Com. v. Bitner, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THOMAS LEWIS BITNER
Appellant No. 1691 WDA 2015
Appeal from the Judgment of Sentence October 13, 2015
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000864-2015
BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED APRIL 4, 2016
Appellant Thomas Lewis Bitner appeals from the October 13, 2015
judgment of sentence, entered in the Fayette County Court of Common
Pleas, which included a requirement that he register pursuant to the Sexual
Offenders Registration and Notification Act (“SORNA”). We affirm.
On July 15, 2015, Appellant pled guilty to indecent assault without
consent, two counts of terroristic threats, two counts of harassment, and
one count of criminal mischief.1
On October 13, 2015, the trial court sentenced Appellant to two years’
probation for the indecent assault conviction, with no further penalty for the
remaining convictions. The trial court’s sentencing order informed Appellant
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1
18 Pa.C.S. §§ 3126(a)(1), 2706(a)(1), 2709(a)(1), and 3304(a)(5),
respectively.
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of his duty to register pursuant to SORNA, and notified Appellant he was
required to register for a period of 15 years. Order, 10/13/2015, at ¶¶ 8-9.2
That same day, the trial court found that Appellant was not a sexually
violent predator.
Appellant filed a post-sentence motion for modification of sentence,
which the trial court denied on October 19, 2015. Appellant filed a timely
notice of appeal. Both Appellant and the trial court complied with
Pennsylvania Rule of Appellate Procedure 1925.
Appellant raises the following issues on appeal:
[1.] Is it unconstitutional to require an appellant to
register for twenty five years when said registration
requirement exceeds the statutory maximum penalty for
Appellant’s offense?
[2.] Is the Adam Walsh statute unconstitutional in
requiring the an [sic] appellant to register for twenty five
(25) years?
[3.] Is the Adam Walsh statute unconstitutional in
requirement the an [sic] appellant to register for twenty
five (25) years when Appellant was assessed and deemed
not to be a sexual predator?
Appellant’s brief at 7.3
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2
Indecent assault is a Tier I offense under SORNA. 42 Pa.C.S. §
9799.14(b)(6). Tier I offenses require a 15-year registration period. 42
Pa.C.S. § 9799.15(a)(1).
3
Appellant’s brief states Appellant was required to register for twenty-five
years. However, pursuant to SORNA and the trial court’s sentencing order,
Appellant is required to register for fifteen years. Further, although
Appellant’s Brief includes a table of contents with associated page numbers,
(Footnote Continued Next Page)
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Appellant’s issues challenge the constitutionality of SORNA.4 His first
issue argues that the period of registration is unconstitutional because it
exceeded the length of his sentence and exceeded the maximum sentence
that he could have received. Appellant’s Brief at 10. He maintains that, if
the SORNA requirements are not criminal penalties, the requirements should
not be imposed at the time of sentencing. Id. He notes that the restrictions
can result in criminal penalties if a defendant fails to comply with the
registration requirements. Id.
In his argument supporting his second and third issues, which are
argued together, Appellant maintains the requirements for registration and
the classification of offenses into tiers “are not in line with what is required
to accomplish rehabilitation.” Appellant’s Brief at 12. He again argues the
registration requirement exceeds the maximum statutory sentence allowed.
Id. He maintains the registration requirement constitutes cruel and unusual
punishment. Id.
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(Footnote Continued)
it does not include page numbers on the individual pages until page 9. This
Court will provide the page numbers, where needed.
4
SORNA is also referred to as Megan’s Law IV, Act 111 of 2011, or the
Adam Walsh Act. Commonwealth v. Gainnantonio, 114 A.3d 429, 432
n.1 (Pa.Super.2015). The federal statute addressing registration of sexual
offenders also is called the Adam Walsh Act. Commonwealth v. Noonan,
102 A.3d 1254, 1258 n.1 (Pa.Super.2014) (noting “the federal statute
which, in part, spurred some of the amendments giving rise to the current
statute is also titled the Adam Walsh Child Protection and Safety Act of
2006”).
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As explained in Commonwealth v. McDonough:
Section 9799.14 of SORNA establishes a three-tiered
system of specifically enumerated offenses requiring
registration for sexual offenders for differing lengths of
time. Pursuant to section 9799.15(a)(1), a person
convicted of a Tier I offense . . . must register for 15
years. A Tier II offender must register for 25 years, while
a Tier III offender must register for the remainder of his or
her life. 42 Pa.C.S. § 9799.15(a)(2), (a)(3).
96 A.3d 1067, 1070 (Pa.Super.2014) (some internal citations omitted).
Appellant was convicted of indecent assault, a Tier I offense. 42 Pa.C.S. §
9799.14(b)(6). Therefore, Appellant is required to comply with SORNA’s
registration requirements for 15 years. 42 Pa.C.S. § 9799.15(a)(1).
In McDonough, this Court addressed constitutionality arguments that
are almost identical to those raised in Appellant’s brief. 96 A.3d at 1070.
The appellant in McDonough argued “it is unconstitutional and illegal to
require an individual to register as a sex offender for 15 years for a crime
that carries a maximum penalty of only two years in prison [and] that the
registration requirements of SORNA . . . are not civil in nature because they
impose restrictions and requirements which, if violated, can result in
imprisonment.” Id. at 1070.5
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5
The appellate brief in McDonough phrased the issues as:
Issue No. 3: Is it unconstitutional to require an appellant
to register for fifteen years for a crime that carries a
maximum penalty in the instance case of two year[s]?
(Footnote Continued Next Page)
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This Court in McDonough noted that it could not ignore the Supreme
Court of Pennsylvania’s finding that:
Because we do not view the registration requirements as
punitive but, rather, remedial, we do not perceive
mandating compliance by offenders who have served their
maximum term to be improper. Furthermore, the fact that
an offender may be held until such information is furnished
is no different from confining someone in a civil contempt
proceeding. While any imprisonment, of course, has
punitive and deterrent effects, it must be viewed as
remedial if release is conditioned upon one’s willingness to
comply with a particular mandate.
McDonough, 96 A.3d at 1071 (quoting Commonwealth v. Gaffney, 557
Pa. 327, 733 A.2d 616, 622 (1999)) (emphasis deleted). It similarly cited to
Commonwealth v. Benner, 853 A.2d 1068 (Pa.Super.2004), including
Benner’s finding that:
The registration provisions of Megan’s Law do not
constitute criminal punishment. The registration
requirement is properly characterized as a collateral
consequence of the defendant’s plea, as it cannot be
considered to have a definite, immediate and largely
automatic effect on a defendant’s punishment.
McDonough, 96 A.3d at 1071. The court in McDonough, noted that
although
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(Footnote Continued)
Issue 4: Is the Adam Walsh Statute unconstitutional in
requiring the an [sic] appellant to register for fifteen years
for said crime?
Appellant’s Brief, No. 1958 WDA 2013, at 7.
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Gaffney and Benner were decided prior to the effective
date of SORNA, the same principles behind the registration
requirements for sexual offenders under Megan’s Law
apply to those subject to SORNA. Namely, to effectuate,
through remedial legislation, the non-punitive goal of
public safety. Gaffney, 733 A.2d at 619; see 42 Pa.C.S.
§ 9791(a) (legislative findings and declaration of policy
behind registration of sexual offenders). In fact, one of
the main purposes behind SORNA is to fortify the
registration provisions applicable to such offenders. See
42 Pa.C.S. § 9799.10 (purpose of registration of sexual
offenders under SORNA); see also H.R. 75, 195th Gen.
Assemb. Reg. Sess. (Pa.2012).
Id. at 1071. The Court found the law was not unconstitutional as applied to
the appellant and that the appellant offered no competent evidence to
undermine the legislative findings, which support SORNA’s registration
requirement.6 Id.
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6
Because courts have found that the registration requirements are not
punitive, Appellant’s claim that the requirements constitute cruel and
unusual punishment fails. See Commonwealth v. Perez, 97 A.3d 747(Pa.Super.2014) (finding SORNA’s registration requirements are not
punitive, and application of the requirements does not violate the ex post
facto clause); United States v. Under Seal, 709 F.3d 257, 265 (4th
Cir.2013) (finding the federal SORNA statute was not punitive and did not
violate the Eighth Amendment’s prohibition on cruel and unusual
punishment); United States v. Crews, 496 F. App’x 896, 901 (11th
Cir.2012) (finding the federal SORNA statute did not violate the Eighth
Amendment); United States v. Davis, 352 F. App’x 270, 272 (10th
Cir.2009) (noting the existing authority did not support claim that the
federal SORNA statute violated the Eighth Amendment).
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Pursuant to McDonough, SORNA is not unconstitutional as applied to
Appellant. Further, Appellant has offered no evidence to undermine the
legislative findings, which support SORNA’s registration requirement.7
Appellant’s brief fails to reference McDonough. An attorney from the
Fayette County Public Defender’s Office represents Appellant. The Fayette
County Public Defender’s Office also represented the appellant in
McDonough. Attorneys from the Fayette County Public Defender’s office,
including counsel herein, have repeatedly raised the same or similar
constitutional challenges to SORNA as raised in McDonough, without citing
or discussing the precedential case.8 This Court has rejected those
arguments pursuant to McDonough.9 Counsel is reminded that he has a
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7
To the extent Appellant argues that the registration requirements are
unconstitutional because he was not found to be an SVP, he provides no
argument on this claim and fails to explain why the distinction is important
in terms of the statute’s applicability or constitutionality.
8
See, e.g., Appellant’s Brief, Commonwealth v. Havrilesko, No. 1528
WDA 2015 (Pa.Super. filed Nov. 12, 2015); Appellant’s Brief,
Commonwealth v. Brooks, No. 365 WDA 2015 (Pa.Super. filed Apr. 30,
2015); Appellant’s Brief, Commonwealth v. Miller, No. 102 WDA 2015
(Pa.Super. filed March 25, 2015); Appellant’s Brief, Commonwealth v.
Quinn, No. 1944 WDA 2014 (Pa.Super. filed Mar. 5, 2015); Appellant’s
Brief, Commonwealth v. Murray, No. 1694 WDA 2014 (Pa.Super. filed
Nov. 12, 2014); Appellant’s Brief, Commonwealth v. Burwell, No. 836
WDA 2014 (Pa.Super. filed Sept. 5, 2014); Commonwealth v. Fitzgerald,
No. 1129 WDA 2014 (Pa.Super. filed Sept. 5, 2014).
9
See, e.g., Commonwealth v. Havrilesko, No. 1528 WDA 2015
(Pa.Super. filed Feb. 26, 2016) (unpublished memorandum);
Commonwealth v. Brooks, No. 365 WDA 2015 (Pa.Super. filed Oct. 22,
2015) (unpublished memorandum); Commonwealth v. Miller, No. 102
(Footnote Continued Next Page)
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duty of candor toward the tribunal. As the comments to Pennsylvania Rule
of Professional Conduct 3.3 explain:
Legal argument based on a knowingly false representation
of law constitutes dishonesty toward the tribunal. A lawyer
is not required to make a disinterested exposition of the
law, but must recognize the existence of pertinent legal
authorities. Furthermore, as stated in paragraph (a)(2),
an advocate has a duty to disclose directly adverse
authority in the controlling jurisdiction that has not been
disclosed by the opposing party. The underlying concept is
that legal argument is a discussion seeking to determine
the legal premises properly applicable to the case.
Pa.R.Prof.Cond. 3.3, cmt. Legal Argument. Further, an argument raised in a
brief shall have a “discussion and citation of authorities as are deemed
pertinent.” Pa.R.A.P. 2119.10 A precedential case rejecting the claims raised
in an appeal, and which has been repeatedly relied on by this Court to reject
such claims, is indisputably pertinent legal authority. We strongly
recommend that counsel, as well as all attorneys working for the Fayette
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(Footnote Continued)
WDA 2015 (Pa.Super. filed June 24, 2015) (unpublished memorandum);
Commonwealth v. Quinn, 1944 WDA 2014 (Pa.Super. filed June 30, 2015)
(unpublished memorandum); Commonwealth v. Murray, No. 1694 WDA
2014 (Pa.Super. filed Feb. 11, 2015) (unpublished memorandum;
Commonwealth v. Burwell, No. 836 WDA 2014 (Pa.Super. filed Dec. 11,
2014); Commonwealth v. Fitzgerald, No. 1129 WDA 2014 (Pa.Super.
filed Dec. 11, 2014) (unpublished memorandum).
10
This Court has reminded attorneys from the Fayette County Public
Defenders’ Office to provide a citation to McDonough in at least three prior
cases. Memorandum, Burwell, No. 836 WDA 2014, at 3-4; Memorandum,
Fitzgerald, No. 1129 WDA 2014, at 3-4; Memorandum, Commonwealth v.
Trautman, No. 612 WDA 2015, at 4 n.3 (Pa.Super. filed Sept. 14, 2015).
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County Public Defender’s office, reference McDonough if raising the same
or similar challenges to the constitutionality of SORNA on the behalf of
future appellants.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/4/2016
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