Com. v. Prince, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DARRIUS J. PRINCE :
:
Appellant : No. 3007 EDA 2018
Appeal from the Judgment of Sentence Entered August 6, 2018
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0000025-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARRIUS J. PRINCE :
:
Appellant : No. 1243 EDA 2019
Appeal from the Judgment of Sentence Entered August 6, 2018
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0000025-2018
BEFORE: BOWES, J., SHOGAN, J., and PELLEGRINI, J.*
MEMORANDUM BY SHOGAN, J.: FILED: MARCH 22, 2021
In the above-captioned cases, Appellant, Darrius J. Prince, appeals from
the judgment of sentence entered August 6, 2018, which, as explained infra,
was made final by the order entered in the Court of Common Pleas of Bucks
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* Retired Senior Judge assigned to the Superior Court.
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County on March 18, 2019. In addition, the Commonwealth has filed a motion
to quash the appeal at docket number 1243 EDA 2019. After a thorough
review, we deny the motion to quash, consolidate the above-captioned
appeals, affirm the judgment of sentence but vacate the order denying
Appellant’s post-sentence motion that challenged the constitutionality of the
Sexual Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.
§§ 9799.10-9799.42, and we remand for further proceedings.
The trial court set forth the pertinent factual and procedural history of
this case as follows:
On August 6, 2018, [Appellant] pleaded guilty to two (2)
counts of Rape of a Child,1 one (1) count of Statutory Sexual
Assault,2 two (2) counts of Involuntary Deviate Sexual Intercourse
with a Child,3 one (1) count of Involuntary Deviate Sexual
Intercourse with a Person Less Than 16 Years of Age,4 two (2)
counts of Aggravated Indecent Assault of a Child,5 one (1) count
of Aggravated Indecent Assault of a Complainant Less than 16,6
one (1) count of Corruption of Minors,7 two (2) counts of Indecent
Assault of a Person Less than 13 Years of Age,8 and one (1) count
of Indecent Assault of a Person Less than 16 Years of Age.9
1 18 Pa.C.S.A. § 3121(c)
2 18 Pa.C.S.A. § 3122.1(b)
3 18 Pa.C.S.A. § 3123(b)
4 18 Pa.C.S.A. § 3123(a)(7)
5 18 Pa.C.S.A. § 3125(b)
6 18 Pa.C.S.A. § 3125(a)(ii)
7 18 Pa.C.S.A. § 6301(a)(1)(ii)
8 18 Pa.C.S.A. § 3126(a)(7)
9 18 Pa.C.S.A. § 3126(a)(8)
Immediately following his guilty plea, the trial court judge,
the Honorable Raymond F. McHugh, sentenced Appellant to a
period of incarceration of not less than seven (7) years but not
more than twenty (20) years on Count 1 Rape of a Child, and to
a period of twenty (20) years of probation for Count 4 IDSI with
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a Child, to be served consecutive to the sentence imposed under
Count 1. Appellant was also ordered to register as a Tier[-]III
sexual offender and he was directed to undergo an assessment by
the [Sexual Offender Assessment Board (“SOAB”)] to determine
if he is a sexually violent predator [(“SVP”)], to which he objected.
No further penalties were imposed on the remaining counts:
On August 8, 2018, Appellant filed a Motion to Vacate Order
and a Motion to Withdraw Plea. On August 31, 2018, in
conjunction with other Defendants, Appellant filed his “Motion to
Declare SORNA 42 Pa.C.S.A. 9799 et seq. Unconstitutional, Motion
to Vacate/Bar SOAB Evaluation, Objection, to Commonwealth’s
Petition for Sexually Violent Predator Hearing, Motion for
Continuance/Abeyance/Evidentiary Hearing and/or Motion to Bar
Imposition of an Illegal Sentence.”
On September 19, 2018, two days after the September 17,
2018 en banc hearing on [Appellant’s] constitutional challenges to
SORNA, the trial court held a hearing on Appellant’s Motion to
Withdraw his Guilty Plea, which Judge McHugh thereafter denied.
On September 27, 2018, the Commonwealth filed its
Supplemental Memorandum of Law in Opposition to [Appellant’s]
Motions to Quash. On October 4, 2018, Appellant filed his
“Responsive Brief in Support of the Motion to Find Sexual Violent
Predator Classification Procedure and the Entirety of SORNA II
Unconstitutional.”
On October 11, 2018, Appellant filed a Notice of Appeal from
the [September 19, 2018] Order denying his motion to withdraw
his Guilty Plea[, which received Superior Court docket number
3007 EDA 2018.]
Trial Court Opinion, 7/10/19, at 1-2.
As previously indicated, the trial court held an en banc hearing on
September 17, 2018. Thereafter, Appellant and the Commonwealth filed
additional briefs with the en banc court.
On December 17, 2018, after Appellant had filed the notice of appeal
docketed at 3007 EDA 2018, the en banc panel of the trial court filed a
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memorandum opinion holding that the current version of SORNA, as amended
by Act 29, was punitive and therefore unconstitutional. The Commonwealth
filed a motion for reconsideration, arguing that even if because Act 29 were
punitive, it is not unconstitutional. The Commonwealth further noted that the
en banc court’s determination failed to identify the constitutional provision
violated as a result of Act 29 being punitive.
On February 13, 2019, the trial court held a brief hearing and ordered
the filing of additional briefs. The Commonwealth filed a brief on February 22,
2019, and Appellant filed a brief on February 25, 2019. On March 18, 2019,
the en banc panel court filed an order clarifying the implications of the court’s
December 17, 2018 determination. Specifically, the March 18, 2019 order
vacated the portion of the December 17, 2018 memorandum opinion that held
Act 29 to be unconstitutional. The court further clarified that although
punitive, Subchapter H of Act 29 is constitutional except as to SVP
determinations.
On April 17, 2019, Appellant filed an appeal from the March 18, 2019
order entered by the en banc court, which received Superior Court docket
number 1243 EDA 2019. Appellant and the trial court complied with Pa.R.A.P.
1925.
Appellant presents the following issue in his appeal docketed at 3007
EDA 2018:
A. DID THE TRIAL COURT ERR IN REFUSING TO ALLOW THE
APPELLANT TO WITHDRAW HIS GUILTY PLEA AFTER HE
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ASSERTED HIS INNOCENCE AND STATED THE GUILTY PLEA
RESULTED FROM FEELING PRESSURE TO PLEAD FROM HIS WIFE?
Appellant’s Brief at 4. (capitalization in original)
In his appeal docketed at 1243 EDA 2019, Appellant sets forth the
following issues for our review:
A. Whether the Lower Court erred when it failed to find that
ACT 29 and its registration requirements violated the United
States Constitution and the enhanced protections under the
Pennsylvania Constitution on its face and as applied?
B. Whether the Lower Court erred when it failed to find that
ACT 29 and its registration requirements violated the United
States and Pennsylvania Constitution Due Process prohibition
against ex post facto laws?
C. Whether the Lower Court erred when it failed to find that
ACT 29 and its registration requirements violated United States
and Pennsylvania Constitutional Due Process protections because
it deprives Appellant of the Right to Reputation under the
Pennsylvania Constitution, it creates an irrebuttable presumption,
treats all offenders universally as high-risk, violates individualized
punishment, overly inclusive of offenders and charges, ignores
reasonable alternative means exist to identify offender risk,
denies any meaningful opportunity to be heard, exceeds the least
restrictive means requirement, and otherwise violates substantive
Due Process protections?
D. Whether the Lower Court erred when it failed to find that
ACT 29 and its registration requirements violate the United States
and Pennsylvania Constitutions as it constitutes cruel and unusual
punishment where registration is based upon empirically false
myths, fails to deter first time offenders, fails to reduce recidivism,
threatens public safety, forces registrants and their families to
suffer, creates an impassable barrier to reintegration into law-
abiding society, and fails to address each offender individually?
E. Whether the Lower Court erred when it failed to find that
ACT 29 and its registration requirements violate the United States
and Pennsylvania Constitutions’ Separation of Powers Doctrine, as
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it gave judicial powers to the Legislature and Pennsylvania State
Police?
F. Whether the Lower Court erred when it failed to find that
ACT 29 and its registration requirements violated United States
and Pennsylvania Constitutions’ Due Process provisions as it
increased the maximum sentence without proof beyond a
reasonable doubt to a jury in violation of Alleyne v. United
States, 570 U.S. 99 (2013), and that said provisions are not
severable?
Appellant’s Briefs at 4-5.
Prior to addressing the issues set forth by Appellant, we address the
Commonwealth’s motion to quash the appeal docketed at 1243 EDA 2019.
The Commonwealth argues that once Appellant filed a notice of appeal on
October 11, 2018, from the order of denying the post-sentence motion to
withdraw his guilty plea, which was docketed at 30037 EDA 2018, the lower
court no longer had jurisdiction. The Commonwealth posits that the trial court
lost jurisdiction when Appellant filed the premature notice of appeal on
October 11, 2018, prior to disposition of his pending supplemental post-
sentence motion challenging the provisions of SORNA. The Commonwealth
relies upon Pa.R.A.P. 1701, which provides: “Except as otherwise prescribed
by these rules, after an appeal is taken or review of a quasijudicial order is
sought, the trial court or other government unit may no longer proceed further
in the matter.” Motion to Quash, 5/28/19, at 4 (citing Pa.R.A.P. 1701).
Therefore, the Commonwealth characterizes the trial court’s March 18, 2019
order denying Appellant’s supplemental post-sentence motion as a legal
nullity. We disagree.
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In Commonwealth v. Rojas, 874 A.2d 638 (Pa. Super. 2005), the
appellant filed a notice of appeal prior to disposition of his post-sentence
motion. Id. at 641. In Rojas, the Commonwealth argued that the appeal
divested the lower court of jurisdiction over the pending post-sentence
motion, and the order dismissing the appellant’s post-sentence motion was a
nullity, entered without jurisdiction. Id. The Rojas Court disagreed. Citing
Commonwealth v. Borrero, 692 A.2d 158 (Pa. Super. 1997), we found,
pursuant to Pa.R.Crim.P. 720, that the judgment of sentence does not become
final for appeal purposes until the trial court disposes of the post-sentence
motion or it is denied by operation of law. Id. at 643. We concluded the
appellant’s direct appeal was improperly filed from a non-final order and did
not divest the trial court of jurisdiction to decide the post-sentence motion.
Id. at 643.
In Borrero, we noted the following in explaining that the appellant filed
a premature direct appeal before his timely post-sentence motions were
disposed of by the trial court or denied by operation of law:
[T]he appeal did not divest the trial court of jurisdiction in this
instance. As previously indicated, the comment to Rule [720]
explicitly prohibits the filing of an appeal while post-sentencing
motions are pending. Comment to Pa.R.Crim.P., Rule [720] … .
The comment further provides that a judgment of sentence does
not become final until post-sentencing motions are ruled upon by
the trial court or are denied by operation of law. Id. Moreover,
a trial court may proceed further in any matter in which a
nonappealable order has been entered, notwithstanding the filing
of a notice of appeal. Pa.R.A.P., Rule 1701(b)(6) … .
Consequently, [the] appellant’s improper appeal did not divest the
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trial court of jurisdiction to decide [the] appellant’s post-
sentencing motion or deny it by operation of law.
Borrero, 692 A.2d at 161 n.4.
Our review of the record reflects that Appellant’s judgment of sentence
was entered on August 6, 2018. On August 16, 2018, Appellant filed a timely
post-sentence motion seeking to withdraw his guilty plea. Thus, the trial court
had 120 days, or until December 14, 2018, in which to dispose of the post-
sentence motion. See Pa.R.Crim.P. 720(B)(3)(a) (“the judge shall decide the
post-sentence motions, including any supplemental motion, within 120 days
of the filing of the motion”). While the original post-sentence motion was
pending, Appellant filed a timely supplemental post-sentence motion on
August 31, 2018, in which he challenged various aspects of SORNA.1 On
September 19, 2018, the trial court denied Appellant’s original post-sentence
motion, but the supplemental post-sentence motion challenging SORNA
remained pending. Notwithstanding the fact that the supplemental post-
sentence motion was pending, Appellant filed a notice of appeal from the
judgment of sentence on October 11, 2018, and the appeal received the
docket number 3007 EDA 2018. However, the filing of an appeal while post-
sentence motions are pending is explicitly prohibited. Borrero, 692 A.2d at
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1 We note that Pa.R.Crim.P. 720 permits the filing of supplemental post-
sentence motions provided that the decision on the supplemental motion can
be decided within the time limits set forth at Pa.R.Crim.P. 720(B)(3).
Accordingly, Appellant’s supplemental post-sentence motion, which was filed
while the original motion was pending, was timely filed.
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161 n.4. Accordingly, Appellant’s direct appeal was improperly filed from a
non-final order and did not divest the trial court of jurisdiction to decide the
post-sentence motion. Rojas, 874 A.2d at 643.
When the trial court ruled on Appellant’s supplemental post-sentence
motion on March 18, 2019, Appellant’s judgment of sentence became final for
appeal purposes.2 Despite having filed a premature notice of appeal, the
instant appeal is not from an interlocutory judgment of sentence, and,
therefore, this Court has jurisdiction. See Pa.R.A.P. 905(a)(5) (“A notice of
appeal filed after the announcement of a determination but before the entry
of an appealable order shall be treated as filed after such entry and on the
day thereof.”). Moreover, the notice of appeal filed after the entry of the
March 18, 2019 order, which received docket number 1243 EDA 2019, was
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2 Again, we observe that the 120-day period in which to address post-
sentence motions tolled on December 14, 2018, without the trial court
addressing Appellant’s supplemental post-sentence motion. However, the
clerk of courts neither entered nor served upon the parties an order reflecting
that Appellant’s supplemental post-sentence motion was denied by operation
of law as required by Pa.R.Crim.P. 720(B)(3)(c). Consequently, the trial court
ruled on Appellant’s supplemental post-sentence motion on December 18,
2018, and then on March 18, 2019, when it addressed the Commonwealth’s
motion for reconsideration/clarification. In light of the fact that the clerk of
courts failed to follow the dictates of Rule 720(B)(3)(c), we hold that said
failure constitutes a breakdown in the court system. See Commonwealth v.
Braykovich, 664 A.2d 133, 138 (Pa. Super. 1995) (concluding that the clerk
of court’s failure to enter the requisite order deeming a post-sentence motion
denied by operation of law constitutes “a breakdown in the court system” and
authorizes the Superior Court to grant nunc pro tunc appeal). Accordingly,
we conclude that the entry of the order on March 18, 2019, was the triggering
mechanism for the purposes of appeal.
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superfluous because the previously filed notice of appeal is treated as having
been filed the day after the entry of the March 18, 2019 order. Hence, we
deny the Commonwealth’s motion to quash. Accordingly, we consolidate the
above captioned cases and will dispose of each in turn.
3007 EDA 2018
In his sole issue presented at 3007 EDA 2018, Appellant argues that the
trial court erred in denying his post-sentence motion to withdraw his guilty
plea. Appellant’s 3007 EDA 2018 Brief at 9-11. Appellant contends that he
presented specific facts to substantiate his innocence and that his plea was
based on pressure from his wife. Id. at 10. He also alleges that he was not
engaged in “sentence testing” when he accepted the negotiated guilty plea.
Id. at 11.
We begin by setting forth our standard of review. In
Commonwealth v. Broaden, 980 A.2d 124 (Pa. Super. 2009),
we summarized the principles governing post-sentence motions
to withdraw pleas:
[P]ost-sentence motions for withdrawal are subject to
higher scrutiny since courts strive to discourage entry
of guilty pleas as sentence-testing devices. A
defendant must demonstrate that manifest injustice
would result if the court were to deny his post-
sentence motion to withdraw a guilty plea. Manifest
injustice may be established if the plea was not
tendered knowingly, intelligently, and voluntarily. In
determining whether a plea is valid, the court must
examine the totality of circumstances surrounding the
plea. A deficient plea does not per se establish
prejudice on the order of manifest injustice.
Id. at 129 (citations omitted). “It is well-settled that the decision
whether to permit a defendant to withdraw a guilty plea is within
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the sound discretion of the trial court." Commonwealth v. Hart,
174 A.3d 660, 664 (Pa. Super. 2017) (applying abuse of discretion
in post-sentencing context). The term discretion
imports the exercise of judgment, wisdom and skill so
as to reach a dispassionate conclusion, and
discretionary power can only exist within the
framework of the law, and is not exercised for the
purpose of giving effect to the will of the judges.
Discretion must be exercised on the foundation of
reason, as opposed to prejudice, personal
motivations, caprice or arbitrary action. Discretion is
abused when the course pursued represents not
merely an error of judgment, but where the judgment
is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a
result of partiality, prejudice, bias or ill will.
Commonwealth v. Shaffer, 551 Pa. 622, 712 A.2d 749, 751
(Pa. 1998) (citation omitted).
Commonwealth v. Kehr, 180 A.3d 754, 756-757 (Pa. Super. 2018).
In addressing Appellant’s issue, the trial court offered the following
discussion:
[W]e engaged in an extensive [guilty plea] colloquy with
Appellant. The colloquy covered the terms and conditions of his
guilty plea negotiations. The elements of each crime were
explained clearly to him. He was advised of the maximum
penalties for each count of criminal conduct. He was advised of
the recommendations of the sentencing guidelines. Appellant was
repeatedly asked if he understood the proceedings and answered
affirmatively each time. He was emotional but an active
participant during the entire process. We found him to be
credible.
* * *
Appellant has not suggested he was incompetent at the time
he entered his plea of guilty. He has never made a clear
proclamation of innocence. His testimony at the hearing on his
Motion to Withdraw Guilty Plea was vague and unconvincing. It
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was clearly insufficient to satisfy his burden of proving his plea
entered the month before was involuntary.
Trial Court Opinion, 9/13/19, at 8-9.
Upon review of the record, we conclude there is no evidence of record
supporting Appellant’s claim that his wife coerced him into pleading guilty. At
his guilty plea hearing, after Appellant specifically was asked if “anyone
threatened you or forced you or coerced you or promised you anything in
return for your plea of guilty[,]” Appellant responded in the negative. N.T.,
8/6/18, at 19. When asked if he was entering into this plea of his “own free
will," Appellant responded, “Yes sir.” Id. at 6. Appellant never indicated
during the hearing that his wife pressured or coerced him into pleading guilty,
and he has not subsequently provided any evidence of coercion. “A defendant
is bound by the statements made during the plea colloquy, and a defendant
may not later offer reasons for withdrawing the plea that contradict
statements made when he pled.” Commonwealth v. Brown, 48 A.3d 1275,
1277 (Pa. Super. 2012). Accordingly, we conclude that the trial court did not
abuse its discretion in denying Appellant’s post-sentence motion to withdraw
his guilty plea. Hence, Appellant’s issue lacks merit.
1243 EDA 2019
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We next address the issues presented by Appellant at 1243 EDA 2019.3
In these six issues, Appellant raises challenges to the constitutionality of the
order requiring him to register under SORNA as a Tier-III offender.
Commonwealth v. Mickley, 240 A.3d 957 (Pa. Super. 2020), instructs
that the proper remedy herein is to remand for an evidentiary hearing on
Appellant’s challenges to SORNA. In Mickley, this Court observed that the
appellant’s constitutional challenges to SORNA were identical to arguments
raised in Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020). 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 in Torsilieri concluded that 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 587. Based on Torsilieri,
Mickley held:
Here, despite defense counsel’s attempt, no evidence was
presented at the hearing on Mickley’s post-sentence motion.
Thus, in accordance with Torsilieri, we vacate the order denying
Mickley’s post-sentence motion and remand for a hearing at which
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3 We note that in the notice of appeal docketed at 1243 EDA 2019, Appellant
purported to appeal from the trial court’s March 18, 2019 order denying his
supplemental post-sentence motions. In Commonwealth v. Chamberlain,
658 A.2d 395 (Pa. Super. 1995), we explained that “the order denying post-
sentence motions acts to finalize the judgment of sentence for purposes of
appeal. Thus, the appeal is taken from the judgment of sentence, not the
order denying post-sentence motions.” Id. at 397. We have corrected the
caption accordingly.
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the parties can present evidence for and against the relevant
legislation determinations discussed above.
Mickley, 240 A.3d at 963; see also Commonwealth v. Asher, ___ A.3d
___, 2020 PA Super 293, at *4 (Pa. Super. filed December 21, 2020) (citing
Torsilieri and Mickley and concluding that where the defendant preserved
his constitutional challenges to SORNA, but the trial court denied relief without
developing a factual record, remand was proper for a hearing at which the
parties could present evidence for and against relevant legislative
determinations).
Upon review of the record, we conclude that the same remedy is
appropriate here. As noted by the Commonwealth, the SORNA issues raised
by Appellant are the same as those raised in Torsilieri. Commonwealth’s
Brief at 21 n.7. At the en banc hearing held September 17, 2018, Appellant’s
counsel noted that the record was not complete and sought to present into
evidence various affidavits “relevant to the due process challenges.” N.T.,
9/17/18, at 5. Appellant’s counsel indicated the desire to create a record
similar to Torsilieri. Id. at 5-6. However, the Commonwealth was hesitant
to stipulate to the admission of the evidence. After extensive discussion and
a brief recess, the en banc court reached the following conclusion:
We’ve decided [to] proceed with the remaining arguments
but not proceed on the due process issue today, and we’re
ordering both sides to meet within ten days and to endeavor to
see whether or not you can reach an agreement as to what the
record will be, whether there will be a stipulation as to the
admissibility of affidavits and curriculum vitae for experts for us
to consider.
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The second thing we’re asking you to meet and discuss is
for what purpose are we to consider those expert reports. See if
you can reach an agreement, and if you cannot, you’ll let us know
that as well and what your position is. And then we can decide
how we proceed on the due process issue.
Id. at 32-33.
The record further reflects that the parties were not able to reach an
agreement as requested by the en banc court. Moreover, the en banc court
failed to address the due-process claims presented by Appellant in either its
memorandum opinion entered on December 17, 2018, or in its subsequent
order entered March 18, 2019. Hence, the proper remedy under these
circumstances is to remand for a hearing at which the parties can present
evidence relating to Appellant’s SORNA arguments.
Motion to quash denied. Cases at docket numbers 3007 EDA 2018 and
1243 EDA 2019 consolidated. Judgment of sentence affirmed. Order entered
March 18, 2019, denying supplemental post-sentence motion vacated and
case remanded for proceedings consistent with Torsilieri. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/21
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