Com. v. Chai, J.

• Court: Superior Court of Pennsylvania
• Decided: August 1, 2023
• Docket: 135 WDA 2018
• Status: Unpublished

Opinion

J-S15045-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JERRY CHAI : : Appellant : No. 135 WDA 2018

Appeal from the Judgment of Sentence Entered September 25, 2017 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0005246-2014

BEFORE: BOWES, J., STABILE, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED: AUGUST 1, 2023

Jerry Chai (“Chai”) appeals from the judgment of sentence imposed

following his conviction for indecent assault.1 This matter returns to this Court

after our Supreme Court remanded for this Court to apply Commonwealth

v. Thorne, 276 A.3d 1192 (Pa. 2022) (holding that legality-of-sentence

claims involving current Subchapter H of Pennsylvania’s Sexual Offender

Registration and Notification Act2 (“SORNA”) can be raised for the first time

on appeal). We remand.

The parties are familiar with the factual and procedural history of this

appeal, and we briefly note that in 2014, Chai sexually assaulted S.F. A jury

found Chai guilty of indecent assault, and, on September 25, 2017, the trial

court sentenced him to two years of probation and directed him to register for ____________________________________________

1 See 18 Pa.C.S.A. § 3126(a)(1).

2 See 42 Pa.C.S.A. §§ 9799.11-9799.42 (as amended effective 2018). J-S15045-23

fifteen years as a sexual offender pursuant to Subchapter H. Chai took a

timely appeal challenging: (1) the impartiality of a juror; (2) the weight of the

evidence; and (3) his registration requirement, which he claimed constituted

an illegal sentence and violated his reputational rights.3 This Court affirmed

the judgment of sentence and, in relevant part, held that Chai waived his

claims that his registration requirement constituted an illegal sentence. See

Commonwealth v. Chai, 253 A.3d 277, 2021 WL 1386572, at *8 (Pa. Super.

2021) (unpublished memorandum) (finding Chai’s legality-of-sentence

challenge to Subchapter H waived pursuant to Commonwealth v. Reslink,

257 A.3d 21 (Pa. Super. 2020)).4

Chai filed a petition for allowance of appeal (“PAA”) in our Supreme

Court. Thereafter, our Supreme Court issued its decision in Thorne, which

disapproved of the waiver analysis in Reslink and held that challenges to

SORNA which implicate legality-of-sentence claims cannot be waived. See

Thorne, 276 A.3d at 1197-98. In the present case, the Court granted Chai’s ____________________________________________

3 Specifically, in his original brief to this Court (“Chai’s Brief”), Chai asserted

that his fifteen-year registration requirement exceeded the lawful maximum penalty for his conviction. See Chai’s Brief, 8/22/18, at 67. Further, in conjunction with his due process claims involving the irrebuttable presumptions of future dangerousness and likelihood to reoffend, he asserted that his registration requirement constituted a cruel and unusual punishment. See Chai’s Brief, 8/22/18, at 67-69. Chai cited research contradicting the presumption of dangerousness. See id. at 65-66.

4 Our esteemed colleague, the Honorable Mary Jane Bowes, concurred in the

prior decision and highlighted the problems of applying the waiver analysis set forth in Reslink. See Chai, 2021 WL 1386572, at *8-9 (Bowes, J., concurring).

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PAA as to the SORNA issues and remanded to this Court to apply Thorne.

See Commonwealth v. Chai, 285 A.3d 885 (Pa. 2022) (per curiam order).

The Court denied allowance of appeal on Chai’s remaining issues. See id. at

886.

Following our Supreme Court’s remand, Chai filed in this Court a

supplemental brief requesting a remand to the trial court to afford him the

opportunity to substantiate his claims that his SORNA registration requirement

constituted an illegal sentence. The Commonwealth submitted a letter stating

that it did not oppose a remand to the trial court.

This Court, in Commonwealth v. Boyd, 287 A.3d 957 (Pa. Super.

2022), addressed similar procedures and claims involving legality-of-sentence

claims concerning Subchapter H. See Boyd, 287 A.3d at 958-59. The Boyd

Court remanded to the trial court for the development of a factual record on

claims that a Subchapter H registration requirement constituted an illegal

sentence. See id. at 960. Here, as in Boyd, we conclude that a remand is

appropriate for the development of the record on Chai’s legality-of-sentence

claims concerning his registration requirement.5

____________________________________________

5 We are mindful that in May 2023, our Supreme Court heard oral arguments

in Commonwealth v. Torsilieri, 97 MAP 2022, to consider the Commonwealth’s appeal from a trial court’s decision that current Subchapter H contains an unconstitutional irrebuttable presumption of recidivism, is punitive, and imposes unconstitutional punishments. We note that both Torsilieri and Boyd involve lifetime registration requirements, whereas the instant appeal involves a fifteen-year registration requirement. Nevertheless, we conclude that Chai, like Boyd, should have an opportunity to substantiate his legality-of-sentence claims.

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Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/1/2023

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