Com. v. Elliott, A.

2021 Pa. Super. 58

• Court: Superior Court of Pennsylvania
• Decided: April 5, 2021
• Docket: 3066 EDA 2019
• Status: Published

Opinion

J-S56015-20

2021 PA Super 58

COMMONWEALTH 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.*

CONCURRING OPINION BY PELLEGRINI, J.: FILED: APRIL 5, 2021

Before us is an appeal by Alfred Elliott (Appellant) from an order of the

Court of Common Pleas of Philadelphia County (PCRA court) dismissing his

petition under the Post-Conviction Relief Act (PCRA) seeking to vacate the

reporting requirements imposed under the Sexual Offenders Registration and

Notification Act (SORNA) as untimely.1

In his PCRA petition, Appellant claimed that the new SORNA reporting

requirements violate the ex post facto clause of the United States Constitution

because they are punitive in nature precluding their retroactive application.

In his brief to this Court, Appellant contends that his due process rights under

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* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9799.10- 9799.41. J-S56015-20

the United States Constitution have been violated because there is no rational

basis to impose those requirements on him because he is not a high risk of

being a recidivist. He also claims that causing him to register as a sex offender

violates his inherent right to reputation under Article I, Section 1 of the

Pennsylvania Constitution, and before that right can be taken away, he is

entitled to a hearing. Without addressing the merits, the PCRA court

dismissed the petition as untimely because it was filed more than one year

after his conviction became final.

Relying on Commonwealth v. Smith, 240 A.3d 654, 658 (Pa. Super.

2020), which held that because SORNA imposes non-punitive, administrative

requirements substantive claims challenging SORNA registration requirements

are not cognizable under the PCRA, the majority finds that the PCRA court

erred in dismissing the petition as untimely. See also Commonwealth v.

Moose, ___ A.3d ___, 2021 Pa. Super 2 (Jan. 4, 2021). However, the

majority then goes on to dismiss the PCRA petition, finding that there were no

merits to his claims he raised on appeal. It held that his ex post facto claim

is without merit because in Commonwealth v. Lacombe, 234 A.3d 602 (Pa.

2020), our Supreme Court held that SORNA registration requirements were

not punitive in nature and, therefore, the ex post facto clause is inapplicable.

As to due process and reputation claims, the majority dismisses those claims

because they were not raised in the PCRA petition, as well as the arguments

were not fully developed in Appellant’s brief.

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I agree with the majority that the trial court erred in even conducting

an analysis under the PCRA to determine that it was timely. The PCRA only

“provides for an action by which persons convicted of crimes they did not

commit and persons serving illegal sentences may obtain collateral relief.” 42

Pa.C.S. § 9542. Because SORNA registration requirements are not criminal,

then by definition, those requirements are not part of the criminal sentence.

Moreover, SORNA itself does not give the trial court jurisdiction to

impose SORNA obligations as part of the sentence as it is just one of many

entities that has to inform a sex offender of his obligation to register. 42

Pa.C.S. § 9799.20 provides:

In order to implement the provisions of section 9799.19 (relating to initial registration), as appropriate, the Pennsylvania State Police, the court having jurisdiction over the sexual offender, the chief juvenile probation officer of the court and the appropriate official of the Pennsylvania Board of Probation and Parole, county office of probation and parole, the Department of Public Welfare or a State or county correctional institution shall:

(1) Inform the individual required to register of the individual’s duties under this subchapter.

(2) Require the individual to read and sign a form stating that the duty to register has been explained and that the individual understands the registration requirement.

(3) Collect the information required under section 9799.16 (b) and (c) (relating to registry) and forward the information to the Pennsylvania State Police for inclusion in the registry as set forth in this subchapter.

Tellingly, the court’s failure to do so is irrelevant: “Failure by the court

to provide the information ... to correctly inform ... or to require a sexual

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offender to register shall not relieve the sexual offender from the requirements

of this subchapter.” 42 Pa.C.S. § 9799.23(b)(1). In fact, with limited

exceptions, a court has “no authority to relieve a sexual offender from the

duty to register ... or to modify the requirements[.]” 42 Pa.C.S.

§ 9799.23(b)(2).

From the above, it is clear that the PCRA is not the proper vehicle for

challenging SORNA registration requirements because, as a collateral

consequence of a criminal conviction, there was no illegal sentence; in fact,

no sentence at all to correct.2

Where I part company with the majority is that I would not have

addressed the substantive issues that Appellant raised or failed to properly

raise but would have dismissed his PCRA petition as not setting forth a claim

that falls within its statutory provisions; here, an illegal sentence. If he

continues to desire to challenge the SORNA registration requirements,

2 It is problematic that SORNA registration requirements in a direct appeal of the prescribed crime because all the trial court does is inform the defendant of the collateral civil consequences of the conviction of the prescribed crime which does not result in an appealable order on the docket from which to appeal. See Pa.R.A.P. 301(a). The scheme echoes the trial court’s responsibility under 75 Pa.C.S. § 1540 requirements that the trial court or the district attorney, upon conviction by an offense which calls for mandatory suspension of an individual’s operating privilege, to inform the defendant that the suspension shall be effective within 60 days. A challenge to the imposition of those collateral consequences are not part of the appeal of the underlying offense, e.g., driving under the influence.

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Appellant needs to bring a due process “as applied” challenge in the

Commonwealth Court’s original jurisdiction3 to enjoin the Pennsylvania State

Police, the agency charged under 42 Pa.C.S. § 9799.22 and 42 Pa.C.S.

§ 9799.32, with implementing and enforcing SORNA, from enforcing those

requirements as applied to him. Those types of challenges will be tried in

accordance with Chapter 15 of the Pa. Rules of Appellate Procedure which

incorporates the Rules of Civil Procedure which provide for an orderly way for

a prompt disposition of the civil claims involved here.

According, for the foregoing reason, I respectfully concur in the

majority’s decision to dismiss Appellant’s PCRA petition.

342 Pa. C.S. § 761(a) provides “General rule.--The Commonwealth Court shall have original jurisdiction of all civil actions or proceedings: (1) Against the Commonwealth government, including any officer thereof, acting in his official capacity …,”.

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