Opinion
1839 EDA 2023 J-S28019-24
08-27-2024
COMMONWEALTH OF PENNSYLVANIA v. ROBERT TODD NEUMAN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered February 13, 2023 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0003934-2021
BEFORE: STABILE, J., MURRAY, J., and LANE, J.
MEMORANDUM
MURRAY, J.
Robert Todd Neuman (Appellant) appeals from the judgment of sentence imposed following his guilty pleas to one count each of aggravated indecent assault of a person less than 16 years of age, statutory sexual assault, and corruption of minors. Appellant challenges the constitutionality of the Sex Offender Registration and Notification Act (SORNA), as applied to him. We affirm in part, and vacate in part. Specifically, we vacate Appellant's judgment of sentence for statutory sexual assault, insofar as the trial court imposed an unlawful, three-year period of probation pursuant to 42 Pa.C.S.A. § 9718.5(a). In all other respects, we affirm.
See 42 Pa.C.S.A. § 9799.10, et seq. By means of background, SORNA was originally enacted on December 20, 2011, effective December 20, 2012. See Act of Dec. 20, 2011, P.L. 446, No. 111, § 12. Numerous amendments followed, including on June 12, 2018, P.L. 140, No. 29, §§ 1-23, effective June 12, 2018 (Act 29). This Court has explained,
[I]n Act 29 …, the General Assembly split [original] SORNA['s] former Subchapter H into a Revised Subchapter H and Subchapter I. Subchapter I addresses sexual offenders who committed an offense on or after April 22, 1996, but before December 20, 2012. See 42 Pa.C.S.A. §§ 9799.51-9799.75. Subchapter I contains less stringent reporting requirements than Revised Subchapter H, which applies to offenders who committed an offense on or after December 20, 2012. See 42 Pa.C.S.A. §§ 9799.10-9799.42.Commonwealth v. Villanueva-Pabon, 304 A.3d 1210, 1211 n.2 (Pa. Super. 2023). Instantly, based on the dates of Appellant's offenses, the reporting requirements of Revised Subchapter H apply.
Section 9718.5(a) provides: "A person who is convicted in a court of this Commonwealth of an offense under [42 Pa.C.S.A. §] 9799.14(d) (relating to sexual offenses and tier system) shall be sentenced to a mandatory period of probation of three years[,] consecutive to and in addition to any other lawful sentence issued by the court." 42 Pa.C.S.A. § 9718.5(a). Statutory sexual assault (18 Pa.C.S.A. § 3122.1(a)(1)) is not an enumerated offense under Section 9799.14(d).
On September 26, 2022, Appellant entered an open guilty plea to the aforementioned crimes. As part of the plea, Appellant admitted that on three occasions in late 2020 and early 2021, he and the minor victim "had sexual intercourse and [Appellant] also put his finger inside her vagina. He also supplied [the victim] with alcohol and marijuana." N.T., 9/26/22, at 10-11. The SOAB assessor determined Appellant did not meet the requirements for SVP classification.
Appellant and the Commonwealth reached a plea agreement as to the length of incarceration for each conviction. However, the plea remained open in order to permit the Pennsylvania Sexual Offenders Assessment Board (SOAB) to assess whether Appellant met the requirements for sexually violent predator (SVP) classification.
[Appellant] filed a timely[,] counseled post-sentence motion challenging the constitutionality of both SORNA and the mandatory probationary periods [imposed pursuant to Section 9718.5(a)]. [Appellant] argued that SORNA's irrebuttable presumption [that sex offenders pose a high risk of recidivism, set forth at 42 Pa.C.S.A. § 9799.11(a)(4) ("Sexual offenders pose a high risk of committing additional sexual offenses, and protection of the public from this type of offender is a paramount governmental interest."),] is unconstitutional because (1) it violates a person's due process right to reputation, (2) the presumption is not universally true[,] and (3) reasonable alternatives exist for ascertaining the presumed fact. Post Sentence Motion, 2/23/23, ¶ 4. [Appellant] also asserted that SORNA is unconstitutional because its notification and registration requirements constitute punishment in excess of the statutory maximums for the underlying offenses. Id. ¶ 5. [Appellant] further claimed the three-year consecutive probation mandated by [Section] 9718.5 is unconstitutional because it allows for an [indefinite] sentence if a probationer violates his probation after the statutory limit expires for the underlying offense. Id. ¶¶ 6-8.
The Commonwealth argued in response that [Appellant] failed to cite any evidence or authority to support his challenge to the irrebuttable presumption. [See Response to Post-Sentence Motion, 3/29/23, at 3-5 (unpaginated).] The Commonwealth asserted, as a result, that a[n evidentiary] hearing was not required. Finally, the Commonwealth argued [Appellant] had not sufficiently pleaded that [Section 9718.5's] mandatory three-year probation is unconstitutional.Trial Court Opinion, 9/21/23, at 1-3 (footnotes in original; one footnote omitted; citations modified).
The trial court summarized the subsequent procedural history in its Pa.R.A.P. 1925(a) opinion:
[Appellant] appeared for sentencing on February 13, 202[3]. At that time, this court imposed the agreed aggregate sentence of 5-12 years in prison, plus consecutive, mandatory three-year periods of probation for the aggravated indecent assault and statutory sexual assault offenses[,] pursuant to 42 Pa.C.S.A. § 9718.5.FN2 Finally, [Appellant] was ordered to submit to registration as a tier-three [sex] offender[, pursuant to SORNA Revised Subchapter H].FN3
FN2 [Section 9718.5(a)] mandates a three-year period of consecutive probation for any person convicted of an offense enumerated in 42 Pa.C.S.A. § 9799.14(d). Upon further review, this court believes that imposition of the mandatory probation for [Appellant's] conviction … [of statutory sexual assault] was in error because 18 Pa.C.S.A. § 3122.1(a)(1) is not an enumerated offense under 42 Pa.C.S.A. § 9799.14(d). This court, therefore, requests that the Superior Court correct the sentence by vacating
the consecutive mandatory three[ ]years of probation imposed on the conviction under [Section] 3122.1(a)(1).
FN3 Despite the agreed nature of the sentence, [the trial] court acknowledged [at sentencing Appellant's] intention to challenge post-sentence certain aspects of his sentence under … SORNA[ ]. N.T., [2/13]/23, p. 11.
The trial court denied Appellant's post-sentence motion on June 13, 2023, without a hearing. Appellant timely filed a notice of appeal. Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents three issues for review:
I. Is SORNA 42 Pa.C.S.A. § 9799.11(a)(4) unconstitutional because it violates a person's due process right to reputation[, as] the irrebut[t]able presumption is not universally true and reasonable alternative means exist for ascertaining the presumed fact?
II. Is SORNA[,] as amended by Act 29[,] also unconstitutional because its notification and registration provisions constitute punishment which results in a criminal sentence in excess of the statutory maximum and is cruel and unusual punishment?
III. Is 42 Pa.C.S.A. § 9718.5 unconstitutional as violative of the Due Process Clause of the Pennsylvania Constitution because it allows for an indefinite sentence if a probationer violates his probation after the statutory limits expire[,] because the statute does not provide for any type of sentence for a probation violation after the original sentence expired[?]
Appellant's Brief at 4 (citations and capitalization modified).
Preliminarily, we address the legality of the three-year probationary sentence imposed for Appellant's conviction of statutory sexual assault. "Issues relating to the legality of a sentence are questions of law. Our standard of review over such questions is de novo and our scope of review is plenary." Commonwealth v. Prieto, 206 A.3d 529, 534 (Pa. Super. 2019) (citation omitted); see also Commonwealth v. Watson, 228 A.3d 928, 941 (Pa. Super. 2020) (issues relating to the legality of a sentence may be raised sua sponte by an appellate court).
As discussed supra, Section 9718.5(a) mandates a three-year period of consecutive probation for any person convicted of an enumerated offense in Section 9799.14(d). Both the trial court and the Commonwealth correctly concede that (a) 18 Pa.C.S.A. § 3122.1(a)(1) is not an enumerated offense in Section 9799.14(d); and (b) the three-year probationary sentence imposed for this offense is unlawful and must be vacated. See Commonwealth Brief at 4-5 (conceding Section 3122.1(a)(1) "is not an enumerated offense under … [Section] 9799.14(d), and, therefore, the three-year period of probation that was imposed in connection with [Appellant's statutory sexual assault conviction] should be vacated." (emphasis in original)); Trial Court Opinion, 9/21/23, at 2 n.2 (same). Accordingly, we vacate Appellant's sentence of probation imposed for his conviction of statutory sexual assault pursuant to Section 9718.5(a).
We do not vacate the lawful sentence of imprisonment that the trial court imposed on Appellant's statutory sexual assault conviction. Moreover, we observe that our vacatur of the sentence of probation imposed on this conviction does not disturb the trial court's overall sentencing scheme. Specifically, the trial court lawfully sentenced Appellant to a three-year period of consecutive probation, pursuant to Section 9718.5(a), on his aggravated indecent assault conviction, which is an enumerated offense in 42 Pa.C.S.A. § 9799.14(d). See id. § 9799.14(d)(7). Accordingly, we do not remand for resentencing. See Commonwealth v. Lomax, 8 A.3d 1264, 1268-69 (Pa. Super. 2010) (stating when this Court vacates a sentence without disturbing the overall sentencing scheme, there is no need for remand); see also Commonwealth v. Carey, 2 49 A.3d 1217, 1229 (Pa. Super. 2021) (same).
Next, in light of our Supreme Court's recent decision in Commonwealth v. Torsilieri, 316 A.3d 77 (Pa. filed May 31, 2024) (Torsilieri II) (discussed below), we address Appellant's first and second issues together.
In his first issue, Appellant argues SORNA's legislative finding that sex offenders "pose a high risk of committing additional sexual offenses," 42 Pa.C.S.A. § 9799.11(a)(4), is unconstitutional because it (a) creates an improper "irrebuttable presumption" against him; and (b) unlawfully "violates [his] right to reputation." Appellant's Brief at 8 (capitalization modified). In his second issue, Appellant argues SORNA is also unconstitutional because (a) its notification and registration provisions constitute "cruel and unusual" punishment; and (b) the application of SORNA's registration provisions to Appellant results in a sentence that unlawfully exceeds the statutory maximum. See id. at 11-13. Appellant relies on a single authority: the decision of the Chester County Court of Common Pleas in Commonwealth v. Torsilieri, CP-15-CR-1570-2016 (Chester Cty. Com. Pleas) (reversed by Torsilieri II), which, Appellant claims, is "dispositive." Appellant's Brief at 8.
We hereinafter reference the Chester County Torsilieri decision as "Torsilieri-Chester Cty."
The Commonwealth, which filed its brief after Torsilieri II, counters that decision is directly controlling and mandates the rejection of Appellant's constitutional challenges to SORNA. See Commonwealth Brief at 6, 9-23. The Commonwealth points out that the Torsilieri II Court (a) "has specifically rejected the constitutional challenge to the irrebuttable presumption at issue in this matter"; and (b) "ruled that the registration and notification requirements in [Revised S]ubchapter H of SORNA are not punitive and are not unconstitutional." Id. at 6.
Appellant's constitutional challenge is a question of law, for which our standard of review is de novo, and our scope of review is plenary. Commonwealth v. Manzano, 237 A.3d 1175, 1178 (Pa. Super. 2020). "[T]he party challenging the constitutionality of a statute has a heavy burden of persuasion." Id. at 1180 (citation omitted). "A statute is presumed to be constitutional and will not be declared unconstitutional unless it clearly, palpably, and plainly violates the constitution." Villanueva-Pabon, 304 A.3d at 1214 (citations omitted); see also Commonwealth v. Arnold, 284 A.3d 1262, 1270 (Pa. Super. 2022) ("The presumption that legislative enactments are constitutional is strong." (citations omitted)). "[A]ll doubts are to be resolved in favor of a finding of constitutionality." Commonwealth v. Rollins, 292 A.3d 873, 879 (Pa. 2023) (citation omitted).
It is well settled that
[w]hen addressing constitutional challenges to legislative enactments, we recognize that the General Assembly may enact laws which impinge on constitutional rights to protect the health, safety, and welfare of society, but also that any restriction is subject to judicial review to protect the constitutional rights of all citizens.Commonwealth v. Smith, ____ A.3d ____, 2024 PA Super 153, at *7 (Pa. Super. filed July 23, 2024) (citations and quotation marks omitted); see also Torsilieri II, 316 A.3d at 92 ("Statutes creating irrebuttable presumptions are not per se violative of the constitution.").
As our Supreme Court stated in Torsilieri II:
To successfully bring [] a constitutional challenge [to our Legislature's policy enactment] is a tall order, and rightfully so, as generally policy-based arguments are for the policy-making branches. They are not for the judiciary.Torsilieri II, 316 A.3d at 91 (citation and quotation marks omitted).
Indeed, "it will be the rare situation where a court will reevaluate a legislative policy determination, and doing so can only be justified in a case involving the infringement of constitutional rights and a consensus of scientific evidence undermining the legislative determination."Id. (quoting Commonwealth v. Torsilieri, 232 A.3d 567, 596 (Pa. 2020) (Torsilieri I)).
The Torsilieri II Court, in reversing Torsilieri-Chester Cty., initially held that SORNA Section 9799.11(a)(4) does not violate the irrebuttable presumption doctrine:
This Court previously summarized the relevant background of Torsilieri- Chester Cty. as follows:
[I]n July of 2018, "the Chester County Court of Common Pleas declared [Revised] Subchapter H of SORNA unconstitutional as violative of several provisions of both the United States and Pennsylvania Constitutions." … Torsilieri [I], … 232 A.3d [at] 574-75…. The Commonwealth appealed the decision to the Pennsylvania Supreme Court. See id. However, upon the record before it, the [Torsilieri I] Court "was unable to conclude … whether the defendant had significantly undermined the validity of the legislative findings supporting Revised Subchapter H's registration and notification provisions." Id. at 585. Therefore, the Supreme Court remanded the case to the trial court "to provide both parties an opportunity to develop arguments and present additional evidence in determining whether the defendant has refuted the relevant legislative findings supporting the challenged registration and notification provision of Revised Subchapter H." Id. at 596.
Upon remand, the trial court conducted an evidentiary hearing in June of 2021, "at which both parties presented conflicting expert testimony." See 97 MAP 2022 …. Thereafter, on August 23, 2022, the trial court entered an order once again concluding that Revised Subchapter H of SORNA is unconstitutional, and granting the defendant's supplemental motion to bar application of SORNA. The Commonwealth timely appealed to the Supreme Court[, which granted allowance of appeal.]Commonwealth v. Faison, 297 A.3d 810, 836-37 (Pa. Super. 2023) (footnotes, brackets and some citations omitted). On May 31, 2024, our Supreme Court issued Torsilieri II, reversing Torsilieri-Chester Cty. Appellant did not have the benefit of Torsilieri II when he filed his appellate brief in March 2024. The trial court also filed its Pa.R.A.P. 1925(a) opinion prior to Torsilieri II. Finally, Appellant has never advanced "any support, scientific or otherwise, for his challenge to [Section] 9799.11(a)(4)." Trial Court Opinion, 9/21/23, at 6. Rather, Appellant relies solely upon Torsilieri-Chester Cty.
[Defendant's] own experts concede that adult sexual offenders reoffend at a rate of at least three times higher than other individuals convicted of non-sexual offenses. Accordingly, rather than refuting it, the evidence supports the legislative presumption [in Section 9799.11(a)(4)]; the evidence validates the statutory underpinnings of Subchapter H.Torsilieri II, 316 A.3d 77 at 99-100 (internal citations and footnote omitted; italics in original). The Court further held that Subchapter H is not punitive, and does not constitute cruel and unusual punishment:
[T]he General Assembly created a tier-based classification system organized by seriousness of the offense, which, in turn, is tied to the degree of harm caused by the crime. This is a policy-based decision vested in the legislature. Like Subchapter I, we find that Subchapter H significantly changed the original version of SORNA with the apparent goal of ensuring that the legislation was not punitive in nature. Indeed, Subchapter H has a significantly less burdensome impact on the life of the offender than its predecessor. Moreover, … not only does Subchapter H offer a valid non-punitive purpose of informing and protecting the public, but … [there is no] compelling evidence establishing that its registration and notification requirements … [are] not rationally or reasonably related to this legislative purpose.Id. at 108-09 (emphasis added).
Instantly, Torsilieri II is directly on-point and compels rejection of Appellant's constitutional challenges to SORNA Subchapter H. See id. at 99-100, 108-09. Accord Commonwealth v. Guo, 2024 WL 3200042, 643 WDA 2023 (Pa. Super. filed June 27, 2024) (unpublished memorandum at 5, 6) (applying Torsilieri II and rejecting appellant's "challenge to his SVP status under the irrebuttable presumption doctrine," as well as his "claim that his SVP designation under Subchapter I of SORNA [] violated his right to reputation under the Pennsylvania [C]onstitution").
Pursuant to Pa.R.A.P. 126(b)(1)-(2), unpublished non-precedential memorandum decisions of the Pennsylvania Superior Court filed after May 1, 2019, may be cited for their persuasive value.
Moreover, there is no merit to Appellant's claim that SORNA is unconstitutional because its notification and registration provisions permit punishment in excess of the statutory maximum sentences for the underlying offenses. This Court has held, "a sentencing requirement for a defendant to register as a sexual offender for a period of time exceeding the lawful statutory maximum for his offense is not illegal." Commonwealth v. Martin, 205 A.3d 1247, 1250 (Pa. Super. 2019).
SORNA's registration requirements are an authorized punitive measure separate and apart from [an underlying sentence] of incarceration. The legislature did not limit the authority of a court to impose registration requirements only within the maximum allowable term of incarceration; in fact, the legislature mandated the opposite and required courts to impose registration requirements in excess of the maximum allowable term of incarceration.Id. at 1251 (quoting Commonwealth v. Bricker, 198 A.3d 371, 377 (Pa. Super. 2018) (citation omitted)). Based on the foregoing, we discern no error or abuse of the trial court's discretion in rejecting Appellant's first and second issues.
Although the trial court, in its Rule 1925(a) opinion, rejected these issues based on different, preTorsilieri II reasoning, this Court may affirm on any basis. Commonwealth v. Katona, 191 A.3d 8, 16 (Pa. Super. 2018) ("[W]e may affirm if there is any basis on the record to support the trial court's action, even if we rely on a different basis.").
In his third and final issue, Appellant claims 42 Pa.C.S.A. § 9718.5 is unconstitutional as violative of his due process rights. See Appellant's Brief at 13-15. Specifically, Appellant argues Section 9718.5 unlawfully
allows for an indefinite sentence if a probationer violates his probation after the statutory [time] limits expire[, because the
statute does not provide for any type of sentence for a probation violation after the original sentence expired.Id. at 13 (footnote added; capitalization modified). Appellant emphasizes,
Pennsylvania law requires a definite term of imprisonment. Commonwealth v[.] Stul[ ]tz, 114 A.3d 865, 885 (Pa. Super. 2015) [(citing] 42 Pa.C.S. § 9721(e) [("All sentences of imprisonment imposed under this chapter shall be for a definite term."))]. However, the mandatory period of probation for certain sexual offenders statute [(Section 9718.5)] violates that requirement in this case.
It is undisputed that Appellant's mandatory three-year period of probation, imposed on his aggravated indecent assault conviction under Section 9718.5(a), has not yet commenced.
Appellant's Brief at 13.
The Commonwealth counters Appellant's claim is non-justiciable because it not ripe for appellate review. See Commonwealth Brief at 24-27. The Commonwealth emphasizes that the "circumstances necessary for [A]ppellant to actually be subject to the harm from the provisions of [Section 9718.5] that [A]ppellant seeks to challenge have not occurred and may never occur." Id. at 24; see also id. at 26, 27 ("[A]ppellant is not currently serving the three-year mandatory period of probation imposed" under Section 9718.5(a), and "it is possible that he will never violate the terms of his probation.").
"Issues of justiciability are a threshold matter generally resolved before addressing the merits of the parties' dispute." Robinson Twp., Washington Cty. v. Commonwealth, 83 A.3d 901, 917 (Pa. 2013). "A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Texas v. United States, 523 U.S. 296, 300 (1998) (citations and quotation marks omitted).
The doctrine of ripeness seeks to avoid advisory opinions, i.e.,
having our [appellate courts] prematurely adjudicate a controversy, and thereby become entangled in resolving an abstract or hypothetical issue, whenever no party has[ ] yet[ ] suffered a concrete harm which could be alleviated through appellate review.Commonwealth v. UPMC, 129 A.3d 441, 473 (Pa. 2015); see also Commonwealth v. Koehler, 229 A.3d 915, 940-41 (Pa. 2020) ("The courts in our Commonwealth do not render decisions in the abstract or offer purely advisory opinions …." (citation omitted)); Commonwealth v. Sitler, 144 A.3d 156, 168 (Pa. Super. 2016) ("The courts should not give answers to academic questions or render advisory opinions or make decisions based on assertions as to hypothetical events that might occur in the future." (citation and brackets omitted)).
Here, Appellant's claim "rests upon contingent future events that may not occur … at all." Texas, 523 U.S. at 300. Accordingly, his final issue entitles him to no relief based on its non-justiciability.
Nevertheless, even if this issue was ripe for review, we would determine Appellant's challenge to Section 9718.5's constitutionality lacks merit. The trial court concisely addressed this claim in its Rule 1925(a) opinion:
[Appellant] pleaded guilty to violating 18 Pa.C.S.A. § 3125(a)(8), which is an offense enumerated in 42 Pa.C.S.A. § 9799.14(d), thereby triggering the imposition of the mandatory period of probation. [Section 9718.5] expressly bars the exercise of discretion in imposing the probation period. See [id.] § 9718.5(c). As discussed above, statutory enactments are presumed to be constitutional. This court, therefore, was constrained to impose the mandatory three-year probation period
and [Appellant] is not entitled to relief. See, e.g., Commonwealth v. Perry, 285 A.3d 950, 2022 WL 4457922 … (Pa. Super. 2022) [(unpublished memorandum at 13-14)] (recognizing statutory authority [under Section 9718.5] to impose mandatory probation term in addition to maximum sentence).
Trial Court Opinion, 9/21/23, at 7 (footnote and some citations omitted; citations modified). The trial court's reasoning is supported by the law and the record, and we agree with its conclusion. See id. We are also persuaded by the Commonwealth's argument that
a person who violates the terms of his § 9718.5 probation after the expiration of the otherwise applicable statutory maximum sentence can lawfully be re-sentenced to additional periods of probation. The provisions of § 9718.5 do not facially violate the constitutions of the United States or the Commonwealth of Pennsylvania.
Commonwealth Brief at 34-35. Thus, Appellant's claim would not merit relief.
For the above-stated reasons, we vacate Appellant's three-year sentence of probation for statutory sexual assault, and affirm Appellant's remaining sentences.
Judgment of sentence affirmed in part and vacated in part, in accordance with this memorandum. Jurisdiction relinquished.
Judgment Entered