Opinion
203 MDA 2023 J-A23030-23
01-17-2024
COMMONWEALTH OF PENNSYLVANIA v. JOHN JOSEPH MORELLI Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered January 18, 2023 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0001134-2020
Benjamin D. Kohler, Esq.
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS, P.J.E. [*]
MEMORANDUM
McLAUGHLIN, J.
John Joseph Morelli appeals from the order denying his motion to vacate the registration requirements imposed pursuant to the Sexual Offender Registration and Notification Act ("SORNA") and his motion to withdraw his nolo contendere plea. He raises an as-applied challenge to the constitutionality of SORNA and argues that the trial court erred in denying his motion to withdraw his plea. We affirm.
In December 2021, Morelli pleaded nolo contendere to one count of interference with custody of children, 18 Pa.C.S.A. § 2904. The charge stemmed from a July 2020 incident where Morelli, without privilege to do so, removed a three-year-old child from her residence and carried her approximately 1.6 miles away. The court sentenced Morelli pursuant to a negotiated sentence on this docket and another docket, at which he stipulated to a violation of probation. He received a sentence of time served for the instant docket and reinstatement of a four-year term of special probation at the other docket. The court did not mention the requirement that he register pursuant to SORNA at the plea or sentencing hearing.
In May 2022, Morelli filed a Motion to Vacate SORNA Requirements as Unconstitutional/Motion to Withdraw Nolo Contendere Plea Nunc Pro Tunc.He alleged he had not known that he had to register under SORNA until he received a letter from the Pennsylvania State Police informing him of the requirement. He maintained the registration requirement was unconstitutional as applied to his case.
In the motion to vacate, trial counsel stated that counsel did not know SORNA applied to Morelli until Morelli received the letter from the Pennsylvania State Police.
The court held a hearing in June 2022, where Morelli requested an opportunity to file a brief and that the court schedule an evidentiary hearing if, after reading the brief, it believed such a hearing was necessary. N.T., June 15, 2022, at 3. The parties submitted supplemental memoranda. In January 2023, the court denied the motion without holding an evidentiary hearing. Morelli filed a timely notice of appeal.
Morelli raises the following issues:
A. Did the [c]ourt err in denying [Morelli's] Motion and request to strike SORNA requirement[s] where the [t]rial
[c]ourt did not inform [Morelli] of the SORNA registration requirement at the time of plea or sentencing?
B. Did the [c]ourt err in denying [Morelli's] Motion and request to strike SORNA requirement where SORNA does not apply to the crime to which [Morelli] pleaded nolo contendere?
C. Did the [c]ourt err in denying [Morelli's] Motion and request to strike SORNA requirement where the facts of record establish that Interference with the Custody of a Child is not a sexual offense?
D. Did the [c]ourt err in denying [Morelli's] Motion and request to strike SORNA requirement where the [t]rial [c]ourt did not hold a hearing to determine if [Morelli] was "an individual who committed a violently sexual offense?"
E. Did the [c]ourt err in denying [Morelli's] request to withdraw his guilty plea?Morelli's Br. at 6-7.
Although Morelli lists five issues in the question presented section of his brief, he separates the argument section of his brief into two portions - whether SORNA is unconstitutional as applied to him and whether the court erred in denying the motion to withdraw his nolo contendere plea.
But see Pa.R.A.P. 2119(a) ("The argument shall be divided into as many parts as there are questions to be argued . . . .").
Morelli first argues that there was no evidence there was a sexual component to the crime, and requiring SORNA registration for a criminal defendant who did not engage in a sexually-related crime violates the Pennsylvania and United States Constitutions. He argues that SORNA creates an irrebuttable presumption that he poses a high risk of committing additional sexual offenses and deprives him of his right to reputation. He likens his case to Commonwealth v. Muhammad, 241 A.3d 1149 (Pa.Super. 2020), where this Court found SORNA unconstitutional as applied to the defendant. Morelli maintains that here, no facts suggest any sexual motive or contact.
A constitutional challenge raises a question of law, which we review de novo. Muhammad, 241 A.3d at 1154. "A party challenging a statute must meet the high burden of demonstrating that the statute clearly, palpably, and plainly violates the Constitution." Id. at 1155 (quoting In re J.B., 107 A.3d 1, 14 (Pa. 2014)) (internal quotation marks omitted). An as-applied attack on a statute "does not contend that a law is unconstitutional as written, but that its application to a particular person under particular circumstances deprives that person of a constitutional right." Id. (citation omitted).
When enacting SORNA, the General Assembly found that "[s]exual offenders pose a high risk of committing additional sexual offenses[.]" 42 Pa.C.S.A. § 9799.11(a)(4). "Based on this presumption, SORNA requires the State Police to maintain a statewide registry of sexual offenders that lists substantial information concerning the offenders." Muhammad, 241 A.3d at 1155; 42 Pa.C.S.A. § 9799.16. SORNA defines a sexual offender as "[a]n individual who has committed a sexually violent offense[.]" 42 Pa.C.S.A. § 9799.12. Under the statute, interference with custody of children, "except in cases where the defendant is the child's parent, guardian, or other lawful custodian," is a Tier I offense requiring registration as a sex offender for 15 years. Id. at §§ 9799.14(b)(3), 9799.15(a)(1).
In Muhammad, the defendant helped her brother take her nephew from his mother. 241 A.3d at 1153. The court found the defendant guilty of, among other things, interference with custody of children and conspiracy to interfere with custody of children. Id. Due to these convictions, she was required to register under SORNA. This Court concluded that "SORNA's provision that sexual offenders pose a high risk of recidivating is an irrebuttable presumption that clearly, palpably, and plainly violates [the defendant's] constitutional right to reputation." Id. at 1159.
The Court pointed out that "[a]n irrebuttable presumption is unconstitutional when it encroaches on an interest protected by the due process clause, the presumption is not universally true, and reasonable alternative means exist for ascertaining the presumed fact." Id. at 1155 (numbering omitted). It found that, as applied, the presumption encroached on an interest protected by the due process clause. It pointed out that registration "as a sex offender creates a presumption-indeed, a stigma-that [the defendant was] a dangerous adult who is likely to commit further sexual offenses." Id. at 1158. It noted the presumption affected the defendant's ability to obtain employment, education, and housing, and that SORNA did not provide an opportunity to rebut the presumption.
The Court next addressed whether the presumption that sexual offenders present a high risk of reoffending was true as applied to the defendant. It concluded that it "plainly [was] not." Id. It reasoned that the defendant had no criminal history and there was "no evidence in [the] case that [the defendant] committed or intended to commit any acts of a sexual nature." Id.
The Court in Muhammad explained that the case arose from a custody dispute and the defendant assisted her brother in taking his child from the child's mother. Id. at 1159. It pointed out there was no evidence the defendant engaged in "enticing" behaviors associated with sexual predators, "such as coaxing or attracting [the child] into the vehicle," and there was no sexual objective to the conspiracy. Id. The Court concluded that although the defendant did not submit expert or scientific testimony regarding her risk of reoffending, "it is clear, from the absence of any sexual misconduct in this case along with [the defendant's] otherwise spotless record, that she is not a high risk to commit additional (or any) sexual offenses." Id. When addressing the final prong, the Court found there were reasonable alternatives to the irrebuttable presumption, including actuarial instruments that are available to determine risk assessments, that were not used. The Court therefore concluded the irrebuttable presumption "clearly, palpably, and plainly violate[d the defendant's] constitutional right to reputation." Id.
Unlike the defendant in Muhammad, it is not clear that the presumption that the defendant was a high risk for reoffending was not true as to Morelli. Nothing of record here shows that the incident was part of a custody dispute and that Morelli was, however improperly, helping a parent to take their own child, without a sexual motivation. In further distinction from Muhammad, Morelli had a criminal background and was a stranger to the child. Morelli presented no evidence to establish that the presumption did not apply to him.Under these facts, we cannot conclude the trial court erred in finding SORNA not unconstitutional as-applied to Morelli.
Morelli told the trial court that under Muhammad, an evidentiary hearing might be necessary, but left the decision as to whether a hearing was required to the trial court. He did not request an evidentiary hearing. Further, he did not inform either the trial court or this Court of the evidence he would have presented at an evidentiary hearing.
Morelli raises only an as-applied, not a facial, challenge to the constitutionality of SORNA.
Morelli next maintains that it is undisputed that the court did not inform him of the registration requirement at the plea and sentencing hearing. He acknowledges that such a failure does not relieve the defendant of the duty to register under SORNA. However, he argues that nothing in SORNA or case law prevents a defendant from withdrawing a plea. He maintains that because the registration violates his constitutional rights and constitutes "prejudice on the order of manifest injustice," he should be permitted to withdraw the guilty plea. Morelli's Br. at 23.
To be entitled to relief on a post-sentence motion to withdraw a guilty plea, the defendant "must demonstrate that manifest injustice would result if the court were to deny his post-sentence motion to withdraw a guilty plea." Commonwealth v. Kehr, 180 A.3d 754, 756-57 (Pa.Super. 2018) (quoting Commonwealth v. Broaden, 980 A.3d 124, 129 (Pa.Super. 2009)). Whether to grant a post-sentence motion to withdraw is in the discretion of the trial court. Id. at 757.
Although a trial court is required to inform a defendant of the duty to register under SORNA, the court's failure to do so does not relieve the defendant from the registration requirements. 42 Pa.C.S.A. § 9799.23(b)(1). As discussed above, Morelli has not established that SORNA is unconstitutional as applied to him such that registration should not be required. Because his argument is based on the unconstitutionality of SORNA, without a showing of unconstitutionality, there is no basis to find the trial court abused its discretion in denying the motion to withdraw the nolo contender plea.
Order affirmed.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.