Com. v. Arrigo, C.

J-S22007-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER J. ARRIGO :
:
Appellant : No. 1014 MDA 2018
Appeal from the Judgment of Sentence Entered February 6, 2018
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0001408-2016
BEFORE: SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 31, 2020
Appellant, Christopher J. Arrigo, appeals from the judgment of sentence
entered following his convictions of indecent assault and false imprisonment.1
At the time of sentencing, the trial court deemed Appellant to be a Tier-II
offender and ordered Appellant to comply with the Sexual Offenders
Registration and Notification Act (“SORNA”), 42 Pa.C.S. §§9799.10 et seq., as
modified by Act 10 and Act 29 of 2018 (“SORNA II”). Upon careful review, we
affirm in part and vacate the portion of Appellant’s judgment of sentence
deeming him to be a Tier-II offender under SORNA II, and remand for further
proceedings consistent with this memorandum.
____________________________________________
1 18 Pa.C.S. §§ 3126(a)(4) and 2903(a), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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On October 17, 2017, Appellant pled guilty to the crimes stated above.
On February 6, 2018, the trial court sentenced Appellant to serve a term of
incarceration of nine to twenty-three months for the crime of indecent assault.
Appellant was further sentenced to serve a consecutive two year term of
probation for the conviction of false imprisonment. The trial court also notified
Appellant of his obligation to register as a Tier-II offender under SORNA II for
his conviction of indecent assault.
On February 16, 2018, Appellant filed a post-sentence motion to modify
the SORNA II registration requirements of his sentence. A short hearing was
held on March 13, 2018. At the conclusion of the hearing, the trial court
ordered the parties to file briefs in support of their positions. On May 24,
2018, after the filing of the briefs, the trial court denied Appellant’s motion.
This timely appeal followed. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
I. Did The February 21, 2018 Amendments To SORNA, Specifically
Subchapter H, Change SORNA To The Extent That It Is Now Non-
punitive Such That It Could Be Legally Applied To Mr. Arrigo?
II. Is Mr. Arrigo’s Sentence Of Twenty-five (25) Years Of
Punishment Pursuant To SORNA Illegal As SORNA Is Not A
Sentencing Alternative Authorized By Section 9721 Of The Judicial
Code And The Trial Court Therefore Lacked Authority To Impose
Such Sentence?
III. Is Mr. Arrigo’s Sentence Of Twenty-five (25) Years Of
Punishment Pursuant To SORNA Illegal As The Statutory Maximum
For a Misdemeanor Of The First Degree As Codified At Section
1104(1) Of The Crimes Code Is Five (5) Years?
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IV. Is Mr. Arrigo’s Sentence Of Twenty-five (25) Years Of
Punishment Pursuant To SORNA A Violation Of Both The Sixth And
Fourteenth Amendments To The United States Constitution As The
Penalty Imposed Was Increased Beyond The Prescribed Statutory
Maximum Based Upon The General Assembly’s Factual
Determination That Defendant “Pose[s] A High Risk Of Committing
Additional Sexual Offenses," 42 Pa.C.S. § 9799.11(a)(4), A Fact
That Was Not Submitted To The Jury Nor Proven Beyond A
Reasonable Doubt As Required By Apprendi v. New Jersey, 530
U.S. 466 (2000).
V. Does SORNA Deny Petitioner Due Process To His Fundamental
Right Of Reputation Under Article I, Section I Of The Pennsylvania
Constitution Because It Creates An Irrebuttable Presumption That
Those Convicted Of Enumerated Offenses “Pose A High Risk Of
Committing Additional Sexual Offenses?”
Appellant’s Brief at 5-6 (verbatim).
We address Appellant’s issues together because they are claims akin to
the constitutional challenges considered by our Supreme Court in
Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020). Therefore,
Torsilieri guides our disposition in this case.
In Torsilieri, the Commonwealth appealed from the trial court’s order
deeming SORNA II unconstitutional under multiple legal theories pertaining to
the registration and reporting requirements set forth in Subchapter H of the
statute. More specifically, the trial court in Torlilieri:
concluded that the registration and notification provisions of
Revised Subchapter H[2] violated [Torsilieri’s] right to due process
by impairing his right to reputation, as protected by the
Pennsylvania Constitution, through the utilization of an
irrebuttable presumption. The court also concluded that the
____________________________________________
2 The Supreme Court uses the term “Revised Subchapter H” to refer to
Subchapter H as it appears under SORNA II.
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statute violated his right to due process under the United States
and Pennsylvania Constitutions because the statutory system
failed to provide the requisite notice and opportunity to be heard.
It also concluded that Revised Subchapter H violated the
separation of powers doctrine because the General Assembly’s
enactment of Revised Subchapter H essentially removed the trial
court’s ability to fashion an individualized sentence. Finally, the
court held that the statute violated Alleyne and Apprendi by
allowing “the imposition of enhanced punishment based on an
irrebuttable presumption of future dangerousness that is neither
determined by the finder of fact nor premised upon proof beyond
a reasonable doubt.” The court, therefore, vacated [Torsilieri’s]
sentence to the extent it required him to comply with Revised
Subchapter H’s sexual offender registration provisions.
Torsilieri, 232 A.3d at ___ (citation omitted).
In order to resolve all of the constitutional challenges, the Torsilieri
Court concluded that factual and credibility findings were necessary regarding
whether “the legislative determinations underpinning Revised Subchapter H
[of SORNA II] … (1) that all sexual offenders pose a high risk of recidivation
and (2) that the tier-based registration system of Revised Subchapter H
protects the public from the alleged danger of recidivist sexual offenders …
have been undermined by recent scientific studies….” Torsilieri, 232 A.3d at
___.
Our recent decision in Commonwealth v. Mickley, ___ A.3d ___, 2020
Pa. Super. 233 (Pa. Super. filed September 24, 2020), recognized the following
with regard to Torsilieri and its conclusion compelling a remand to the trial
court for development of an evidentiary record:
The Torsilieri Court did not reach the merits of any of the
constitutional claims at issue, determining instead that the factual
record was not sufficiently developed in the trial court. The Court
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concluded a remand was 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.” Id. at *13. The Court stated:
We recognize that the Commonwealth parties
relied upon our recent statement in Muniz, rejecting
expert evidence calling into question the legislature’s
assessment of sexual offender recidivism risks and the
effectiveness of tier-based registration systems. In
light of this reliance, we emphasize that all cases are
evaluated on the record created in the individual case.
Thus, a court need not ignore new scientific evidence
merely because a litigant in a prior case provided less
convincing evidence. Indeed, this Court will not turn
a blind eye to the development of scientific research,
especially where such evidence would demonstrate
infringement of constitutional rights.
Nevertheless, we also emphasize that it will be
the rare situation where a court would reevaluate a
legislative policy determination, which can only be
justified in a case involving the infringement of
constitutional rights and a consensus of scientific
evidence undermining the legislative determination.
We reiterate that while courts are empowered to
enforce constitutional rights, they should remain
mindful that “the wisdom of a public policy is one for
the legislature, and the General Assembly’s
enactments are entitled to a strong presumption of
constitutionality rebuttable only by a demonstration
that they clearly, plainly, and palpably violate
constitutional requirements.”
* * *
Accordingly, we conclude that the proper
remedy is to remand to the trial court 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
Commonwealth] has refuted the relevant legislative
findings supporting the challenged registration and
notification provisions of Revised Subchapter H.
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Id. at *21 (emphasis added) (citations omitted).
Mickley, ___ A.3d at ___, 2020 PA Super. 233 at * 9-10.
Here, although the trial court held a short hearing to address Appellant’s
post-sentence motion, there was no evidence presented. N.T., 3/13/18, at 2-
3. Rather, counsel for each party simply provided rudimentary arguments.
Id. at 2. Immediately following counsels’ comments, the trial court entered
an order directing both parties to file briefs. Id. at 3. As with Mickley, there
is no evidence of record to decide the issues before us. Thus, following
Torsilieri and Mickley, we vacate the order denying Appellant’s post-
sentence motion and remand for a hearing at which the parties can present
evidence for and against the relevant legislative determinations discussed
above. We affirm Appellant’s judgment of sentence in all other respects.
Judgment of sentence vacated in part and affirmed in part. Case
remanded for further proceedings consistent with this memorandum and
Torsilieri. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/2020
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