
constituted cruel and unusual punishment and violated Apprendi, compelled
finding Snyder’s claim waived as well, for the presumption of recidivism
remains central to the problem identified by such claims and thus distinguishes
them from typical legality claims. Snyder, supra at 795 n. 11.5 Accordingly,
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5 That is, Subchapter H’s presumption of recidivism is the fact not submitted
to a jury under the Apprendi/Alleyne construct. Snyder therefore
concludes, “We read Reslink for the limited proposition that constitutional
claims for relief directed at Pennsylvania’s sexual offender registration regime
that concern the presumption of recidivism discussed in Torsilieri are subject
(Footnote Continued Next Page)
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Snyder concluded that “Reslink has created an exception to the typical rules
governing Rule 302(a) waiver and claims aimed at allegedly illegal sentences.
Thus, no relief is due on these waived issues.” Snyder, supra at 795.
In the case sub judice, Appellant’s legality of sentence claims are
effectively identical to those found waived in Snyder and Reslink. As
Appellant elected, through counsel, not to present his claims for the trial
court’s consideration either at the sentencing hearing or in a post-sentence
motion, we follow the rationale of Snyder and Reslink and find them waived
on appeal. 6
Judgment of sentence affirmed.
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to waiver under Rule 302(a), regardless of whether that claim sounds in
legality of sentence.
6Compare Commonwealth v. Elgaafary, 1178 EDA 2020, unpublished
memorandum decision (Pa.Super. filed October 12, 2021). See Pa.R.A.P.
126(b) (unpublished non-precedential decisions of the Superior Court filed
after May 1, 2019, may be cited for their persuasive value). In Elgaafary,
this Court declined to find waiver under Snyder and Reslink for Elgaafary’s
failure to raise specifically a Torsilieri unconstitutional irrebuttable
presumption argument with the trial court where: 1) Elgaafary had filed a
post sentence motion raising a “colorable constitutional challenge” stating
SORNA’s “internet notification provisions infringe[d] on [his] right to
reputation without due process, and SORNA create[d] an irrebuttable
presumption that all sex offenders pose a high risk of reoffending”; 2) he had
requested a hearing on his motion; and, 3) Torsilieri had not yet been
decided).
In contrast, in the present matter, defense counsel’s bare statement of
“objection to lifetime registration under SORNA” articulated no colorable
challenge thereto and occurred one week after Torsilieri was decided.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/18/2022
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