Com. v. Elliott, A.

J-S56015-20
2021 PA Super 58COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALFRED ELLIOTT :
:
Appellant : No. 3066 EDA 2019
Appeal from the PCRA Order Entered October 22, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1003221-2005
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
OPINION BY BENDER, P.J.E.: FILED: APRIL 5, 2021
Appellant, Alfred Elliott, appeals from the post-conviction court’s order
denying, as untimely, his petition filed under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Herein, Appellant argues that his sexual-
offender registration, notification, and counseling (“RNC”) requirements, and
designation as a sexually violent predator (“SVP”), are unconstitutional. After
careful review, we disagree with the PCRA court that Appellant’s petition is
untimely, but we nevertheless affirm the order denying his petition.
The facts of Appellant’s underlying convictions are not pertinent to his
present appeal. We need only note that on April 16, 2012, Appellant entered
a negotiated guilty plea to charges of rape by forcible compulsion, corruption
of a minor, and simple assault. On December 12, 2012, the trial court
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* Retired Senior Judge assigned to the Superior Court.
J-S56015-20
determined that Appellant meets the criteria for designation as an SVP under
the Sexual Offender Registration and Notification Act in effect at that time
(“SORNA I”).1 Pursuant to his negotiated plea agreement, Appellant was
sentenced to a term of 6 to 12 years’ incarceration. He did not file a direct
appeal.
Nearly six years later, on October 2, 2018, Appellant filed a pro se PCRA
petition. Therein, he claimed that, under Commonwealth v. Muniz, 164
A.3d 1189 (Pa. 2017), the imposition of his RNC requirements under SORNA
I violated ex post facto principles. See Pro Se PCRA Petition, 10/2/18, at 2-3
(unnumbered); see also Muniz, 164 A.3d at 1223 (holding that the
registration requirements of Subchapter H of SORNA I, as applied
retroactively, were punitive under the seven-factor test set forth by the United
States Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144(1963), and, thus, SORNA I was unconstitutional under the ex post facto
clauses of the United States and Pennsylvania Constitutions). Counsel was
appointed and filed an amended petition on Appellant’s behalf, raising the
following issue:
a. [Appellant’s] designation as [an SVP] was ruled
unconstitutional and illegal in Commonwealth v. … Butler, [173
A.3d 1212 (Pa. Super. 2017) (“Butler I”)] [(]citing Alleyne v.
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1 42 Pa.C.S. §§ 9799.51-9799.75.
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[U.S., 570 U.S. 99 (2013)].[2] Since the SVP designation has been
rule[d] illegal and unconstitutional[,] this Court should vacate its
finding of SVP (Tier Three Megan’s [L]aw [r]equirements) in the
case of [Appellant].
Amended Petition, 12/31/18, at 2 (unnumbered; some citations omitted).
On August 12, 2019, the Commonwealth filed a response to Appellant’s
PCRA petition, arguing that it should be dismissed as untimely. On August
16, 2019, Appellant’s counsel filed a “Response to Commonwealth Motion to
Dismiss PCRA Petition,” for the first time stating that his RNC requirements
“under the Megan’s Law [are] unconstitutional and illegal under the Due
Process Clause of the United States Constitution and a violation of
[Appellant’s] State Constitutional Right to reputation under Pa. Const. Art. I,
Sec. 1.” Appellant’s Response to Commonwealth’s Motion to Dismiss,
8/16/19, at 1 (single page) (citation omitted).
On September 16, 2019, the PCRA court issued a Pa.R.Crim.P. 907
notice of its intent to dismiss Appellant’s petition without a hearing, on the
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2 After Muniz, a panel of this Court issued Butler I, holding that the statutory
mechanism for designating a defendant an SVP under SORNA I violated the
United States Supreme Court’s decisions in Alleyne, 570 U.S. at 106 (holding
that “facts that increase mandatory minimum sentences must be submitted
to the jury” and found beyond a reasonable doubt), and Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000) (holding that, “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt”). We reasoned that SORNA I required the trial
court to make the SVP determination by “clear and convincing” evidence,
rather than the beyond-a-reasonable-doubt standard and, thus, was
unconstitutional. Butler I, 173 A.3d at 1218.
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basis that it was untimely. He did not file a response. On October 22, 2019,
the court dismissed his petition.
Appellant filed a timely notice of appeal. The PCRA court did not order
him to file a Pa.R.A.P. 1925(b) statement, but it filed a Rule 1925(a) opinion
on April 21, 2020. Therein, the court considered only Appellant’s claim that
his SVP designation is unconstitutional pursuant to Butler I and Alleyne.
See PCRA court Opinion, 4/21/20, at 4. The court found that Appellant’s
petition was untimely and, alternatively, that he would not be entitled to relief
on the merits because our Supreme Court reversed Butler I in
Commonwealth v. Butler, 226 A.3d 972, 993 (Pa. 2020) (“Butler II”),
discussed infra. See id. at 4-5.
Herein, Appellant states two issues for our review:
I. Was the sentence of the trial court of life time [sic]
registration/reporting to the state police under Megan’s [L]aw
(SORNA) illegal and unconstitutional because it is an ex post facto
law and it violated [Appellant’s] due process right, under the 5 th
Amendment of the U[.]S. Constitution and his right to reputation
under the State Constitution?
II. Was … [A]ppellant’s PCRA [p]etition timely filed[,] even though
it was filed over one year after [Appellant’s] judgment of sentence
was final[,] because the State Supreme Court decision did not
occur until over [five] years after … [A]ppellant’s] PCRA [p]etition
was final[?]
Appellant’s Brief at 2.
We will address Appellant’s second issue first, as the PCRA time
limitations implicate our jurisdiction and may not be altered or disregarded in
order to address the merits of a petition. See Commonwealth v. Bennett,
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930 A.2d 1264, 1267 (Pa. 2007). Preliminarily, we must mention that, in
response to Muniz and Butler I, the Pennsylvania General Assembly
amended SORNA I by enacting Act 10 on February 21, 2018, and Act 29 on
June 12, 2018, which are collectively known as SORNA II. See Act of Feb.
21, 2018, P.L. 27, No. 10 (“Act 10”); Act of June 12, 2018, P.L. 140, No. 29
(“Act 29”). SORNA II now divides sex offenders into two subchapters: (1)
Subchapter H, which applies to an offender who committed a sexually violent
offense on or after December 20, 2012 (the date SORNA I became effective);
and (2) Subchapter I, which applies to an individual who committed a sexually
violent offense on or after April 22, 1996, but before December 20, 2012,
whose period of registration has not expired, or whose registration
requirements under a former sexual offender registration law have not
expired. Pursuant to SORNA II, Appellant’s conviction for rape by forcible
compulsion is a Subchapter I offense requiring lifetime registration. See 42
Pa.C.S. § 9799.55(b)(2)(i)(A). His SVP designation also carries a lifetime
registration requirement under Subchapter I of SORNA II. See 42 Pa.C.S. §
9799.55(b)(3).
Recently, in Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020),
our Supreme Court held that the RNC requirements of Subchapter I of SORNA
II do not constitute criminal punishment. Id. at 626.
In addition, the Lacombe Court expressly declined “to find the
PCRA, or any other procedural mechanism ... the exclusive
method for challenging sexual offender registration
statutes[.]” Lacombe[, 234 A.3d at 618]. According to the
Court, an offender’s requirements change frequently and may be
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retroactively applicable. See id. [at 617]. Thus, the strict
jurisdictional requirements of the PCRA render it unsuitable,
because many registrants will be ineligible for relief on timeliness
grounds or because their criminal sentence has expired while their
registration requirements continue. See id.
Commonwealth v. Smith, 240 A.3d 654, 658 (Pa. Super. 2020).
After Lacombe, this Court concluded in Smith that, because “[n]on-
punitive, administrative requirements are merely collateral consequences of a
criminal conviction[,] … a challenge to the requirements mandated by
Subchapter I of SORNA II pertains to a collateral consequence of one’s criminal
sentence and does not fall within the purview of the PCRA.” Id. (citations
omitted). Accordingly, the Smith panel held that a petitioner’s “substantive
claims challenging the application of Subchapter I of SORNA II’s lifetime
registration requirements are not cognizable under the PCRA and, thus, not
subject to its time-bar.” Id.Based on Lacombe and Smith, the RNC requirements of Subchapter I
are not criminal sanctions, and the applicability of SORNA II may be
challenged outside the PCRA. Therefore, the trial court erred by construing
Appellant’s challenge to his RNC requirements as an untimely PCRA petition.
Nevertheless, the court did not err by dismissing Appellant’s petition.3
Appellant claims, within his first issue, that his RNC requirements violate the
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3 It is well-settled that “this Court may affirm the decision of the PCRA [c]ourt
if it is correct on any basis.” Commonwealth v. Hutchins, 760 A.2d 50, 54
(Pa. Super. 2000) (citing Commonwealth v. Pursell, 749 A.2d 911, 917 (Pa.
2000); Commonwealth v. Ahlborn, 683 A.2d 632, 641 n.14 (Pa. Super.
1996)).
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ex post facto clause pursuant to Muniz. However, he fails to acknowledge
the Court’s holding in Lacombe that Subchapter I’s RNC requirements do not
constitute criminal punishment. Lacombe, 234 A.3d at 626. Additionally, in
Butler II, our Supreme Court determined that the RNC requirements
applicable to SVPs under Subchapter H are non-punitive, explaining:
Although we recognize the RNC requirements impose affirmative
disabilities or restraints upon SVPs, and those requirements have
been historically regarded as punishment, our conclusions in this
regard are not dispositive on the larger question of whether the
statutory requirements constitute criminal punishment. This is
especially so where the government in this case is concerned with
protecting the public, through counseling and public notification
rather than deterrent threats, not from those who have been
convicted of certain enumerated crimes, but instead from those
who have been found to be dangerously mentally ill. Under the
circumstances, and also because we do not find the RNC
requirements to be excessive in light of the heightened public
safety concerns attendant to SVPs, we conclude the RNC
requirements do not constitute criminal punishment.
Butler II, 226 A.3d at 992–93 (citation omitted).
While here, Appellant was deemed an SVP under Subchapter I, this
Court has observed that “Subchapter I contains less stringent reporting
requirements than Subchapter H….” Commonwealth v. Alston, 212 A.3d
526, 529 (Pa. Super. 2019). Because Subchapter I’s RNC requirements
applicable to SVPs are less burdensome than are Subchapter H’s requirements
for SVPs, it must be the case that Subchapter I’s RNC requirements for SVPs
also do not constitute criminal punishment, given our Supreme Court’s
decision in Butler II. Thus, we deem meritless Appellant’s argument that his
RNC requirements are punitive and violative of the ex post facto clause.
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Appellant also briefly claims that his due process rights were violated
because he was not afforded a “hearing to show that he was not a high risk
of being a recidivist[,] which is required under due process.” Appellant’s Brief
at 8. He states that “[t]his hearing is required because [he] has a fundamental
and an inherent right to reputation under the Pa. Const. Art[.] I[,] Sec[.] 1.”
Id. (citation omitted).
Our review of the record demonstrates that Appellant did not raise this
claim in his pro se petition, or in his counseled, amended petition. Instead,
he raised it for the first time in his “Response to Commonwealth Motion to
Dismiss PCRA Petition[.]” Appellant does not point to where in the record the
trial court granted him permission to supplement or amend his pleadings to
include this claim. Our Supreme Court has deemed such claims waived in the
PCRA context. See Commonwealth v. Mason, 130 A.3d 601, 649 (Pa.
2015) (concluding that Mason waived a claim that he raised for the first time
in his response to the Commonwealth’s motion to dismiss, where Mason failed
to point to where he sought, and was granted, the PCRA court’s permission to
amend his petition to include the claim). While Lacombe directs that the
PCRA is not the exclusive method for challenging sexual offender registration
requirements, Appellant chose to file his claim in a PCRA petition; thus, Mason
controls the question of waiver.
We also would deem Appellant’s due process claim waived for lack of
development. Before the trial court, he provided a single sentence to explain
this challenge to his registration requirements. See Appellant’s Response to
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Commonwealth’s Motion to Dismiss at 1 (single page) (“Also the requirement
that the defendant report under the Megan’s Law is unconstitutional and illegal
under the Due Process Clause of the United States Constitution and a violation
of [Appellant’s] State Constitutional Right to reputation under Pa. Const. Art.
I, Sec. 1.”) (citation omitted). Similarly, on appeal, Appellant fails to offer
any developed discussion of how SORNA II’s presumption that he poses a high
risk of recidivism violates his constitutional right to reputation, such that we
should afford him the relief he requests of vacating his lifetime registration
requirement. See Appellant’s Brief at 8-9, 11. This Court has explained:
When briefing the various issues that have been preserved, it is
an appellant’s duty to present arguments that are sufficiently
developed for our review. The brief must support the claims with
pertinent discussion, with references to the record and with
citations to legal authorities. Citations to authorities must
articulate the principles for which they are cited.
This Court will not act as counsel and will not develop arguments
on behalf of an appellant. Moreover, when defects in a brief
impede our ability to conduct meaningful appellate review, we
may dismiss the appeal entirely or find certain issues to be
waived.
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007), appeal
denied, 940 A.2d 362 (Pa. 2008) (citations omitted). Because, here, Appellant
did not raise his due process challenge in his pro se or amended petitions, or
develop it in any meaningful fashion before the trial court or on appeal, we
deem this argument waived.
Order affirmed.
Judge Kunselman joins this opinion.
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Judge Pellegrini files a concurring opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/5/21
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