Com. v. Smith, III, L.

J-A01050-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LEE A. SMITH, III :
:
Appellant : No. 765 MDA 2021
Appeal from the Order Entered May 19, 2021
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003430-1995
BEFORE: LAZARUS, J., NICHOLS, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: MARCH 1, 2022
Appellant, Lee A. Smith, III, appeals from the order entered in the
Dauphin County Court of Common Pleas, which denied his “Motion to Bar the
Applicability of Sex Offender Registration And/Or Petition for Writ of Habeas
Corpus.” We affirm.
This Court has previously set forth the relevant facts and procedural
history of this case as follows:
In 1996, a jury convicted [Appellant] of rape by forcible
compulsion,[1] and the court sentenced him [on January 10,
1997,] to serve 7 to 20 years’ incarceration. We affirmed
the judgment of sentence, and the Pennsylvania Supreme
Court denied [Appellant’s] petition for allowance of appeal
in 1998. [Appellant] thereafter filed two [petitions under
the Post Conviction Relief Act (“PCRA”)2] and a petition to
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1 The record indicates that the offense took place on September 15, 1995.
2 42 Pa.C.S.A. §§ 9541-9546.
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remove or modify parole, none of which resulted in relief.
…
[Appellant] filed a “Motion to Bar the Applicability of Sex
Offender Registration And/or Petition for Writ of Habeas
Corpus” on January 21, 2020. In the Motion, [Appellant]
claimed that the Pennsylvania State Police [(“PSP”)] was
requiring him to register for his lifetime as a sex offender
under the Sex Offender Registration and Notification Act
(“SORNA”), or face felony charges. He argued that because
SORNA [I] did not take effect until 2012, after he had
committed the acts for which he was sentenced, the
registration requirement constitutes ex post facto
punishment per Commonwealth v. Muniz, [640 Pa. 699,
164 A.3d 1189 (2017) (plurality), cert. denied, ___ U.S.
___, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018)]. [Appellant]
also claimed the requirement violated his due process
rights.
After receiving a response from the Commonwealth, the trial
court treated [Appellant’s] Motion as a PCRA petition, found
his Petition to be untimely, and issued notice of its intention
to dismiss the Petition after 20 days. See Pa.R.Crim.P. 907.
[Appellant] filed a response, arguing the court should not
have treated his Motion as a PCRA Petition, because the
PCRA only subsumes the types of collateral actions for which
the PCRA may provide relief. The court dismissed the
petition, and [Appellant] appealed.
Commonwealth v. Smith, 932 MDA 2020, unpublished memorandum at 1-
3 (Pa.Super. Apr. 1, 2021). On appeal, this Court vacated and remanded for
further proceedings, holding that Appellant’s challenge to his sex offender
registration requirements was not subject to the PCRA’s time-bar under
Commonwealth v. Lacombe, ___ Pa. ___, 234 A.3d 602 (2020) (holding
that registrants are not restricted to use PCRA as exclusive means for
challenging their registration requirements). See Smith, supra.
Upon remand, the trial court issued an order directing Appellant to serve
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a copy of his motion on the PSP’s sex offender registration section. Appellant
complied on April 8, 2021. The court subsequently issued a rule to show cause
on the District Attorney’s office and the PSP, asking why Appellant’s motion
should not be granted. On May 6, 2021, the PSP filed a response. The court
denied Appellant’s requested relief on May 19, 2021. Appellant timely filed a
notice of appeal on June 15, 2021. On June 28, 2021, the court ordered
Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal, and Appellant timely complied.
Appellant raises the following issue for our review:
Can [the PSP] force [Appellant] to “register” for the rest of
his life for an offense which occurred many years before
SORNA was enacted without [Appellant] having an
opportunity to challenge the legality of the PSP’s application
of the SORNA registration requirements at a hearing?
(Appellant’s Brief at 6).
Appellant argues that his lifetime sex offender registration requirements
violate both the United States and Pennsylvania constitutions. Appellant
asserts that the court denied him due process by failing to require that each
fact necessary to support the imposition of his punishment be submitted to
the fact-finder and proven beyond a reasonable doubt under Apprendi v.
New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000) (holding
that any facts, other than fact of prior conviction that subject defendant to
additional penalty beyond statutory maximum must be submitted to jury and
be proven beyond reasonable doubt), and Alleyne v. United States, 570
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U.S. 99, 133 S.Ct. 2151, 186 L.Ed. 2d 314 (2013) (holding that any fact that
increases mandatory minimum sentence for crime is fact that must be
submitted to jury and found beyond reasonable doubt). Appellant emphasizes
that SORNA I did not take effect until December 20, 2012, approximately 13
years after Appellant was sentenced. Appellant highlights the Supreme
Court’s decision in Muniz, that retroactive application of SORNA I to offenders
who committed their offenses before SORNA I’s effective date violates ex post
facto principles. Appellant maintains that “[p]ermitting the PSP to apply the
irrebuttable presumption of SORNA in [Appellant’s] case…violates the tenets
of Apprendi/Alleyne [where] no judge [or] jury has established [that
Appellant is at] a particular risk of recidivating.” (Appellant’s Brief at 12).
Appellant concludes that this Court should vacate the order denying relief and
remand for an evidentiary hearing, at which the parties can present evidence
for and against the relevant legislative determinations at issue. We disagree.
Our review of this case implicates the following legal principles:
When an appellant challenges the constitutionality of a
statute, the appellant presents this Court with a question of
law. Our consideration of questions of law is plenary. A
statute is presumed to be constitutional and will not be
declared unconstitutional unless it clearly, palpably, and
plainly violates the constitution. Thus, the party challenging
the constitutionality of a statute has a heavy burden of
persuasion.
Commonwealth v. Howe, 842 A.2d 436, 441 (Pa.Super. 2004) (internal
citations omitted).
Following Muniz, supra and Commonwealth v. Butler, 173 A.3d
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1212 (Pa.Super. 2017) (“Butler I”), rev’d, ___ Pa. ___, 226 A.3d 972 (2020)
(“Butler II”),3 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 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; or to those who
were required to register with the PSP under a former sexual offender
registration law of this Commonwealth on or after April 22, 1996, but
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3 In Butler I, this Court held that the provision of SORNA I requiring a court
to designate a defendant a sexually violent predator (“SVP”) by clear and
convincing evidence violates the federal and state constitutions because it
increases a defendant’s criminal penalty without the fact-finder making
necessary factual findings beyond a reasonable doubt. See Butler I, supra.
However, the Pennsylvania Supreme Court reversed Butler I. See Butler
II, supra (holding SVPs are different from non-SVP SORNA registrants at
issue in Muniz due to heightened public safety concerns based on
determination that SVPs have mental abnormality or personality disorder that
makes individual likely to engage in predatory sexually violent offenses;
procedure for designating individuals as SVPs is not subject to requirements
of Apprendi and Alleyne and remains constitutionally permissible).
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before December 20, 2012, whose period of registration has not
expired. See 42 Pa.C.S.A. § 9799.52. 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.
In Lacombe, supra, our Supreme Court held that Subchapter I of
SORNA II is nonpunitive and does not violate the constitutional prohibition
against ex post facto laws. See id. at ___, 234 A.3d at 626-627. Further,
Lacombe applies equally to individuals who were convicted of an offense prior
to the enactment of any sex offense registration scheme. See T.S. v.
Pennsylvania State Police, ___ Pa. ___, 241 A.3d 1091 (2020) (per curiam)
(reversing Commonwealth Court’s decision to grant relief to individual who
committed sex offenses before sex offender registration laws were enacted,
in light of Lacombe).
Instantly, the trial court evaluated Appellant’s claim as follows:
Since [Appellant’s] commission date was September 15,
1995, he is not captured by the first clause of § 9799.52.
However, [Appellant] is clearly captured by the second
clause of § 9799.52. [Appellant] was required to register
under Megan’s Law III and began doing so in 2009.
[Appellant’s] period of registration had not expired on the
effective date of Subchapter I. Under Subchapter I, an
individual convicted of Rape is subject to lifetime
registration. 42 Pa.C.S.A. § 9799.55(b)(2)(i)(B).
Therefore, on the face of Subchapter I, [Appellant] is
required to register for the remainder of his life.
At the time [Appellant] filed his Motion in [t]his [c]ourt, the
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only viable question concerning his obligations to comply
with Subchapter I within [SORNA II] was whether the
retroactive registration provisions of Subchapter I would
suffer from the same constitutional infirmities found in
Muniz. That question has now been answered.
In Lacombe, supra the Pennsylvania Supreme Court held
that “Subchapter I does not constitute criminal punishment,
and the ex post facto claims forwarded by appellees
necessarily fail.” Id. at [___, 234 A.3d at] 626-627. The
Court’s analysis found that Subchapter I effected significant
changes from the original version of SORNA and is “narrowly
tailored to its nonpunitive purpose of protecting the public.”
Id. at [___, 234 A.3d at] 626.
(Trial Court Opinion, 5/17/21, at 3-4). We agree with the trial court’s
rationale.
Although Appellant cites Commonwealth v. Torsilieri, ___ Pa. ___,
232 A.3d 567 (2020), Commonwealth v. Mickley, 240 A.3d 957 (Pa.Super.
2020), and Commonwealth v. Asher, 244 A.3d 27 (Pa.Super. 2020), in
support of his request for an evidentiary hearing, each of those cases dealt
with registration requirements under Revised Subchapter H. See Torsilieri,
supra (addressing constitutionality of various provisions of Revised
Subchapter H; acknowledging that, based on evidence defendant had
presented in trial court, he posed colorable constitutional challenges to
Revised Subchapter H’s registration and notification provisions; remanding to
allow parties to address whether consensus has developed to call into question
relevant legislative policy decisions impacting sex offenders’ constitutional
rights); Mickley, supra (considering motion to bar registration requirements
where defendant was required to register under Revised Subchapter H, as he
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committed his offenses after December 20, 2012; at sentencing, defendant
had raised and preserved issue of whether Revised Subchapter H was punitive
and whether it violated due process by creating irrebuttable presumption that
sex offender is likely to reoffend; vacating and remanding for hearing at which
parties could present evidence for and against relevant legislative
determinations under Torsilieri; expressly noting that constitutional
challenges at issue pertained to Subchapter H, and not Subchapter I, so
Supreme Court’s decision in Lacombe was not applicable). See also Asher,
supra (considering challenge to constitutionality of registration requirements
under Revised Subchapter H, where defendant committed his offenses in
2016; because there was no factual record developed, and relying on
Torsilieri and Mickley, vacating and remanding for hearing at which parties
could present evidence for and against relevant legislative determinations).
Because the cases on which Appellant relies dealt with the
constitutionality of Revised Subchapter H, they are distinguishable. As the
trial court noted, Appellant is subject to reporting under Subchapter I. With
respect to Appellant’s ex post facto concerns, the Supreme court has already
decided that Subchapter I is not constitutionally infirm. See Lacombe,
supra. Notably, Appellant does not even mention Lacombe on appeal or
dispute that he is subject to reporting under Subchapter I. Additionally, with
respect to Appellant’s claim that Subchapter I violates due process under
Apprendi and Alleyne, the Lacombe Court noted that such a claim is
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predicated on an argument that Subchapter I is punitive; based on the Court’s
holding that Subchapter I is nonpunitive, such a due process challenge fails.
See Lacombe, supra at ___, 234 A.3d at 608 n.5.
Regarding Appellant’s claims of due process violations based on an
unconstitutional irrebuttable presumption, this Court has recently rejected a
similar argument. See Commonwealth v. Spears, No. 2424 & 2439 EDA
2019 (Pa.Super. Apr. 14, 2021) (unpublished memorandum)4 (explaining that
Subchapter I does not signal dangerousness of any particular offender; it
merely provides that adult sex offenders, as group, have high risk of
recidivism; hearing on adult offender’s individual dangerousness or likelihood
to reoffend is irrelevant to universal truth of group as whole; therefore,
irrebuttable presumption doctrine does not apply). Based upon the foregoing,
we agree with the trial court that an evidentiary hearing was not warranted
here. Therefore, Appellant’s issue on appeal merits no relief. Accordingly, we
affirm.
Order affirmed.
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4See Pa.R.A.P. 126(b) (explaining that this Court can rely on unpublished
decisions of Superior Court filed after May 1, 2019 for persuasive value).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/01/2022
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