Com. v. Chittester, M.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

MICHAEL CHITTESTER :

:

Appellant : No. 256 WDA 2020

Appeal from the Judgment of Sentence Entered December 12, 2019 In the Court of Common Pleas of Elk County Criminal Division at No(s):

CP-24-CR-0000053-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

MICHAEL ALLEN CHITTESTER :

:

Appellant : No. 257 WDA 2020

Appeal from the Judgment of Sentence Entered December 12, 2019 In the Court of Common Pleas of Elk County Criminal Division at No(s):

CP-24-CR-0000449-2018

BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED: JANUARY 04, 2023

Appellant, Michael Allen Chittester, appeals from the aggregate

judgment of sentence of 37½ to 75 years’ incarceration, followed by 15 years’

probation, imposed after he was convicted of various sexual offenses in two

separate, but consolidated cases.1 Herein, Appellant solely challenges the

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1 This Court sua sponte consolidated Appellant’s appeals by per curiam order filed July 17, 2020.

constitutionality of Revised Subchapter H of the Sexual Offender Registration

and Notification Act (“SORNA II”).2 After careful review, we affirm Appellant’s

judgment of sentence, but remand for further proceedings consistent with this

memorandum decision.

We need not discuss the facts underlying Appellant’s convictions. We

only note that he was convicted of numerous sexual offenses — including rape

of a child less than 13 years of age, aggravated assault, and involuntary

deviate sexual intercourse — based on his “having oral and anal sex with his

stepdaughter … when she was between the ages of five and ten.” Appellant’s

Brief at 5. Appellant’s offenses occurred in both Elk and McKean Counties,

and took place between the dates of October 1, 2014, and October 6, 2018.

Id. On December 12, 2019, the court imposed the aggregate sentence stated

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2See 42 Pa.C.S. §§ 9799.10-9799.42. We observe that SORNA was originally enacted on December 20, 2011, effective December 20, 2012. See Act of Dec. 20, 2011, P.L. 446, No. 111, § 12, effective in one year or Dec. 20, 2012 (Act 11 of 2011). Act 11 was amended on July 5, 2012, also effective December 20, 2012, see Act of July 5, 2012, P.L. 880, No. 91, effective Dec. 20, 2012 (Act 91 of 2012), and amended on February 21, 2018, effective immediately, known as Act 10 of 2018, see Act of Feb. 21, 2018, P.L. 27, No. 10, §§ 1-20, effective Feb. 21, 2018 (Act 10 of 2018), and, lastly, reenacted and amended on June 12, 2018, P.L. 140, No. 29, §§ 1-23, effective June 12, 2018 (Act 29 of 2018). Acts 10 and 29 of 2018 are generally referred to collectively as SORNA II. Through Act 10, as amended in Act 29, the General Assembly split SORNA I’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. §§ 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. §§ 9799.10-9799.42.

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supra. Appellant was not deemed to be a sexually violent predator, but he

was notified that he is subject to lifetime registration as a Tier III sex offender

under Revised Subchapter H of SORNA II. See 42 Pa.C.S. § 9799.14(d)(16).

Appellant filed a timely, post-sentence motion, which was denied on

January 28, 2020. He then filed a timely notice of appeal, after which his

counsel sought, and was granted, leave to withdraw. The court appointed

new counsel for Appellant, and after delays due to the COVID-19 pandemic,

counsel complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. The trial court filed a Rule

1925(a) opinion on August 20, 2020. Herein, Appellant raises five issues for

our review:

A. Whether [SORNA II] violates substantive due process under Article 11 of the Pennsylvania Constitution because it deprives individuals of the fundamental right to reputation and fails to satisfy strict scrutiny?

B. Whether [SORNA II] violates due process under Articles 1 and 11 of the Pennsylvania Constitution because it creates an irrebuttable presumption that those convicted of enumerated offenses “pose a high risk of committing additional sexual offenses” depriving those individuals of their fundamental right to reputation when this presumption is not universally true?

C. Whether lifetime registration under [SORNA II] denied Appellant procedural due process under the Pennsylvania and Federal Constitutions because it unlawfully impinges the right to reputation without notice and an opportunity to be heard?

D. Whether lifetime registration under [SORNA II] constitutes criminal punishment and[,] therefore[,] violates the separation of powers doctrine because it usurps exclusive judicial adjudicatory and sentencing authority?

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E. Whether lifetime registration under [SORNA II] is punishment under the Mendoza-Martinez[3] test and it contravenes the 5th, 6th and 14th Amendments of the United States Constitution and the corresponding protections of the Pennsylvania Constitution, [see] Apprendi [v. New Jersey], [530 U.S. 466] (2000)[,] and Alleyne [v. United States], 570 U.S. 99 (2013), when not every fact necessary to support the imposition of a mandatory[-] minimum sentence must be found by a jury beyond a reasonable doubt?

Appellant’s Brief at 4.

Appellant’s issues all challenge the constitutionality of Revised

Subchapter H of SORNA II. “The constitutionality of a statute presents a ‘pure

question of law,’ over which our standard of review is de novo[,] and our scope

of review is plenary.” Commonwealth v. Brooker, 103 A.3d 325, 334 (Pa.

Super. 2014). Moreover, our Supreme Court has declared:

In addressing constitutional challenges to legislative enactments, we are ever cognizant 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.” In re J.B., … 107 A.3d 1, 14 ([Pa.] 2014). We emphasize that “a party challenging a statute must meet the high burden of demonstrating that the statute clearly, palpably, and plainly violates the Constitution.” Id.

Commonwealth v. Torsilieri, 232 A.3d 567, 575 (Pa. 2020).

As Appellant recognizes, the claims he raises herein mirror those

addressed by our Supreme Court in Torsilieri. See Appellant’s Brief at 16

(“[T]he issues raised by Torsilieri are controlling to Appellant’s appeal.”); id.

at 17 (“Appellant currently raises the same issues as Torsilieri.”). See also

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3 Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).

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Trial Court Opinion, 8/17/20, at 2 (finding that Appellant’s “constitutional

challenges are similar to what the Supreme Court of Pennsylvania addressed

in Torsilier[i]”) (unnumbered). There, Torsilieri challenged his registration

requirements under Revised Subchapter H in post-sentence proceedings. The

foundation of his arguments consisted of expert scientific evidence indicating

that “sexual offenders generally have low recidivism rates and questioning the

effectiveness of sexual offender registration systems[.]” Torsilieri, 232 A.3d

at 574. Based largely upon this evidence, the trial court declared Revised

Subchapter H unconstitutional under several interrelated theories, including

that Subchapter H impaired Torsilieri’s “right to reputation” under the

Pennsylvania Constitution by utilizing an “irrebuttable presumption” that all

registrants pose a high risk of recidivism. Id. at 574-75.

The Torsilieri trial court also concluded that Revised Subchapter H was

“punitive” pursuant to the seven factors set forth in Mendoza-Martinez. Id.

at 588-94. This conclusion “inevitably resulted” in a number of additional

rulings:

[T]he trial court concluded that (1) [Revised] Subchapter H violated the dictates of Alleyne … and Apprendi … because it subjected offenders to increased registration provisions without a jury determining that the offender posed a risk of future dangerousness beyond a reasonable doubt; (2) the registration periods constituted illegal sentences in excess of the statutory maximum terms of incarceration; (3) the provisions resulted in an excessive sentence in violation of the federal and state constitutional provisions related to cruel and unusual punishments; and (4) [Revised] Subchapter H violated the separation of powers doctrine by encroaching upon the judiciary’s fact-finding and individualized sentencing responsibilities.

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Id. at 594.

On direct appeal, our Supreme Court determined that the trial court had

correctly considered Torsilieri’s scientific evidence. Id. at 584. However, the

Court ultimately remanded the case for further development of the record and

arguments, reasoning:

[A]s the trial court did not have the benefit of the opposing science, if any, the evidence currently in the record does not provide a sufficient basis to overturn the legislative determination. Accordingly, we conclude that the proper remedy is to remand to the trial court to provide both parties an opportunity to develop arguments and present additional evidence and to allow the trial court to weigh that evidence in determining whether [Torsilieri] has refuted the relevant legislative findings supporting the challenged registration and notification provisions of Revised Subchapter H.

Id. at 596.

Pertinent to the instant case, after Torsilieri, this Court decided

Commonwealth v. Reslink, 276 A.3d 1192 (Pa. Super. 2020), holding that

Reslink’s constitutional challenges to Revised Subchapter H were waived due

to his failure to raise them in the trial court. Because, here, Appellant also

did not assert his constitutional challenges to Revised Subchapter H in his

post-sentence motion but, instead, presented them for the first time in his

Rule 1925(b) statement, this panel originally concluded that Appellant had

waived his claims for our review under the rationale of Reslink.4

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4 The Honorable Daniel D. McCaffery filed a concurring statement, joined by this author and the Honorable Anne E. Lazarus, agreeing that we were bound by Reslink to find waiver, but urging our Supreme Court to consider whether constitutional challenges to a sentence are subject to waiver.

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However, on June 22, 2022, our Supreme Court issued

Commonwealth v. Thorne, 276 A.3d 1192 (Pa. 2022), expressly

disapproving of Reslink, and holding that Thorne “did not waive

his Apprendi-based and cruel and unusual punishment challenges to the

lifetime registration requirement set forth in Revised Subchapter H by raising

them for the first time in his brief to the Superior Court, because such claims

implicate the legality of a sentence and, therefore, cannot be waived.”

Thorne, 276 A.3d at 1197-98. Following Thorne, Appellant filed a timely

petition for allowance of appeal with our Supreme Court. On August 30, 2022,

the Court granted Appellant’s petition, vacated our panel decision, and

remanded for us to reconsider our decision in light of Thorne. We now

conclude that, under Thorne, Appellant’s constitutional challenges to Revised

Subchapter H implicate the legality of his sentence and, thus, are not waived

based on his failure to raise them below. Accordingly, we will address the

merits of Appellant’s claims herein.

Again, Appellant acknowledges that his constitutional challenges to

Revised Subchapter H mirror those presented in Torsilieri. They also are the

same claims recently raised and addressed by this Court in Commonwealth

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v. Escabal, No. 1928 EDA 2021, unpublished memorandum at *2-3 (Pa.

Super. filed Oct. 11, 2022).5 There, the Escabal panel observed that,

[t]his Court recently rejected claims asserting, as [Escabal] does, that we may venture beyond our Supreme Court’s ruling in Torsilieri and uphold constitutional challenges to Revised Subchapter H as a matter of law in the absence of factual development: 1) demonstrating a consensus of scientific evidence disproving the legislature’s presumptions concerning the risk of re-offense or 2) establishing the clear proof needed to overcome a statutory declaration that a provision is not punitive. See Commonwealth v. Wolf, 276 A.3d 805, 813 (Pa. Super. 2022). Moreover, our Supreme Court has been clear that it has not yet declared that Revised Subchapter H is punitive in nature or that Apprendi-based and cruel and unusual punishment challenges to registration under Revised Subchapter H will succeed on the merits. See … Thorne, 276 A.3d [at] 1198 … ([stating that] “our decision [in Thorne] does not in any way establish that Revised Subchapter H is punitive in nature and/or that [Thorne’s] underlying [Apprendi-based and cruel and unusual punishment] claims will be successful on the merits”) (emphasis added).5 [Escabal] has not presented compelling reasons to depart from these recent pronouncements and we perceive none. Accordingly, we reject [Escabal’s] request that we declare Revised Subchapter H in violation of constitutional principles and statutory provisions as a matter of law.

5Since the law in Pennsylvania presently holds that Revised Subchapter H is not punitive, [Escabal’s] statutory claims, which rest on the contention that registration pursuant to Revised Subchapter H constitutes a criminal sentence, are without merit.

Id. at *6.

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5 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the Superior Court filed after May 1, 2019, may be cited for their persuasive value).

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Notably, Escabal “presented pre- and post-sentence motions

challenging the validity of Revised Subchapter H,” but “the trial court did not

entertain evidence relating to those objections.” Id. at *7. Thus, the Escabal

panel “vacate[d] the orders denying [Escabal’s] pre- and post-sentence

motions and remanded for further proceedings at which the parties [could]

present evidence for and against the relevant legislative determinations and

the challenges discussed above.” Id. (citing Commonwealth v. Mickley,

240 A.3d 957, 963 (Pa. Super. 2020) (vacating the order denying post-

sentence motion and remanding for evidentiary hearing at which the parties

could submit evidence pertinent to legislative determinations and application

of Revised Subchapter H)).

Here, by contrast, Appellant never presented his constitutional

challenges to Revised Subchapter H to the trial court in a pre- or post-sentence

motion.6 Nevertheless, considering our Supreme Court’s holding in Thorne

that Appellant’s issues constitute non-waivable challenges to the legality of

his sentence, we believe it is appropriate to remand to the trial court for

Appellant to have the opportunity to file, within 10 days of the date of this

memorandum decision, a nunc pro tunc post-sentence motion asserting his

constitutional challenges to Revised Subchapter H. If Appellant does so, the

court shall hold a hearing to “provide both parties an opportunity to develop

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6We note that, unlike in Escabal, the Court’s decision in Torsilieri was filed months after Appellant’s judgment of sentence was imposed and the time expired for him to file a post-sentence motion.

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arguments and present additional evidence” so that the court may then “weigh

that evidence in determining whether [Appellant] has refuted the relevant

legislative findings supporting the challenged registration and notification

provisions of Revised Subchapter H.” Torsilieri, 232 A.3d at 596.

Judgment of sentence affirmed. Case remanded for further

proceedings. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 01/04/2023